Involuntary_Commitment

Fatou Bamba The issue of involuntary commitment and its place in the mental health community has become increasingly controversial. Interestingly, both sides of the debate use an argument based on the violation of rights and the protection of rights in an attempt to prove a point. This is a complex issue that involves the question of individual civil liberties versus the question of safety of the individual and of the society. There are many legal cases that have been brought before the court system both at the state and federal levels on this topic, ranging back a number of decades. State laws regarding whether a patient can be involuntarily committed are generally where law enforcement and mental health professionals must seek their legal guidance. There are also federal laws pertaining to rights and civil liberties that come into the picture when there is a question of how to balance the freedom of the individual in a democratic society, versus whether that individual should be protected from inflicting self-harm, and of course, if there is the potential for harm to others, then the question of involuntary commitment takes on different angles and perspectives legally if there is a danger to the public. The issue of what involuntary commitment means, how it is defined, what it describes, and whether there is a parallel between incarceration (as in jail confinement) vs. involuntary commitment; these are legal and social issues that have shifting definitions according to time, place, and the legal case at hand. Historically involuntary commitment has been asking to incarceration in earlier decades, and therefore a certain ‘bad social reputation’ from a humanistic point of view accompanies social opinion about involuntary commitment. State mental hospitals in the early part of the 20th century, even until the 1970s and 1980s, were known to be ‘backwater’ holding grounds for individuals who received little or no help during their involuntary commitment and in certain circumstances lived in squalid conditions that would be considered inhumane. So, the historical backdrop to today’s questions about whether involuntary commitment is ‘legal’ also have a social side that has to do with the quality of care given to the individual who is involuntarily committed. That quality of care has risen dramatically in recent decades of the late 20th century and to our own time, with greater legal and institutional oversight and care given to those individuals who are involuntarily committed. Let’s look more closely at the preliminary legal issues regarding involuntary commitment, to understand the status of the law today, and the historical background that leads to the current status for those individuals who are mentally ill and institutionalized, as the phrase goes, ‘ against their will.’ For, questions of definition of ‘voluntary’ and ‘involuntary’ and the range of possibilities in between regarding the individual’s free will, stand paramount in how the laws address involuntary commitment. How is involuntary commitment or institutionalizaiton defined' What about the individual who is unable to understand a question posed about whether or not he or she wishes to be instituitonalized, due perhaps to psychosis or other psychological problems' This individual may indeed perhaps wish to receive care and attention in an institution, but may be psychologically unable to give what is known as ‘informed consent.’ We tend to have the ‘lay person’s picture in our mind of someone who is screaming ‘ Don’t take me away!’ while being carried out on a stretcher in a straightjacket, with a nurse looming and a large hypodermic needle filled with a sedative somewhere in the shadows. This macabre scene has been impressed upon the public’s mind from earlier history of mental institutions, and from the popular media. However there is a large and complex continuum between ‘active resistance’ of the informed and aware individual who understands the situation and still wishes to not be institutionalized, as compared to the individual who does not understand the circumstance, and therefore cannot give informed consent, and so may be seen as not resisting institutionalization and care but also, by the same token, as unable to actually provide informed consent. In these complex cases, how do the courts interpret the situation and what guidance do the courts give to psychologists, psychiatrists, other mental health personnel, law enforcement, and families' The issues are not readily resolved at an ethical level, because there are moral arguments that are quite strong both in favor of involuntary institutionalization and against it. The law does not necessarily provide moral direction, but rather reflects what we might consdier, depending upon one’s point of view, to be either the ‘highest standard’ or the ‘lowest common denominator’ of social consensus on what should happen when a person is in need of psychiatric help and institutionalization is an option. I will look at these issues below. In general, if we were to look up the statutes and laws in every State in the Union, we will find that individuals who are mentally ill and considered dangerous to themselves or to others, are subject to potential involuntary commitment to a mental institution. The question of what ‘dangerous’ means is at issue and is defined usually with a fair degree of ambiguity in the law. According to James Gottstein, Esq., who has written extensively on the issue, “ In many states, the dangerousness is supposed to be fairly immediate or "imminent." Also, many states provide that even if the person is not dangerous, he/she can be committed if he/she is unable to take care of him/herself. In many states this is called being ‘gravely disabled.’(Gottstein, 2002) Looking at the court cases that were instrumental in establishing the ‘imminent danger’ concept, we can see that the United States Supreme Court Foucha v. Louisiana, 504 U.S. 71 (1992) established that "The State may [in addition to punishment for a crime] also confine a mentally ill person if it shows 'by clear and convincing evidence that the individual is mentally ill and dangerous.’ (emphasis added).” (Gottstein, 2002) As recently as 2002, there was a case brought to the US Supreme Court, in which the general idea of an imminent danger was reconfirmed in law, through Kansas v. Crane, 122 S.Ct. 867 (2002). In this case, the US Supreme Court again indicated that the idea of ‘dangerousness’ was of significant value in a determination of involuntary commitment. As quoted by Gottstein: "[w]e have consistently upheld such involuntary commitment statutes" when (1) "the confinement takes place pursuant to proper procedures and evidentiary standards," (2) there is a finding of "dangerousness either to one's self or to others," and (3) proof of dangerousness is "coupled ... with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality.' “(Gottstein, 2002) Earlier cases had established the ‘gravely disabled’ idea, including O'Connor v. Donaldson, 422 U.S. 563, 575–76 in 1975, in which the United States Supreme Court established a parameter around ‘dangerousness’ limiting this definition, and excluding simple definition of the inability to take care of oneself, as not a sufficient cause for institutionalization. If inability to take care of oneself were to reasonably lead to the person’s demise, then self-inflicted harm would come into the picture and involuntary commitment could be considered. More recently, as of 2007, a case was brought before the Alaska Supreme Court, known as Wetherhorn v. Alaska Psychiatric Institute, 156 P.3d 371 (Alaska), in which the other side of the coin was brought into the legal picture, that idea that avoiding institutionalization would allow the individual to maintain a heightened ability to care for oneself. The law in this case acted as a deterrent to institutionalization, by saying that an individual who was ‘gravely disabled’ could not simply be institutionalized. This idea was invalidated so that there would not arise a "substantial deterioration of the person's previous ability to function independently." (Gottlieb, 2002). The issue of ‘preventive detention’ has been on the horizon in the court system for at least 3 decades, and continues to be unresolved morally within the society and in the courts. As Richard Lippke notes, this represents a question of the social and legal balance between what is perceived as the potentially dangerous offender or even criminal, versus the individual who requires help. (Lippke, 2008). Who is responsible for the individual who is mentally ill and potentially a threat to the society' This issue took on particularly heated debate after a law was passed in the State of Ohio in the late 1990s, in which the Supreme Court of Ohio created a new level of responsibility legally for mental health professionals for the violent acts perpetrated by their patients. This caused an uproar in the medical and mental health professions, while taking some of the ‘heat’ off of law enforcement. In placing legal liability on a psychiatrist, as well as an outpatient service program and its mental health professionals for a violent crime of a psychiatric patient, the Ohio law brought the question of whether to involuntary commitment into the foreground as a key strategy for legal protection against liability of mental health professionals. The specific case involved a psychiatric patient murdering his own parents with a handgun, as well as wounding his sister. (Stavis, 1997) The question, therefore, of what to do with a psychiatric patient who reveals the potential for violence is one that is extremely fraught with sensitive and legal implications for psychiatrists and all mental health workers in terms of Ohio’s precedent-setting law. The determination with diagnostic preciseness whether or not a mental ill individual will become violent to himself / herself or to others is one that is not within the realm of an exact science. So, ‘prevention,’ while not entirely possible, is a focus of the law in placing the burden of responsibility upon mental health professionals in the Ohio case. What this means, in practice, is that there is a greater tendency for mental health professionals to both warn family members or those in the immediate environment of a potentially violent person with mental illness, and also potentially utilize both involuntary commitment and drug treatment with a higher percentage of application in order to avoid legal liability and lawsuits in the even that there is an error in diagnosis. The law intends to encourage mental health professionals to err on the ‘safe side’ rather than to err in the direction of placing society at greater risk. The foundation for this type of responsibility placed upon the practitioner to make sure the potentially violent patient is cared for appropriately, is well-known in the language of law and the mental health system today. It is called the ‘law of torts,’ and covers a variety of issues other than mental health – for example, defective consumer products, medical malpractice, and even slipping on an uncared-for sidewalk in front of a place of business that has responsibility to keep the sidewalk in passable condition. Overall, the ‘law of torts, ‘ functions to assign “private legal liability to a person who causes injuries to another intentionally or through careless violation of a reasonable standard of conduct. “ (Stavis, 1997) A strong and cohesive continuum of care is desirable for the individual who is mentally ill. One hopes that in ethical terms, there would be a match between legal interests, the public interests, and the interests of the individual who is mentally ill. However, often instead there is an imbalance between the interests and rights of the individual who is mentally ill, and the interests of the society in protecting itself from potential harm. Since these are not ‘separate parties’ but indeed, there is influence between the individual who is mentally ill, the health practitioner, and the society, the question of what gets communicated, when, how, and by whom, is further defined by law, in order to make it clear that information must be shared according to who is most responsible for the outcome at a legal level. So, in the Ohio case, again as an example, there was a legal definition created for “special relationship” and assigned to the treating psychiatrist and program staff of an outpatient clinic. The “special relationship” defines that there are more duties than with the average citizen, for a person who is taking it upon himself or herself to have the professionalism to treat a mentally ill individual. That person has a social duty, in the “special relationship,” to warn others and to protect the society against a patient if, in the professional’s opinion, there is possible concern over violence. A failure to warn others is considered a breach of the professional codes of conduct and a breach of the “special relationship” that describes a mental health professional working with a mentally ill patient. This creates liability and legal responsibility if there is harm to people who should have been warned of the perpetrator’s (mentally ill individual’s) potential for violence. Thus, involuntary commitment becomes an even more viable “treatment alternative” for the mentally ill individual given the “special relationship” responsibilities and obligations of the mental health professional. (Stavris, 1997; Lippke, 2008) While the mental health professional may be required to make difficult decisions about whether a person who is mentally ill should be involuntarily committed, there is flexibility within the law for acknowledging that the professional’s evaluation may, at times, not be correct. In that case, as long as proper procedure was followed with correct modes of evaluation and documentation, then even if the judgment proves to have been wrong, it is still not seen as ‘negligent’ and thus, allows the mental health professional some room to make judgments without feeling that every incorrect judgment is going to be a legal liability. (Stavris, 1995) The next step that is taken in the courts that provides for the possibility of a mental health professional involuntarily committing an individual who is mentally ill, is the step of deciding whether it is legally required for the professional to try to treat the patient’s issues and problems, beyond alerting others that there may be potential for harm to self or society. The question is: does the mental health professional have a legal obligation to treat the individual who may cause harm to self or others, and in that case, what are the routes available for treatment' California and other states have established that it is the mental health professional’s obligation to treat the mentally ill patient in these situations, and not to refuse treatment or refuse to make a decision regarding treatment. The person who is already deemed a potential threat to self or society must be treated. This sets up a legal obligation to make decisions about drugs, other forms of therapy, even including possible restraint or sedation, etc., and the potential of involuntary institutionalization, as well. The question may arise, why not simply give drug treatments to an individual who is potentially violent, and in that fashion, if the treatment works, the individual would not require institutionalized care against his or her will. Why not give the person what he or she needs, and as long as the medication works, then the person should be free to go where he or she pleases and be out in the society' The problem with this, as is well known to both the lay person by logic, and to the medical professionals by experience, is that the person who is mentally ill and for whom it is only drug treatments that are preventing episodes of violence, cannot be relied upon to take his or her medications and supervision 24 hours a day in an ‘at large’ situation would be impossible. Therefore, the question of involuntary institutionalization places itself before the courts time and time again, from the 1970s to today. The U.S. Supreme Court gave a definition and set of parameters for involuntary commitment when it said, in 1983, that mentally ill individuals must be treated as a “special class” of people with regard to institutionalized care that is not incarceration but is provided whether or not the person wants the care. The Supreme Court ruled that “ “’when a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.’” (Stavris and Petragnani, 1996) What may be clear regarding institutionalization of individuals who have already committed a crime and are deemed mentally ill, is less clear if the person has not committed a crime and yet shows potential for being a danger to self or others. What a licensed psychiatrist can do, for example, is to require that there be a 72-hour detention of the individual without his or her consent if the physician decides that the patient is in ‘imminent danger’ of either harming himself / herself or harming others. This detention, with no further court order, can include drug treatment, putting a person in a locked room, restraining the individual, and other modes of prevention of the person from leaving. After the 72-hour period of time, there must be a hearing and a court order to allow any further involuntary commitment at a longer term level. This 72-hour restraint is common in various states, and was created in California where it was called the “5150 hold,” based upon the number of the Statute. What balances out the rights of the mentally ill person, in the law, as compared to the laws the require a mental health practitioner to take active steps to protect the individual and the society' What if the mentally ill person feels differently' The Bill of Rights and the Civil Rights Act provide for protections of individual liberty through the US Constitution. However, these must be specifically defined in greater detail to be of use ot the individual who is mentally ill, as ‘life, liberty and pursuit of happiness,’ do not fully give the scope of the individual’s freedoms in terms of legal protection. The Civil Rights Act does provide further protections, and there have been precedent-setting cases since the 1960s that provide further protections of the freedom of the mentally ill individual, including freedom from involuntary commitment. Thus, there is a balance of the laws with regard to the mentally ill person’s rights vs. the medical profession’s obligation to protect the individual and the society. New York laws are a good case in point to look at the ways that the law can protect the mentally ill individual against involuntary commitment to create a balance of powers between the individual, the law, and the medical profession. There must be, according to law in New York, a reasonably speedy access to the courts as well as availability of what is called a “Mental Health Information Service” to advise and represent the individual’s legal interests and therefore protect against any injustices that the individual might not be cognizant to be able to resist or fight. If an individual is involuntarily committed, there is a legal requirement of a frequent periodic review and for release of the individual of there is a change in his or her status. The courts make the final determination in the case of a disagreement, not the medical professionals, in order to protect the patient’s civil rights and right of representation, as well. In the states of Texas, Washington, Pennsylvania, and other states, there have been challenges to the constitutionality of involuntary commitment because these safeguards were not in place. So, the courts take the checks and balances seriously and make sure that States can’t simply have a process for involuntary commitment without a review and protection process for the mentally ill individual. (Elbogen, 2007) Thus, we see that there are many complex decisions that must be made when a mentally ill individual is being considered for involuntary institutionalization. It is not a simple matter of an individual mental health professional making his or her decision and going forward. There are court regulations that prevent this from taking place so suddenly, and without ‘peer review, ‘to make sure the decision appears to be a sound one. Further, the mentally ill individual is provided with the opportunity for court representation with his or her best interests at heart, and for periodic review if there is involuntary commitment. These issues are still evolving today in the courts, and due to the highly complex moral, ethical, and medical as well as social issues involved, in all likelihood the issue of involuntary commitment will remain a court-mediated question that will transform over the upcoming years, through changes in case law at both state and federal court levels. APA Citations: California Welfare and Institutions Code Section 5150-5157 (2010). U.S. Law. Retrieved from: http://www.uslaw.com/us_law_article.php'a=324 Elbogen, Eric B. et. al. (2007) Competence to Complete Psychiatric Advance Directives: Effects of Facilitated Decision Making.Law and Human Behavior, Vol. 31, No. 3 (June), pp. 275-289 Gottstein, James. (2002) Involuntary Force of Law. Retrieved from: http://psychrights.org/force_of_law.htm Lippke, Richard L. (2008). No Easy Way Out: Dangerous Offenders and Preventive Detention Law and Philosophy, Vol. 27, No. 4 (July), pp. 383-414 Medland, Mary. (2010) Commitment to mental health facilities explained. Exhibit A: The Law in Plain English. Retrieved from: http://exhibitanewsbaltimore.com/blog/2009/12/30/commitment-to-mental-health-facilities-explained/ Rights and Legal Issues, Involuntary Commitment. (2008) Adult Mental Health Services. Office of the Maine Department of Health and Human Services. Retrieved from: http://www.maine.gov/dhhs/mh/rights-legal/involuntary/home.html Stavis, Paul.F. (1997) Outpatient Violence: Ohio Supreme Court Holds Psychiatrists and Others Responsible. Quality of Care Newsletter, Issue 69, May-June. Stavis, Paul. F. and Amy Petragnani. (1996) Violent Acts by Persons with Mental Illness: What Are Society's Options under the Current Law' Quality of Care Newsletter, Issue 66, April-May. Thompson, Maxine Seaborn (2007). Violence and the Costs of Caring for a Family Member with Severe Mental Illness Journal of Health and Social Behavior, Vol. 48, No. 3 (Sept), pp. 318-333.