Fatal Subway Shove Renews Debate on Forced Treatment for the Mentally Ill

A second fatal subway pushing in less than a month has renewed focus on a New York law that requires some mentally ill people to get psychiatric treatment.

Police have charged Erika Menendez, 31, with shoving Sunando Sen in front of an oncoming subway car last Thursday in Queens. Menendez is being held without bail and a judge has requested a psychiatric evaluation.

Police said Menendez's family members called authorities several times in the past five years because she had not been properly taking prescribed medications and they were having difficulty dealing with her. Police did not say what the medication was.

Menendez had been arrested several times. She pleaded guilty to assaulting a man in 2003, and drug possession.

Menendez was in custody and unavailable for comment.

It was unclear what lawyer was representing her, and whether she had ever been subjected to “Kendra’s Law.”

Under the 1999 law, named after a young woman who was fatally pushed onto the subway tracks by a mentally ill man, judges can force patients to receive "assisted outpatient treatment," a form of involuntary commitment to care and monitoring by mental health professionals. (Judges, however, cannot order patients to take specific medications). Patients who fail to follow treatment orders can be committed to a psychiatric institution — initially up to three days for evaluation, and potentially longer.

"New York State is the best state on paper and the worst state in practice," said DJ Jaffee, executive director of the Mental Illness Policy Organization. "Basically what the law does now is requires someone to become dangerous to themselves or others [before being forced into treatment]. We believe it should prevent someone from becoming a danger to themselves or others."

Quoting unnamed sources, The New York Times reported Menendez had been to Bellevue and Elmhurst hospitals for psychiatric treatment. The city's Health and Hospitals Corporation, which administers the hospitals, declined to comment, citing privacy concerns.

The Times also reported a case worker had repeatedly attempted to visit Menendez at home but found her missing and left medication and instructions to call.

Critics of Kendra's Law said the mental health system needs more outreach workers and mental health clinics, not more involuntary treatment.

"Kendra’s Law is a step deeper in the wrong direction for a lot more money for a lot fewer people," said Harvey Rosenthal, executive director of the New York Association of Psychiatric Rehabilitation Services.

Rosenthal said New York is currently developing a system that integrates mental healthcare with other medical treatment and that makes service providers more accountable.

Under Governor Andrew Cuomo, Cuomo’s Medicaid overhaul, the managed care organizations that provide most of the treatment for the mentally ill get paid partly on how well they do keeping patients out of hospitals.

"They're setting the bar higher and creating a system that's more proactive and relies more on people who are out helping people on the streets, not just in offices or hospitals," Rosenthal said. 

Dr. Bruce Link, a professor of epidemiology at Columbia University’s Mailman School of Public Health, said Kendra’s Law has been effective at reducing violence among the mentally ill – and strikes a balance between individual rights and public safety.

But he also was cautious about extending involuntary treatment to a broader swathe of the mentally ill.

"Predicting dangerousness is just a difficult thing that psychiatry really can’t do perfectly," Link said. The current system, he said, provides "a pretty good idea of who’s at risk."

Link has compared patients who were monitored by the mental health system under Kendra’s Law with similar patients who were not. He found that those who received assisted outpatient treatment became more functional and less violent over time than those who did not.

"There are a lot of success stories under Kendra’s Law," he said. "Unfortunately, you don't hear about those. You hear about the dramatic incidents, which are newsworthy" but very rare.

Kendra's Law was renewed in 2010 and is up for renewal again in 2015. In the meantime, Jaffe and others are pressing Albany to pass the Kendra's Law Improvement Act, which they say will make it easier for families to use the court system to force relatives to get treatment.

Correction: In an earlier version of this article, WNYC incorrectly identified professor Bruce Link as Bruce Felt. WNYC regrets the error.