ANNALS OF HEALTH LAW Advance Directive

VOLUME 25 SPRING 2016 PAGES 95-108

95

Saving Homeless Lives Through Established Mental Health Laws

Victor E. Ramos*

INTRODUCTION

On January 3, 2016, New York Governor, Andrew Cuomo, signed

Executive Order Number 151 (hereinafter “Order 151” or “Order”), which

requires state officials and agents to transport and provide homeless persons,

by force if necessary, with shelter when temperatures fall below freezing.1

This expanded, yet focused, application of New York’s mental health laws

simultaneously provides access to mental health care and shelter by

authorizing the involuntary placement of individuals when statutory

requirements are met.2 Critics argue that placing people in shelters against

their will encroaches upon individual rights and raises due process concerns.3

However, these concerns only arise when placement in shelter is involuntary,

and they are safeguarded by statutory procedures that prevent unnecessarily

prolonged placements.4 Through the use of existing mental health laws, states

must prevent death or severe bodily harm of homeless persons when

temperatures fall below freezing by providing shelter and access to mental

*J.D. Candidate, May 2017, Loyola University Chicago School of Law. 1. Emergency Declaration Regarding Homelessness During Inclement Winter Weather,

Exec. Order No. 151, 38 N.Y. St. Reg. 111 (Jan. 27, 2016), https://www.governor.ny.gov/sites/ governor.ny.gov/files/atoms/files/EO151.pdf [hereinafter N.Y. Exec. Order No. 151].

2. N.Y. MENTAL HYG. LAW § 9.41 (West 2016) (regarding emergency admissions for immediate observation, care, and treatment).

3. Mark S. Kaufman, ‘Crazy’ Until Proven Innocent? Civil Commitment of the Mentally Ill Homeless, 19 COLUM. HUM. RTS. L. REV. 333, 333 (1988).

4. In re Lance H., 931 N.E.2d 734, 738-39 (Ill. App. Ct. 2010).

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health care.

This article narrowly focuses on the interrelation amongst existing state

laws that provide access to mental health care, homelessness, and preventing

deaths due to exposure in times of inclement weather.5 Part I of this article

explores the origins of Order 151 as well as its current application and

benefits. Part II describes the framework generally provided by the existing

mental health laws of various states and how its application can be tailored

to provide the homeless population with greater access to mental health care.

Part III addresses the state’s duty to protect its most vulnerable citizens and

allays due process concerns. Finally, Part IV suggests further legislative

action must be taken to protect the homeless population and improve access

to mental health care, and mental health professionals should drive such

action.

I. NEW YORK ORDER 1511

Order 151 declares sub-freezing temperatures to be life-threatening within

the meaning of New York Mental Hygiene Law § 9.41 (hereinafter referred

to as “§ 9.41”).6 Under the statute, state actors and agents are empowered to

forcibly place individuals that they believed would pose a threat to

themselves or others in healthcare facilities for admission or assessment.7

Taken together, the Order and statute grant government personnel the

5. Mental illness is only one cause of homelessness. For information on other causes see Lorne Sossin, The Criminalization and Administration of the Homeless: Notes on the Possibilities and Limits of Bureaucratic Engagement, 22 N.Y.U. REV. L. & SOC. CHANGE 623, 637 (1996); see also U.S. CONF. OF MAYORS, HUNGER AND HOMELESSNESS SURVEY: A STATUS

ON HUNGER AND HOMELESS IN AMERICA’S CITIES 1, 2 (2014), http://www.usmayors.org/press releases/uploads/2014/1211-report-hh.pdf. This survey does not address the varying definitions of “mental illness” for each state; nor does it discuss in-depth the complex nature of diagnosing and determining when mental illness is involved. Use of the term “homeless” means persons who live and sleep on the streets, out of doors, and in public areas (i.e. not in shelters). Herein, the common statutory elements required for involuntary placement, “mental illness” and “imminent threat of physical harm to one’s self or others,” are treated plainly.

6. N.Y. Exec. Order No. 151, supra note 1. 7. MENTAL HYG. § 9.41.

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authority to involuntarily transport “individuals who refuse to go inside and

who appear at-risk for cold related injuries to appropriate facilities for

assessment.”8

A. Background

Order 151 perpetuates an effort that began in 1982 when New York City

ordered its social workers to encourage homeless persons to voluntarily

accept shelter.9 City officials created the policy to prevent deaths from winter

exposure.10 If a homeless individual refused assistance, social workers were

to obtain judicial orders to detain the person for seventy-two hours.11

The city aggressively deployed this strategy after a woman froze to death,

despite several attempts to provide her with aid.12 However, enforcement of

this policy crept beyond its originally intended scope. For example, in 1985,

use of the policy expanded to temperatures that were barely below freezing.13

In 1987, the city’s enforcement of the policy extended furthest when it

disregarded the statutorily required mental health assessment or actual mental

illness and forcibly placed individuals who refused to seek shelter voluntarily

or appeared unable to care for themselves—regardless of temperature.14 The

city justified this broadest application of its policy using the logic that

“[t]hose who may be dangerous in the ‘reasonably foreseeable future’ are

also ‘likely to result in serious harm’ and may be detained.”15

The city policy failed to find statewide support and succumbed to its own

overreaching.16 Overly broad policy enforcement focused the state

8. N.Y. Exec. Order No. 151, supra note 1. 9. Kaufman, supra note 3, at 339. 10. Id. 11. Id. 12. Id. 13. Id. at 340. 14. Id. 15. Id. at 341. 16. Id.

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legislature’s attention on the presumptive aspect of the city policy.17 For

instance, were the individuals to be detained already in life-threatening

danger or should the foreseeability of this danger be questioned?18 Further,

the legislature looked to the meaning of “life-threatening danger.”19 The state

assembly failed to adopt the city’s interpretation of the statute.20 With its

policy stymied, the city’s efforts faded as homeless individuals took steps to

avoid detection, resulting in people being left out in the cold.21 Ultimately,

the city’s broad application of involuntary placement statutes during the

1980s was self-defeating.

Re-implementing New York City’s policy of involuntary placement when

necessary simultaneously provides access to mental health care and shelter.

In times of sub-freezing temperatures, shelter prevents deaths due to

exposure. The policy’s past pitfalls of the 1980s can be avoided by limiting

enforcement to times of sub-freezing temperatures and adhering to statutory

requirements that protect due process rights.

B. Present Application of N.Y. Mental Health Statute as a Result of Order 151

In New York, mental health laws and Order 151 work in tandem to ensure

homeless individuals are not exposed to lethally cold weather. New York

Mental Hygiene Law § 9.41 states in pertinent part that the state may “take

into custody any person who appears to be (1) mentally ill and (2) is

17. Id. at 341-44. 18. Id. 19. The “reasonably foreseeable future” standard was heavily debated and never defined.

“Dangerousness” is the extent to which a person is a threat of physical harm to one’s self or others. The New York Supreme Court distinguished dangerous behavior from eccentric and inappropriate behavior and explicitly excluded the latter from justifying detention. Id. at 341-44.

20. Id. at 342. 21. Erin Durkin, Former NYCLU Head: Gov. Cuomo’s Order Lacks Authority to Force

Homeless Off Streets in Cold Weather, N.Y. DAILY NEWS (Jan. 3, 2016, 11:53 PM), http://ww w.nydailynews.com/new-york/ex-nyclu-head-cuomo-order-homeless-lacks-authority-article-1.2484304.

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conducting himself or herself in a manner which is likely to result in serious

harm.”22 Under the statute, a person is taken into custody for the purpose of

mental health examination or admission for in-patient treatment.23 Order 151

declares exposure to sub-freezing temperatures to be a “threat to life, health,

and safety of the State’s citizens, particularly to persons who are homeless,”

and directs state actors and agents to provide shelter to homeless persons,

including involuntary placement when temperatures fall below freezing.24

Applied together, a person who chooses to remain exposed to sub-freezing

temperatures appears to be mentally ill. This conduct will likely result in

serious harm. Therefore, a person who chooses to remain exposed to sub-

freezing temperatures may be taken into custody to be given a mental health

assessment or mental health treatment. The functional consequence of § 9.41

and Order 151 operating together is at-risk individuals who refuse to

voluntarily accept shelter are placed in shelter until the harm of sub-freezing

temperatures subsides.

The legality of Order 151 turns on its implementation and whether

individuals forced into shelter, at a minimum, undergo a mental health

assessment as required by § 9.41.25 The critical language of § 9.41 upon

which opponents to the policy rely is the “likelihood to result in serious harm

to himself or others.”26 Order 151 codifies a homeless person’s decision to

remain outside during sub-freezing temperatures as conduct likely to result

in serious harm.27 The authority to involuntarily place an individual under §

9.41 is conditioned upon providing the displaced individual with mental

22. N.Y. MENTAL HYG. LAW § 9.41 (West 2016). 23. Id. 24. N.Y. Exec. Order No. 151, supra note 1. 25. See Durkin, supra note 21 (“The legality of Order 151 turns on its implementation and

whether individuals forced into shelter, at a minimum, undergo a mental health assessment as required by § 9.41.”).

26. MENTAL HYG. LAW § 9.41. 27. N.Y. Exec. Order No. 151, supra note 1.

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health care.28

Provided that Order 151’s implementation adheres to all statutory

requirements, opponents of the state’s policy are left challenging the Order’s

presumption that remaining outside in freezing temperatures constitutes

conduct that demonstrates the individual is a danger to him or herself.29

Although Governor Cuomo expects his order to be challenged, he is

confident in the state’s argument and that courts will find in his favor.30

Existing laws provide access to mental health care and empower states to

prevent the loss of homeless lives due to exposure to sub-freezing

temperatures. By recognizing that sub-freezing temperatures are life-

threatening and operating under the authority of enacted laws, states can

identify homeless persons who require mental health care and provide such

care while simultaneously sheltering this at-risk population from the cold.

II. THE MENTAL HEALTH LAW FRAMEWORK AVAILABLE TO OTHER

STATES

A. Application in Other States

Numerous states, if not all, have laws in place for the involuntary

placement of the mentally ill who are generally imminent threats to

themselves or others.31 The required elements common to the various statutes

28. MENTAL HYG. LAW § 9.41. 29. New York believes Order 151 will survive any challenges so long as due process is

maintained during implementation of the Order, and the court finds an individual’s decision to reside outside in sub-freezing temperatures to be physically harmful. Durkin, supra note 21.

30. Rikki Reyna et al., Homeless New Yorkers Reject Cuomo’s Order to Vacate Streets in Freezing Temperatures, N.Y. DAILY NEWS (Jan. 4, 2016, 9:09 AM), http://www.nydailynews. com/new-york/homeless-reject-forced-winter-sheltering-imposed-cuomo-article-1.2484232.

31. This article primarily considers the laws of New York, Illinois, Texas, and California and uses the terms “involuntary placement,” “involuntary detention,” “involuntary commitment,” and “involuntary admission” interchangeably. Compare 405 ILL. COMP. STAT. 5/3-606 (West 2016) (regarding involuntary admission on an inpatient basis), with MENTAL

HYG. LAW § 9.41. (regarding emergency admissions for immediate observation, care, and treatment), and TEX. HEALTH & SAFETY CODE ANN. § 574.034 (West 2015) (regarding orders for temporary mental health services), and CAL. WELF. & INST. CODE § 5346 (West 2016) (regarding statutory procedures for involuntary detention of mentally ill persons).

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are (1) mental illness; and (2) threat of imminent harm to one’s self or

others.32 Generally speaking, the various involuntary placement statutes

operate similarly.33 Upon demonstrating both mental illness and threat of

imminent harm to one’s self or others, the state may involuntarily detain an

individual for the purpose of assessment or treatment.34 In the absence of

either mental illness or threat of harm, many states allow involuntary

placement for the purpose of assessment so a proper determination can be

made regarding the missing element.35 A later finding of mental illness alone,

without more, cannot justify continued detention if the person can live safely

at large.36

B. Case Study: Involuntary Placement Under Montana Mental Health Law

The following illustrates how existing mental health statutes can be crafted

and applied to provide homeless persons with access to mental health care

and shelter. Under Montana law, mental illness is a required element for

involuntary placement.37 However, the Montana statute also provides three

alternatives to the second required element of imminent threat described in

the preceding section.38 Specifically, Montana law requires that, in addition

to being mentally ill, the individual “is substantially unable to provide for

[his or her] own basic needs of food, clothing, shelter, health or safety.”39

32. Compare 405 ILL COMP. STAT. 5/3-606 (regarding the involuntary admission on an inpatient basis), with MENTAL HYG. LAW § 9.41. (regarding emergency admissions for immediate observation, care, and treatment), and TEX. HEALTH & SAFETY CODE ANN. § 574.034 (West 2015) (regarding orders for temporary mental health services), and CAL. WELF. & INST. CODE § 5346 (West 2016) (regarding procedures for involuntary detention of mentally ill persons).

33. Compare People v. Lang, 498 N.E.2d 1105 (Ill. 1986), with In re B.O.T., 342 P.3d 981, 986 (Mont. 2015), and Kendall v. True, 391 F. Supp. 413 (W. D. Ky. 1975), and Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 183 (2d. Cir. 2005).

34. In re B.O.T., 342 P.3d at 985. 35. MENTAL HYG. LAW § 9.41. 36. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975). 37. MONT. CODE ANN. § 53-21-126(1)(a) (West 2015). 38. Id. 39. Id.

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In the case of In re B.O.T., the Supreme Court of Montana held that

involuntary placement is authorized when the required statutory elements are

satisfied.40 There, the relevant statutory requirements for involuntary

placement were mental illness and a substantial inability to provide for one’s

own basic needs of food, clothing, shelter, health or safety.41 The record

demonstrated that there was sufficient evidence to support a finding that the

respondent was unable to provide for his own health or safety.42 The court

found that a mental disorder resulting in a person being homeless or hungry

is sufficient to satisfy the statutory criteria of self-inflicted harm, invoking

the statutory provision authorizing involuntary placement.43

By providing alternative requirements for involuntary placement, the

Montana law allows for broader application. When analyzed under the

framework discussed in the preceding, Montana has declared a person’s

substantial inability to provide for their own basic needs as threatening

conduct. Similarly, Order 151 defines a homeless person’s decision to remain

outside when temperatures are below freezing as threatening conduct.44

When an individual appears to be mentally ill and is conducting him or

herself in a threatening manner, involuntary placement is appropriate to

assess the person’s mental health and protect him or her from the threat.

III. BALANCING INDIVIDUAL LIBERTIES WITH STATE INTERESTS

With the state’s duty to protect its citizens on one hand and an individual’s

liberty and autonomy on the other, the balance tips in favor of involuntary

placement given the limited circumstances under which involuntary

placement will be authorized. In times of inclement weather, an individual’s

40. In re B.O.T., 342 P.3d at 986. 41. Id. 42. Id. 43. Id. 44. N.Y. Exec. Order No. 151, supra note 1.

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right to liberty is not liberty at all; rather it is potentially lethal exposure.45

By using existing mental health laws as authority for involuntary placement,

state governments effectively proclaim that the potential of dealing with

corpses is outweighed by the risk of having to defend their actions against

aggrieved homeless persons.46 Notably, it was civil rights attorneys—not

mental health professionals—that started the movement of preferring liberty

to in-patient treatment.47 Mental health professionals argue that a preference

for liberty at the expense of treatment does not result in the mentally ill

enjoying their liberty; rather, they are left afraid and alone.48 The resulting

effect of the involvement of civil rights attorneys in the field of mental health

is that the mentally ill are “dying with their rights on.”49

Mental illness is one of the top four causes of homelessness among

unaccompanied individuals.50 In a survey of twenty-five U.S. cities, twenty-

eight percent of homeless adults were afflicted by severe mental illness.51

Nationwide enforcement of involuntary placement laws falls short of directly

addressing mental illness specifically as a cause of homelessness.52

Nevertheless, it prompts engagement and provides access to mental health

care to those who might otherwise go untreated. Concurrently, enforcement

immediately removes individuals from the threat of exposure. Enforcement

of involuntary placement laws would positively impact more than one in four

45. Meredith Karasch, Where Involuntary Commitment, Civil Liberties, and the Right to Mental Health Care Collide, 54 HASTINGS L. J. 493, 497 (2003).

46. Reyna et al., supra note 30. 47. Karasch, supra note 45, at 497. 48. Id. 49. Id. 50. NAT’L L. CTR. ON HOMELESSNESS & POVERTY, HOMELESSNESS IN AMERICA:

OVERVIEW OF DATA AND CAUSES (2015), http://www.nlchp.org/documents/Homeless_Stats_ Fact_Sheet (listing the top causes of homelessness among unaccompanied individuals: housing, unemployment, poverty, mental illness and the lack of needed services, and substance abuse and the lack of needed services).

51. See U.S. STATES CONF. OF MAYORS, supra note 5 (reporting that of surveyed cities, 28 percent of homeless adults were severely mentally ill, 22 percent were physically disabled, 15 percent were victims of domestic violence, and 3 percent were HIV positive).

52. Sossin, supra note 5, at 700.

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homeless persons engaged during implementation by providing them access

to mental health care.53

A. The State’s Duty to Protect Vulnerable Citizens

The state’s authority to detain mentally ill individuals is rooted in its police

and parens patriae powers.54 A non-dangerous mentally ill person could not

be forced into treatment by the state without violating that person’s right to

due process.55 However, the doctrine of parens patriae empowers it to

provide protection for those who would be harmed if left at large.56

Involuntary detention implicates critical liberty interests, and thus the state

must strictly adhere to procedural safeguards included within its statutes.57

The included safeguards prevent the mental health system from becoming a

tool for oppression instead of a benefit to society.58 In involuntary detention

proceedings, due process is satisfied if the state shows that an individual is

mentally ill and that they require treatment for their own welfare and the

safety of others.59 Due process precludes the involuntary hospitalization of

non-dangerous persons.60 Accordingly, the duration of involuntary

placement under Order 151 is limited to the completion of a mental health

assessment, mental health treatment, or the duration of sub-freezing

temperatures.61

53. Id. 54. Police power is the plenary power to make laws to protect the public welfare.

Kaufman, supra note 3, at 336. The parens patriae doctrine stands for the state’s responsibility to protect those that cannot care for themselves. Id.; see also Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600 (1982) (referring to parens patriae as the government’s role as guardian for persons legally unable to act for themselves).

55. Coll v. Hyland, 411 F. Supp. 905, 912 (D.C.N.J. 1976). 56. Id. 57. In re Lance H., 931 N.E.2d at 739. 58. Id. 59. In re Torski C., 918 N.E.2d 1218, 1228 (Ill. App. Ct. 2009). 60. Olivier, 398 F.3d at 188. 61. N.Y. Exec. Order No. 151, supra note 1.

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B. Safeguarding Constitutional Rights

Statutes providing for involuntary placement contain safeguards to protect

due process rights and prevent unnecessarily prolonged detention.62

Procedural safeguards such as statutory limitations to duration, rights to

counsel, mandatory examination by a mental health professional, and the

provision of a judicial hearing within a minimum number of days are

essential to safeguarding an individual’s liberty interests in mental health

cases.63

In Fisk v. Letterman, the U.S. District Court, Southern District of New

York held that a non-dangerous individual’s due process rights are violated

by the state when the individual is capable of living safely “by himself or

with the help of willing and responsible family members or friends.”64 In

contrast, the proposed enforcement of enacted laws specifically addresses

persons who are, at least temporarily, incapable of living safely due to

inclement weather.65

C. Measured “Off-Label” Use of Existing Mental Health Laws Provides Access to Mental Health Care

Opponents to involuntary placement statutes may argue that detaining

homeless individuals against their will through the enforcement of mental

health laws is another form of criminalizing indigents.66 However, equating

involuntary detention allowed under existing mental health statutes with

criminal confinement ignores the purpose of the engagement and involuntary

detention: to treat mental illness while preventing death or severe harm due

to exposure to freezing temperatures.67

62. Id. 63. In re Lance H., 931 N.E.2d at 739. 64. Fisk v. Letterman, 501 F. Supp. 2d 505, 522 (S.D.N.Y. 2007) (citing O’Connor v.

Donaldson, 422 U.S. 563, 575 (1975)). 65. N.Y. Exec. Order No. 151, supra note 1. 66. Sossin, supra note 5, at 642-46. 67. Karasch, supra note 45, at 500.

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The use of established involuntary placement laws to provide shelter to the

homeless population during times of sub-freezing temperatures is in accord

with due process requirements and substantially promotes the state’s interest

of preventing deaths due to exposure, while minimizing the individual’s

period of deprived liberty and autonomy: “Due process requires that the

nature and duration of commitment must bear some reasonable relation to the

purpose for which the individual is committed.”68 In balancing the interests

of individual rights of liberty and autonomy with the state’s interest in

protecting the well-being of its citizens that cannot protect themselves, the

weight of civil rights attorneys and disgruntled citizens alleging due process

violations or wrongful detention is far exceeded by the weight of potential

deaths due to exposure.69

IV. RECOMMENDATIONS

Even though current mental health laws provide a means by which states

can forcibly place homeless persons in shelters during times of inclement

weather, the statutes can be tailored further to incorporate triggering events.

Statutes should provide more resources, streamlined mechanisms, and

increased due process safeguards. States with winter climates should emulate

New York’s policy to expressly broaden the purpose of their involuntary

placement statutes to include times of inclement weather.70 Successful state

intervention requires clear goals, adequate resources, and empowered

personnel.71

From an implementation standpoint, pragmatic considerations should

supplant aimless administrative practices when engaging the homeless

population.72 For instance, information about a homeless person’s rights

68. Jackson v. Indiana, 406 U.S. 715, 737-38 (1972). 69. Reyna et al., supra note 30. 70. N.Y. Exec. Order No. 151, supra note 1. 71. Sossin, supra note 5, at 627. 72. Id. at 697.

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coupled with notification of the public policy that no one should sleep in sub-

freezing temperatures can be disseminated to the homeless population on a

continuous basis to mitigate the perception of improprieties during the time

of crisis. Perhaps if homeless individuals know in advance that the state has

the right to involuntarily place them in shelters during inclement weather,

fewer individuals will remain outdoors or refuse assistance.

Engagement of the homeless population, under Order 151 or otherwise,

promotes public health through surveillance, which is vital to achieving

public health goals.73 Additionally, timesaving measures in emergency

situations, such as deploying mental health professionals or empowering

administrative law judges to order involuntary placement will rapidly remove

homeless individuals from harm while initiating procedures that ensure due

process. Where administrative practices are rule-driven, engagement of the

homeless population values pragmatic solutions above programmatic ones.74

V. CONCLUSION

Mental health statutes authorizing the involuntary placement of mentally

ill persons that are a threat to themselves or others can save homeless lives

by giving them access to mental health care and providing shelter in times of

sub-freezing temperatures. Under a state’s police and parens patriae powers,

it has the authority to detain mentally ill individuals who are at risk for

imminent physical threat to themselves or others. Due process rights are

safeguarded by substantive requirements (i.e. mental illness and threat of

imminent harm) and procedural requirements (i.e. assessment or treatment

upon placement; mandatory hearing; right to counsel; maximum placement

periods, etc.). Additionally, due process is satisfied because the balance

73. David B. Rein, Economic and Policy Justification for Public Health Surveillance, PRINCIPLES & PRACTICE OF PUBLIC HEALTH SURVEILLANCE 32 (Lisa M. Lee et al. eds., 3d ed. 2010).

74. Sossin, supra note 5, at 697.

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between states interests in preventing deaths due to exposure and an

individual’s right to due process weighs in favor of the state’s use of

involuntary placement so long as the duration of detention does not exceed

the duration of the harmful, sub-freezing temperatures. States should avail

the use of existing mental health statutes that provide for involuntary

placement of homeless persons to prevent deaths due to sub-freezing

temperatures.