Civil Commitment Essay

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Historically, one of the most conflicted—indeed, contentious—issues facing criminal justice and mental health professionals is that of reducing ambiguity in civil commitment proceedings that restrict the freedom of individuals viewed as potentially violent, such as those with mental disorders, violent sex offenders, and juvenile delinquents. Center stage in this ever-changing dilemma is the debate surrounding the right of society to be safe from danger versus the potential loss of freedom faced by persons perceived, but not proved, to present an imminent threat of danger.

Though the exact wording differs depending on jurisdiction, all states have statutes defining requirements for civil commitment, which generally is the process by which an individual perceived as being a grave threat to self or others may be involuntarily admitted to a psychiatric hospital for treatment. Laws governing cases such as juvenile delinquents or sexually violent predators may also allow involuntary hospitalization for treatment purposes.

When justified, confinement without adjudication for a crime may not appear to be an especially perplexing dilemma, yet it persists as one of the most bewildering ethical problems mental health and legal professionals routinely face. Moreover, even though persons with mental illness generally are no more dangerous than persons without mental disorders, sensationalized media accounts of violent crimes committed by these individuals unnecessarily increase public anxiety. Heinous acts by mentally ill persons make news because they are rare. Yet, public fear has been heightened by media coverage of a possible mental or developmental disorder influencing incidents of mass killings, such as those involving Columbine High School, Virginia Tech, the Century movie theater in Aurora, Colorado, and an elementary school in Newtown, Connecticut.

There is vigorous debate as to whether mental health professionals are adequately trained to predict dangerousness, thereby jeopardizing an individual’s right to be free from external restraint. More pointedly, the fundamental right to be left alone and not held captive without justification contains risk in instances in which the expertise of clinicians, lawyers, and judges rendering life changing decisions in commitment hearings is not fully established.

The sweeping civil rights-driven legal change in the 1960s impacted civil commitment to the extent that thousands of persons with mental disorders previously admitted to psychiatric hospitals were abruptly freed, and treatment, when it occurred, often was provided in local jails or prisons that were poorly equipped to take on such a complex and demanding burden. Minimally, this suggests a couple of questions bearing close scrutiny:

  • How is behavior which may lead to civil commitment determined, and by whom?
  • Are ethical strategies available that allow for intelligent, coherent articulations for achieving an equitable balance between the concerns of society to be protected from mentally unstable persons and those of benign individuals with mental disorders who conceivably could face involuntary hospitalization without just cause?

Standards for Commitment: Beneficence Versus Danger

Indisputably, deinstitutionalization—the release of hundreds of thousands of persons from psychiatric hospitals in the 1960s—serves as the watershed moment in the evolution of civil commitment procedures in the United States.

Ample literature on psychiatric hospitals from their earliest beginnings provide bleak, somber portraits of persons warehoused in unsanitary facilities; foul-smelling, unheated buildings in which basic necessities for survival often were lacking and treatment for mental illness poor or nonexistent. By the mid-1800s, Dorothy Dix became an advocate and strong voice for reform, citing examples of unclothed patients, unable to care for themselves, sleeping on cold damp floors, sometimes in their own urine and feces. And when openly agitated, some were lashed into obedience with whips or rods by hospital staff.

Decades later, in the mid-1950s, the increase in the number of persons civilly committed to psychiatric hospitals had grown to over a half million. Arguably, while the quality of care provided by these institutions had improved in some instances, the ethical basis for depriving individual liberty remained in dispute. In the years that immediately followed, a number of compelling social, legal, and medical issues coalesced to bring into question the morality of forced hospitalization.

Further driving demands to free persons from state hospitals was the growth in class-action lawsuits filed by patients alleging they were being held against their will without due process of law. As a consequence, concerned civil rights attorneys and mental health reform advocates argued that discovery of antipsychotic medications coupled with the development of community mental health centers (authorized by President John F. Kennedy in 1963), ostensibly to provide a promising alternative to commitment, would allow most former patients to live somewhat unfettered lives. At issue in this threshold moment, it seems, were pointed questions concerning why so many persons were being committed and detained apparently for their own welfare through informal and sometimes haphazard queries by ill-qualified court magistrates and lower court judges, many with scant or no training in mental illness. As a result, the subsequent shift away from the need-for-treatment model to that of dangerousness became the hallmark of the deinstitutionalization movement, and by the 1990s the number of patients in psychiatric hospitals had dropped to 30,000.

Improving Contemporary Commitment Policies

Despite the well-meaning intentions of lawyers, advocates, and government officials that led to the mass exodus of patients from psychiatric hospitals, a number of unintended yet serious outcomes quickly became apparent. Having nowhere to turn upon release, many former patients, now homeless, without food or shelter and with little insight into their illness, were left to fend for themselves on the streets. Equally important, most were not taking their newly discovered antipsychotic medicines, distributed primarily at community mental health centers, because few of the centers actually existed or were slated for construction. As suggested above, “transinstitutionalization” largely replaced deinstitutionalization as police officers became the gatekeepers to mental health services for individuals with severe mental disorders, arresting nonviolent offenders at risk of freezing and starvation, with correctional personnel assuming greater responsibilities as surrogate care providers.

Ethical debates began to increase during this period concerning applicable standards for commitment. Whereas judges in appellate courts found the “beyond a reasonable doubt” standard applied in criminal courts much too rigid in assessing risk of future danger in these cases, they correlatively rejected the “preponderance of the evidence” standards used in civil trials as insufficient. An acceptable and seemingly more balanced “clear and convincing” standard later emerged. This standard served to facilitate discussions regarding options possibly less restrictive than involuntary commitment. This would allow governmental action in instances involving persons with mental disorders who were construed not to be potentially dangerous to others but unable to care for themselves. It is here the courts anchored their decision not on the police powers of the state, but instead on provisions of parens patriae, requiring states to protect those unable to care for themselves, especially those in grave danger of personal harm.

This was not a renunciation of laws and policies instigated by deinstitutionalization to prevent unnecessary commitments, but instead a reconsideration of special needs for treatment that may constitute adequate cause to temporarily place individuals incapable of caring for themselves in the least restrictive settings when available. Tangentially, from a moral perspective, the concept of outpatient civil commitment appeared to have merit, was rapidly implemented in most states, and came to be viewed as a more sensitive, kinder alternative, inasmuch as it permitted persons with mental illnesses at risk of being a danger to themselves to remain in their communities while undergoing treatment. In addition, as the pendulum continued to swing back, emulating in part the period predating deinstitutionalization, renewed concerns about imminent danger to others and need for treatment emerged. Rather quickly then, related studies began to show that when patients’ views were solicited without pressure and they had a voice in the decision making process, a mutually helpful social contract could be formed.

Hence, by showing sincere interest in and support for patient’s own judgment in whether to accept or deny the advice of medical and legal professionals in the future, positive outcomes in terms of effective, therapeutic, and lasting healing becomes more salient and probable.

Bibliography:

  1. Arrigo, Bruce A., Heather Y. Bersot, and Brian G. Sellers. The Ethics of Total Confinement: A Crtique of Madness, Citizenship and Social Justice. New York: Oxford University Press, 2011.
  2. Lareau, Craig R. “Civil Commitment and Involuntary Hospitalization of the Mentally Ill. Hospitalization of the Mentally Ill.” In Handbook of Psychology. Vol. 11, Forensic Psychology. 2nd ed., R. Otto, ed. Hoboken, NJ: John Wiley and Sons. 2013.
  3. Pinals, Deborah and Douglas Mossman. Evaluation for Civil Commitment. New York: Oxford University Press, 2012.
  4. Scurich, Nicholas and Richard John. “The Normative Threshold for Psychiatric Commitment.” Jurimetrics: The Journal of Law, Science, and Technology, v.40/4 (2010).
  5. Testa, Megan and Sara G. West. “Civil Commitment in the United States.” Psychiatry, v.7/10 (2010).
  6. Torrey, E. Fuller. The Insanity Offense: How America’s Failure to Treat the Seriously Mentally Ill Endangers Its Citizens. New York: W. W. Norton, 2008.

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