Treating people with a mental disorder without their consent always has been the defining human rights issue in mental health law. For centuries, unwanted treatment took place in a closed institution—a mental hospital. What has changed is that in recent years the locus of involuntary treatment has shifted from the closed institution to the open community. Much of the strident policy debate on outpatient commitment—a civil court order requiring a person to adhere to mental health treatment in the community—treats it as if it were simply an extension of inpatient commitment, viewing it within the same conceptual and legal framework historically used to analyze commitment to a mental hospital. Increasingly, however, it is becoming apparent that concepts developed within a closed institutional context do not translate well to the much more open-textured context of the community. It was for a good reason that mental hospitals have been described as “total institutions”—a single source supplied an individual’s lodging, delivered benefits, maintained order, and provided treatment. In the community, however, one source supplies an individual’s lodging (a housing agency), another delivers benefits (a welfare agency), a third maintains order (the criminal justice system), and a fourth provides treatment (the mental health system). Outpatient commitment is better seen as only one of a growing array of legal tools from the social welfare and judicial systems now being used as “leverage” to ensure treatment adherence in the community.
Leverage from the Social Welfare System
People with serious mental disorders may qualify under current law to receive certain social welfare benefits. Two benefits to which some people are entitled under current laws are disability benefits and subsidized housing.
Money as Leverage
Recipients of federal benefits typically receive checks made in their own names. The Social Security Act, however, provides for the appointment of a “representative payee” to receive the checks if it is determined to be in the beneficiary’s best interests to do so. Some patients who have a representative payee (or a more informal “money manager”) believe that there is a quid pro quo relationship between their adherence to treatment and their receipt of funds.
Housing as Leverage
Recent surveys have found that there is not a single city or county in the United States in which a person with a mental disorder living solely on disability benefits can afford the fair market rent for an efficiency apartment. To avoid widespread homelessness, the government provides a number of housing options in the community for people with a mental disorder. No one questions that landlords can impose generally applicable requirements—such as not disturbing neighbors— on their tenants. However, landlords sometimes impose the additional requirement on a tenant with mental disorder that he or she be actively engaged in treatment.
Leverage from the Judicial System
People with severe mental disorders are sometimes required to comply with treatment as ordered by judges or by other officials acting in the shadow of judicial authority (e.g., probation officers). Even without a formal judicial order, patients may agree to adhere to treatment in the hope of avoiding an unfavorable resolution of their case, such as being sentenced to jail or being committed to a hospital.
Jail as Leverage
Making the acceptance of mental health treatment in the community a condition of sentencing a defendant to probation rather than to jail has long been an accepted judicial practice. In addition, a new type of criminal court—called, appropriately, a “mental health court”—has been developed that makes even more explicit the link between criminal sanctions and treatment in the community. Adapted from the drug court model, a mental health court offers the defendant intensely supervised treatment in the community as an alternative to jail.
Hospitalization as Leverage
Outpatient commitment, as described above, refers to a court order directing a person with a serious mental disorder to comply with a prescribed plan of treatment in the community, under pain of being hospitalized for failure to do so if the person meets the statutory criteria. Outpatient commitment, in this view, is properly seen as only one of several forms of “leverage” used to ensure treatment adherence and not as the sum and substance of “involuntary treatment” in the community.
Psychiatric Advance Directives
One way to establish a person’s preferences regarding future treatment, should the person become unable to make or to communicate those preferences in the future, is for the person to “mandate” the preferred treatment himself or herself. Usually, advance directives pertain to medical care at the end of life. But a federal law has given impetus to mental health advocates to promote the creation of advance directives for psychiatric treatment. These directives allow competent persons to declare their preferences for mental health treatment, or to appoint a surrogate decision maker, in advance of a crisis during which they may lose capacity to make reliable health care decisions themselves.
- Bonnie, R., & Monahan, J. (2005). From coercion to contract: Refraining the debate on mandated community treatment for people with mental disorders. Law and Human Behavior, 29, 487-505.
- Monahan, J., Bonnie, R., Appelbaum, P., Hyde, P., Steadman, H., & Swartz, M. (2001). Mandated community treatment: Beyond outpatient commitment. Psychiatric Services, 52, 1198-1205.
- Monahan, J., Redlich, A., Swanson, J., Robbins, P., Appelbaum, P., Petrila, J., et al. (2005). Use of leverage to improve adherence to psychiatric treatment in the community. Psychiatric Services, 56, 37-14.
- Monahan, J., Swartz, M., & Bonnie, R. (2003). Mandated treatment in the community for people with mental disorders. Health Affairs, 22, 28-38.
Return to the overview of Mental Health Law in Forensic Psychology.