Psychiatric Annals

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FORENSIC PSYCHIATRY 

In Search of a Sane Commitment Statute

Darold A Treffert, MD; Richard W Krajeck

Abstract

1 Treffen. D A The practical limits of patients' rights. Psychiatric Annals 5 (1975), 158-161.

2 Peele. R . Chodoff, P., and Taub. N Involuntary hospitaliza! ion and treatability: Observations from the District of Columbia experience. Catholic Univ. Law Rev. 23 (1974), 744-753.

3 Rachltn. S. With Liberty and Psychosis for All (In press.)

4 American Psychiatry Association. Position statement on involuntary hospitalizaron of the mentally ill. Am. J. Psychiatry 128 (1972), 164-165.

5 Stickney S Wyatl vs. Stickney The right to treatment Psychiatric Annals 48 (1974), 32-45

6. Lessaruv Schmidt (1973), 38 L.Ed Ld 661:94 S. Ct

7 Ennis. B . and Siegel, L The Rights oi Mental Patients New York. Avon Books. 1973

8. Final Report: Senate Select Committee on Proposed Phaseou! o! State Hospital Serwces. California Legislature. Sacramento. March. 1974. pp 3T-45.

9 Laws Ol Massachusetts (1970), Chapter 123, Sect. 1

TABLE 1

HOW THE STATES COMPARE IN COMMITMENT STATUTES…

Last year in these pages, one of us discussed several cases in which mental patients had been allowed to "die with their rights on."1 These were all situations in which an overscrupulous regard for the patient's legal rights had overshadowed reasonable concern for his life.

These cases, and others like them that most of us have heard of at one time or another, point up the need for enlightened legislation to protect the rights of the mentally ìli - laws that will neither criminalize them nor capture them but will, instead, be based on a reasonable middle ground that bears some connection to both clinical realities and legal concerns. It is, of course, a complex problem, for the law that we need must balance the right of the psychiatric patient to be free with the equally valid right of the patient and those around him or her to be protected from any untoward effects of his or her illness.

As a result of that study, we conducted a survey of the mental health acts of all the states. Synthesizing the best features from these laws, we have attempted to construct a model commitment statute. The features of our model statute, which will be discussed in detail below, were then used to construct a 40-point scale. Each state's existing mental health statute was then rated against the model. The results of this study (Table 1) give us, for the first time, a numerical comparison of how each state's mental health act ranks in reference to a stated norm. The study, we believe, will be of value to health professionals and legislators alike in taking steps to improve the mental health laws in the various states. The goal, of course, is to establish a sßHf (íucid, rational, sensible) commitment statute in each of the states, so that (among other things) well-meaning people will not, as sometimes in the past, do irreparable harm to the mentally ill out of unmitigated concern for their welfare.

BACKGROUND

The intense interest in providing due process for all citizens - particularly the mentally ill - is a relatively recent phenomenon.2 Even more recent is the accelerating concern for properly balancing these legal rights with clinical realities on some reasonable middle ground.3

The process of drawing legislation, shepherding it through the state legislative process, and having it enacted is both slow and cumbersome. So it is not surprising that most of the existing state mental health statutes incompletely reflect (and sometimes do not reflect at all) contemporary legal and psychiatric understanding.

Acknowledging this problem, the American Psychiatric Association in 1972 issued a position statement on involuntary hospitalization of the mentally ill. The statement contains four major points:

1. Hospitalization should be reserved only for situations in which less restrictive alternatives cannot be used.

2. When hospitalization cannot be avoided, it should, if at all possible, occur voluntarily.

3. Involuntary hospitalization is necessary for the few patients who will endanger themselves or others unless hospitalized and who are unable to make a free and informed decision.

Table

TABLE 1HOW THE STATES COMPARE IN COMMITMENT STATUTES

TABLE 1

HOW THE STATES COMPARE IN COMMITMENT STATUTES

4. Persons involuntarily hospitalized must be provided full right of due process and judicial review.4

In addition to the civil-rights movement and the A, P.A. statement, a number of legal cases have thrown publicity on the plight of the mentally ill in recent years. Elsewhere in this issue, Dr. P. Browning Huffman and Robert C. Dunn discuss some of the effects of the 1966 Rouse v. Camerati decision and the 1971 Wyatt v. Stickney* case. Since then there have been other decisions. Lessarti v. Schmidt in Wisconsin 1973, for example/ and the concerns of a variety of civilliberties groups/ psychiatrists, and attorneys throughout the country have made the discrepancies in the various commitment statutes even more evident.

HOW THE STATES HAVE REACTED

The states have responded to the various pressures for reform of their mental health acts in varying ways. Legislatures in some states seem to have completely ignored them; the statutes of these states remain stereotyped in their language, archaic in their outlook, and poorly balanced with respect to that reasonable middle ground between ultraliberal and ultraconservative viewpoints.

Some of the states have moved a little towards a more realistic outlook. Some states have laws that are contemporary, creative, and balanced. Perhaps some have moved ahead too quickly and too far, with the resultant creation of new problems. In California, for example, such a situation led to an investigation by a Senate Select Committee and to a report, in 1974, that pointed up the several sides of the commitment dilemma. The report also recommended modifications to the landmark Lan terman-Pe tris-Short Act, which had originally been hailed as the Magna Carta of the mentally ill."

Because of these wide variations from state to state, we thought that it would be useful to assess the content of each state's mental health laws and to synthesize the best elements of each into a composite model.

METHOD

We wrote to the mental health authority of each of the 50 states and of the District of Columbia and requested a copy of the current Mental Health Act. AJl but Delaware, Indiana, and New Jersey responded, and each of the 48 acts received was carefully reviewed.

The review made apparent the wide disparity among the statutes in addressing the major concerns and elements in the commitment process. Major elements were culled from the statutes and formulated into one model that we believe reflected the most enlightened, lucid, balanced, and sensible thinking and language. The model was then used to rate the existing statutes of each stare. These ratings will be discussed later in the course of this article.

Following are the elements in our model statute.

ELEMENTS OF A MODEL STATE COMMITMENT STATUTE

Any state's mental health act must necessarily be a comprehensive document, addressing itself to organization, state and local responsibilities, standards, state-aid formulas, transfer procedures, confidentiality of records, and other concerns. It will usually cover alcoholism, drug abuse, and development disabilities, in addition to menial illness.

Thus, commitment procedures for involuntary hospitalization for the few patients who require them will be only one of the many details covered by the act.

While financial and organizational details wii] vary greatly from state to state, we believe that the overall intent of the act, and the essential elements of its commitment procedures, can and should be relatively uniform. It is only with these two points - overall intent of the state mental health act and the actual commitment procedures - that our model act is concerned.

The 15 major elements we believe essential to the act are:

1. A clear statement of legislative intent. The statement should indicate that it is the intent of the act to provide prompt evaluation and treatment for persons with serious mental illness who require it, and to provide it efficiently and effectively in the shortest possible time commensurate with good treatment. The intent should be to provide the treatment in the least restrictive environment consistent with the circumstances and requirements of the patient. The statement should safeguard individual rights, end inappropriate and indeterminate commitments, and end any legal disabilities arising from commitment. It should indicate the legislature's desire that a comprehensive network of services, including both public and private resources, be utilized to provide both generalized and specialized services for the patient; these services, of course, will range from the very complex to the ordinary, generalized, close-to-home. The act should emphasize the desirability of using both public and private services - in order to avoid waste and duplication, provide for some services as close to the patient's home as possible, and avoid other unnecessary expenses. The act should contain provisions to safeguard the patient and his family from the catastrophic economic effects of his illness.

2. Clear definitions of terms to distinguish the features of the four different disabilities covered by the act (alcoholism, drug abuse, mental retardation, and mental illness). We suggest the following definitions:

Mental illness. Any organic, mental, or emotional impairment, as set forth in the Diagnostic and Statistical Manual of the American Psychiatric Association (current edition), that has substantial adverse effects on a person's cognitive, judgmental, or volitional functions.

Likelihood of serious harm (dangerousness). This would include (1) substantial risk of serious harm to the person himself, as manifested by evidence of, or attempts at, suicide or serious bodily harm; (2Í substantial risk of physical harm to other persons, as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious harm; (3) very substantial risk of serious impairment or injury to the person himself, as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community.

Gravely disabled. A condition in which a person is unable to provide for his basic personal needs for food, clothing, or shelter as a result of a mental disorder of a type that has (1) developed over a iong period of time and been of long duration, (2) developed as a manifestation of a degenerative brain disease during old age, or (3) developed as a manifestation of some other degenerative physical illness of long duration.

Developmental disability. A disability attributable to mental retardation, cerebral palsy, epilepsy, or other neurologic impairments closely related to mental retardation or requiring treatment similar to that required for patients with mental retardation. Such disability will have originated before the person's 18th birthday, can be expected to continue indefinitely, and constitutes a substantial handicap to the person.

Alcoholic, A person who habitually demonstrates a lack of self-control in the use of alcoholic beverages, using them to the extent that his health is substantially impaired and he thus loses his ability to support and care for himself and his familv-

Drug dependent. A person in a state of psychic or physical dependence, or both, arising from administration of a drug(s) on a repetitive basis to such an extent that his health is substantially impaired and he is thereby unable to support and care for himself or his family.

3. Voluntary admissions. The act should encourage voluntary rather than involuntary admissions except in the few cases where the latter are mandatory. Voluntary patients should have the right to immediate release unless there is an element of clear danger (i.e., homicide or suicide). When voluntary patients present such a likelihood of serious harm to themselves or others, the act should specify that they may be detained for no longer than 72 hours (during which time, regular commitment proceedings can be initiated). Procedures for voluntary admission should be available and encouraged for the three other disability groups, as well as mental patients, provided the disabled person is 18 or older. Persons admitted voluntarily should be advised of their right to immediate release both orally and in writing (see below).

4. Admission of minors. The act should specify different procedures for minors, depending on their age. Minors under age 14 should be allowed to be admitted upon signature of a parent, guardian, or person hi hco parenti?, acting alone provided there follows, within three days, an independent review by a juvenile court as to the minor's need for admission to the facility.

A minor between ages 14 and 18 should be allowed to be admitted on his own signature when it is the minor himself who has initiated the admission request. However, in the case of a minor between the ages of 14 and 18, if the admission request has been initiated by the parent, guardian, or person in loco parentis, such a request must also be signed by the minor himself.

5. Provisions for emergency commitment. Every state mental health act should have specified provisions for emergency commitment by both police officers and mental health professionals. The provisions should include the following procedures: 1. A law enforcement officer who has cause to believe that a person suffers from one of the four disabilities specified in the act (section 2, above) and is exhibiting conduct that constitutes imminent danger to himself or to others - whether actual, attempted, or threatened - may take such person into temporary custody. 2. Alternatively, in such instances, a mental health professional who has examined the person within the preceding 72 hours may order temporary custody. 3. In either event, the person may be kept in custody for no longer than 72 hours, during which time commitment proceedings may be instituted if necessary.

6. Petition for involuntary commitment. Proceedings for involuntary commitment should start with a written petition for examination. The petition should allege that the person to be examined is mentally ill, a proper subject for treatment, and dangerous, as defined in the act (section 2, above). Petitions should be signed by three persons of at least 18 years of age, one of whom must have had personal knowledge of the subject's conduct. The petition should contain a clear, concise statement explaining the dangerous conduct.

Once the petition is filed, the court will review it to determine whether an order of detention should be issued. The act should state that an order of detention should be issued only in cases where the subject presents a substantial risk of seriously harming himself or others,

The mental health act should specify that the court will appoint a counsel for the subject if he does not have an attorney of his own; the counsel will be appointed at court expense if the person is indigent. The court will also appoint counsel to represent the interest of the public and the petitioners - usually the district attorney or corporation counsel.

7. "Probable cause" hearings must be held. In the case of any detention (sections 5 and 6, above), the act should require the court to hold a hearing of record within 72 hours of detention, to determine whether there is probable cause to believe that the allegations are substantiated. If the person is not detained, the court will be required to hold a hearing of record within a reasonable time after the filing of the petition.

The court should ensure that both patient and petitioners have counsel, and that the hearing is conducted with all the essentials of due process and fair treatment - including the right to an open hearing, the right to a counsel of one's choice, the right to confront petitioners, the right to present witnesses, the right to crossexamine, the right to remain silent, and the right to a jury trial if desired.

The proceedings, examinations, and interviews must be conducted in a language understood by the patient. He must be advised of his rights, including his right to have an independent medical evaluation and to refuse treatment in all except life-threatening situations.

8. Observation and judicial review before final commitment. If the court determines that there is reasonable cause to believe the allegations in the petition, it may order an observation period (not to exceed 14 days). At the end of this period, there must be a full judicial review, by jury if requested.

If probable cause is found to exist, the court must appoint two licensed physicians specializing in psychiatry to examine the patient. The right of the person to have his own independent medical examination, at his own expense, should be specified in the act. The psychiatrists must personally examine and observe the patient, satisfy themselves as to his need - or lack of need - for treatment, and report back to the court independently within a reasonable time.

During the observation period between the probable-cause hearing and the full judicial review, the court may order the person detained for a period not to exceed 14 days or may direct that he be allowed to remain at liberty. If detained during this 14-day period, the patient should be free to refuse treatment except in emergency situations where it may be necessary to sustain life or to prevent serious harm to self or others.

At the full judicial review, to be held within 14 days, the court must either dismiss the petition or order commitment. If commitment is ordered, it should be to the treatment program and facility that is least restrictive of the patient's liberty, consistent with adequate mental health therapy. Mandated outpatient treatment should be among the options available when appropriate to the patient's needs.

The facility or program to which the person is committed may discharge him as soon as it is appropriate to do so, transfer him to a less restricted environment, or place him under conditional release to continue outpatient or transitional treatment until the treatment is completed or the patient is no longer considered dangerous.

Persons committed under the act have the right to petition the court for release at any time. The court must hold a hearing on all petitions filed (except those filed less than 30 days after a similar petition by the same patient has been denied). The county court's decisions to commit or refuse to commit any person can be appealed to the circuit court by either the patient or those petitioning for his commitment.

The law should provide for a mandatory judicial review of all commitments under the statute at intervals of no less than six months.

9. Dangerousness: The criteria for commitment. Each state's mental health act should be precise in specifying a definition of risk of dangerousness, the degree of risk required for commitment, and the evidence of risk that must be produced before commitment can be ordered. The following definitions of risk should be included: 1. There is substantial risk of serious harm to the person himself as manifested by evidence of, threats of, or attempts at suicide or serious bodily harm. 2. There is substantial risk of serious harm to others, as manifested by evidence of homicidal or other violent behavior or by evidence that others are placed in reasonable fear of violent or serious physical harm from the actions of the person. 3. There is very substantial risk of serious impairment or injury to the person himself, as manifested by evidence that the person is so affected and is unable to protect himself in the community, and there is no reasonable provision for his protection available elsewhere in the community.*

10. Patients' rights to adequate treatment. Patients' civil rights, and their rights to adequate treatment, should be spelled out in the mental health act. The following points bear specific mention:

The right to be informed both orally and in writing at the time of admission of one's rights under the state mental health act.

The right to petition the county court for review of an involuntary commitment at the intervals specified by law; full protection of habeas corpus.

The right to receive prompt, individualized, adequate treatment.

The right to refuse unusual, dangerous, or experimental treatment.

The right to be free from excessive restraints and seclusion.

The right to religious freedom, to spiritual reliance as a form of treatment in a recognized religious denomination by an accredited practitioner.

The right to confidentiality - privileged communications and privileged records.

The right to personal possessions, including clothing.**

The right to receive visitors/*

Freedom from censorship - the right to uncen - sored written and reasonable telephonic communications.**

11. Treaters' rights. The statute should specify that the treater also has specific rights: to use the customary and usual treatments and procedures in a reasonable and appropriate manner in an effort to ameliorate the conditions that led to the patient's commitment, to use emergency procedures in life-threatening situations, and to curtail specified patient rights (personal possessions, visitors, etc.) if necessary for proper treatment - but only after documented administrative review.

12. Determination of incompetency. The act should distinguish between commitment proceedings and adjudications of incompetency. Commitment is not synonymous with incompetency, nor should it raise a presumption of incompetency. Findings of incompetency must be determined by separate proceedings.

13. Least restrictive alternatives. Provision for the least restrictive form of therapy compatible with good mental health care should be specified in the act. This should include mandated outpatient treatment in lieu of hospitalization if feasible, conditional release to outpatient status as treatment progresses, and provisions for rehospitalizarion of conditionally released outpatients if and when required (but only after proper administrative review).

14. Nonindeterminate commitment should be specified in the act, with mandatory judicial review at specified intervals for all patients.

15. Recognition of spiritual therapy. The act should make provisions for treatment of patients by spiritual means alone, in accordance with the tenets and practices of a recognized religious group and by an accredited practitioner of the group; such treatment should not be construed as authorizing detention of the patient, or his involuntary admission, if he could otherwise be treated without commitment by such means with no substantial risk to himself or others.

RATING THE STATES

Our purpose in rating the statutes of the various states was not to demonstrate how bad (or how good) things are but, rather, to gather the information that could be used to provide a quantitative base! ine against which new statutes could be measured. Interest in providing adequate due process for the mentally ill is a relatively recent phenomenon, and even more recent is the realization that legal rights must be balanced realistically with clinical realities.1'3

Since the transformation of this interest into legislative bills - and, subsequently, statutes - is a slow, cumbersome process, it is not surprising that the current statutes, for the most part, do not reflect contemporary psychiatric and legal understanding.

The rating of the various state statutes is shown in Table 2. The scale lists 40 features we believe a model commitment statute should contain. Each has been given a numerical value of 1, Thus, a statute containing all 40 of these features would score 40. Scores actually ranged from a high of 31 points (Washington) to a low of zero (Alabama, Montana). The average was 11.8.

Our attempt to quantify commitment practices is an imperfect one, but it is a beginning. The scale is harsh. It makes no attempt to score the many other features that are essential to a comprehensive mental health act; instead, it concentrates entirely on those points pivotal to the commitment and treatment process, If all the factors that go to make up a sound state mental health statute were being judged, some of the states would certainly score much more impressively than they do in Table 2. Even in the commitment area alone, the fact that various elements were not given more weight than others means that some statutes that contain many of the most significant features do not score impressively in comparison with stales whose statutes contain more of the less essential points. For example, some of the mental health acts contain remarkably contemporary tre atment features yet score poorly because they are delinquent in those areas highly represented on our scale - e.g., criteria for dangerousness.

CONCLUSION

From the review, it is evident that there is a tremendous variation from state to state in what should be a uniform commitment procedure. There is a need for enlightened mental health legislation on the state level that balances legal rights with clinical realities in some reasonable way.

Most of the state mental health acts today are inadequate. Some, because of an overly scrupulous concern for the patient's civil liberties, bypass reasonable concern for the patient's life; others ignore due process to an equally imprudent degree. Much could be accomplished through the development of a Uniform Act for the Commitment of the MentaJív 111, analogous to the Uniform Alcoholism Treatment Act and the Uniform Drug-Dependency Treatment Act now in use.

The composite act outlined above can be used as a model for statutes now being revised. Table 2 can be used as a check list to gauge the completeness of legislative proposals to change the mental health statutes as they are developed. We hope that the model we have constructed will be useful in the further development and implementation of a sane commitment statute in each of the states.

BIBLIOGRAPHY

1 Treffen. D A The practical limits of patients' rights. Psychiatric Annals 5 (1975), 158-161.

2 Peele. R . Chodoff, P., and Taub. N Involuntary hospitaliza! ion and treatability: Observations from the District of Columbia experience. Catholic Univ. Law Rev. 23 (1974), 744-753.

3 Rachltn. S. With Liberty and Psychosis for All (In press.)

4 American Psychiatry Association. Position statement on involuntary hospitalizaron of the mentally ill. Am. J. Psychiatry 128 (1972), 164-165.

5 Stickney S Wyatl vs. Stickney The right to treatment Psychiatric Annals 48 (1974), 32-45

6. Lessaruv Schmidt (1973), 38 L.Ed Ld 661:94 S. Ct

7 Ennis. B . and Siegel, L The Rights oi Mental Patients New York. Avon Books. 1973

8. Final Report: Senate Select Committee on Proposed Phaseou! o! State Hospital Serwces. California Legislature. Sacramento. March. 1974. pp 3T-45.

9 Laws Ol Massachusetts (1970), Chapter 123, Sect. 1

TABLE 1

HOW THE STATES COMPARE IN COMMITMENT STATUTES

10.3928/0048-5713-19760601-06

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