Civil commitment is the legal process under which individuals with mental illness may be subjected to involuntary hospitalization. This research paper discusses the impact and consequences of commitment, the justifications for the resulting intrusion on liberty, the statutory criteria for commitment, and the constitutional requirements that underlie them. It examines the requirement that candidates for commitment must be mentally ill or disordered and the psychiatric conditions that will qualify. It then considers the requirement of functional impairment imposed by these statutes and the Constitution, including incompetency in the case of parens patriae criteria and volitional impairment in the case of police power criteria. It also discusses the kinds of danger that may satisfy police power criteria, the degree of imminence of such danger that is required, and the methods used by clinical evaluators in predicting dangerousness. It then considers the medical appropriateness and least restrictive alternative requirements for commitment. It concludes by discussing the procedural due process hearing requirements for commitment.
The Impact and Consequences of Civil Commitment
In the past 50 years, the use of civil commitment has been reduced. The census of public mental hospitals in 1955 was around 550,000. The policy of deinstitutionalization, the shift of the locus of care from the hospital to the community, and the tightening of civil commitment criteria have reduced our reliance on involuntary hospitalization. Only about 55,000 patients are now hospitalized on any particular day. However, patients once spent long periods and sometimes an entire lifetime in the hospital, whereas most patients today are discharged after 30 days or less, and many within as few as 5 days. For many patients, civil commitment has become a revolving door, whereby they experience several periods of hospitalization each year. Civil commitment thus continues to affect a large number of patients, even if the duration of hospitalization has been dramatically reduced.
Civil commitment results in a massive curtailment of liberty. It intrudes on the fundamental interest in being free of external restraint. Patients are subjected to detailed regulation of their every activity, and they are forced to submit to various forms of intrusive treatment, including psychotropic medication, which may cause severe and unwanted side effects that are lasting. Involuntary hospitalization also imposes a severe stigma, which produces continued social and occupational disabilities long after discharge. As a result, the criteria for involuntary hospitalization have been limited, and the procedural protections required before it may be imposed have been expanded.
Justifications for Civil Commitment
There are two justifications for civil commitment. The first is the government’s police power interest in protecting the community from those who are predicted to be dangerous as a result of their mental illness. The second is the parens patriae interest in protecting the best interests of those whose illness deprives them of the ability to make rational decisions on their own behalf concerning their need for hospitalization and treatment. The Fifth and Fourteenth Amendment due process clauses place substantive and procedural limitations on governmental deprivations of liberty. At a minimum, such deprivations may not be arbitrary or purposeless. Because the liberty interest in being free of external restraint is a fundamental constitutional right, an exceedingly heavy burden of justification is placed on the government. To satisfy constitutional requirements, civil commitment thus must be justified as being necessary to accomplish one or more compelling governmental interests. The state’s police power and parens patriae power interests are both compelling and in appropriate cases, therefore, will justify commitment. These two justifications are reflected in typical civil commitment statutory criteria. The individual will be entitled to a hearing at which the state must demonstrate satisfaction of the criteria and show that there is no less intrusive alternative method of achieving the government’s interests in protecting the individual or the community. Then, commitment may be authorized for a limited time period.
Civil Commitment Statutory Criteria
Commitment statutes typically begin by requiring “mental illness or disability” but define these terms imprecisely or circularly. Often these illnesses or disabilities are described as “significant, severe, substantial, or gross impairments.” Some conditions are expressly excluded from coverage, notably mental retardation, epilepsy, developmental disabilities, drug addiction, and alcoholism. Sometimes antisocial personality disorder is excluded. In practice, clinicians applying these definitions typically limit hospitalization to those with schizophrenia, major affective depression, or bipolar disorder. Other psychiatric diagnoses are sometimes thought of as justifying at least brief hospitalization—borderline personality disorder, narcissistic personality disorder, reactive depression, and anorexia nervosa, for example, at least when the patient is in crisis.
In addition to requiring mental illness, state civil commitment statutes typically specify some degree of functional impairment resulting from such illness. An overwhelming majority of statutes use the phrase “dangerous to self or others.” The avoidance of danger to self constitutes an application of the state’s parens patriae power; the avoidance of danger to others constitutes an expression of its police power in protecting the community from harm.
Parens patriae commitment is paternalistic in nature. It is based on the inability of the individual, as a result of mental illness, to understand the need for care and treatment in a hospital. The purpose is to protect the individual from harm and to improve his or her health. This form of commitment contemplates both that the individual suffers from a cognitive impairment that significantly impairs rational decision making and that hospitalization would be in his or her best interests.
An essential aspect of parens patriae commitment is the incompetency of the patient. Yet some state statutes fail to explicitly require a determination of incompetency. Because such incompetency is a historic requirement for invocation of the parens patriae power, however, courts will read this requirement into the statute to satisfy constitutional requirements. Publicly labeling an individual as incompetent is stigmatizing, and it often imposes negative self-attributional effects on the patient that may undermine performance and motivation and cause a form of depression. As a result, incompetency should be narrowly defined, and a presumption should exist in favor of competency. Many state statutes so provide. The concept of competency is rarely defined with precision. It typically requires the ability to make a decision, understand treatment information, rationally manipulate it, and appreciate the implications and consequences of alternative options. Requiring a high level of ability in these respects, however, seems unreasonable, particularly since many patients who are not mentally ill lack these abilities. Mental illness alone, even schizophrenia, does not equate with incompetence. Many patients with mental illness requiring hospitalization will possess sufficient competence to make the decision for themselves. Only if they have been deter-mined to be so grossly impaired cognitively that their decisions are not worthy of respect should patients be found sufficiently incompetent to justify parens patriae commitment.
Commitment based on dangerousness to others constitutes an application of the state’s police power interest in protecting the community. Some people suffering from mental illness may be dangerous to others. Dangerousness alone cannot justify commitment, however—many people are dangerous but not mentally ill. We typically use the criminal sanction to deal with such dangerousness, requiring an adjudication of guilt before punishment may be applied. Only rarely in our constitutional system is preventive detention permitted. Police power civil commitment is one of these rare exceptions.
In addition to dangerousness, it must be shown that the individual’s mental disability significantly impairs the ability to control his or her behavior. In the context of sex offender civil commitment, the Supreme Court has required that to justify commitment, the individual’s disability must make it difficult to control behavior. To justify civil commitment on police power grounds, it therefore must be shown that the individual’s mental disability seriously diminishes volitional control. This requirement is not reflected in typical civil commitment statutes, but courts will mandate it as a constitutional matter.
To meet the criteria for police power commitment, the individual must be both mentally ill and predicted to be dangerous. State statutes frequently are ambiguous concerning the degree of dangerousness that must be found to exist. As a constitutional matter, such dangerousness should be predicted to be likely to occur within a reasonable time in order to justify hospitalization, and the danger to be avoided must be sufficiently serious to justify this significant intrusion on liberty. Involuntary hospitalization is not justified merely to protect the community from the inconvenience or personal offense of being confronted by someone with mental illness. The danger to be avoided must be a serious one. Certainly, the prevention of physical injury would qualify. Some state statutes permit commitment based on danger to property alone, either expressly or by leaving the term dangerousness undefined. Some civil commitment statutes require that the danger to be prevented be imminent, but many do not. Some courts have imposed an imminence requirement, but others have declined to do so.
When dangerousness is the basis for commitment, it must be supported by the testimony of clinical expert witnesses who have evaluated the individual. Clinical prediction of dangerousness, however, is probably accurate in no more than one out of every two cases. In recent years, risk assessment instruments have increasingly been used to supplement and anchor clinical prediction, thereby producing a higher degree of accuracy.
The Medical Appropriateness Requirement
When an individual is not mentally ill and when hospitalization is not therapeutically appropriate, hospitalization should not be permitted as a matter of due process (Winick, 2005). Even though many state civil commitment statutes may not explicitly require this determination, they often will condition commitment on its being in the “best interests” of the individual or require a finding that hospitalization is appropriate in the circumstances. In any event, this limitation would seem to be required as a matter of due process. Unless the individual suffers from a treatable mental disorder, psychiatric hospitalization should not be permitted.
The Least Restrictive Alternative Principle
Even if a police power or parens patriae power rationale justifies civil commitment, hospitalization must also be found to be the least restrictive means of accomplishing the state’s interests in protecting the individual or the community. This limitation is mandated by due process, as well as by a majority of state commitment statutes. Under this principle, the court must consider whether less restrictive community placements are available for the individual that would suffice to meet his and the community’s needs.
Moreover, even if hospitalization is deemed to be required, once the individual’s needs can be met through community treatment, the least restrictive alternative principle would require conditional release from the hospital to such community treatment. Hospitalization should be resorted to only if it is necessary. When its purposes can be accomplished through outpatient treatment, partial hospitalization, or other forms of treatment in the community, the significant deprivation of liberty that hospitalization represents would be inappropriate.
The Civil Commitment Hearing
The commitment criteria will be applied at a hearing before a judge or a hearing examiner, where the state will have the burden of persuasion concerning satisfaction of these standards. At the hearing, the individual will be given the opportunity to cross-examine the state’s clinical experts and submit his or her own expert witnesses and other evidence in rebuttal of the state’s case. These and other procedural elements are constitutionally required as a matter of procedural due process. State statutes typically describe the procedures that must be followed at the hearing. These include notice and a formal hearing before involuntary hospitalization may be authorized, or shortly thereafter when commitment is sought on an emergency basis. They also include the right to have an appointed attorney, the right to have a fair and impartial judge or hearing examiner, and the right to be present. The state must bear the burden of persuasion by clear and convincing evidence.
Even though state statutes require a fairly formal adversarial judicial hearing, in practice these hearings tend to be brief and informal rituals at which the judge seems overwhelmingly to defer to the state’s expert witnesses. Rather than playing the adversarial role contemplated by due process, some attorneys engage in only perfunctory advocacy, with the result that the process often appears to the patient to be a farce and a sham. This undermines the purposes of due process— to increase accuracy and allow a sense of participation. The result can be an affront to the patient’s dignity, producing the feeling that he or she has been treated in bad faith, with potentially negative consequences for the efficacy of hospitalization and treatment. As a result, considerations of therapeutic jurisprudence would suggest that to the extent these practices continue to exist, they be altered in ways designed to achieve the participatory and dignitary value of due process.
- Winick, B. J. (2005). Civil commitment: A therapeutic jurisprudence model. Durham, NC: Carolina Academic Press.