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Recommendation Report for Involuntary Civil Commitment

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Recommendation Report for Involuntary Civil Commitment

July 31, 2009

    Recommendation Report for

    Involuntary Civil Commitment

    Problems, Alternatives, and Solutions

    Amelia Spriggs

    Auburn University

Introduction

     Involuntary civil commitment is legally defined as “court ordered mental health services in either an outpatient or inpatient setting” (Alabama Legislature, 1975). It is a course of action available in 43 states of the U.S. and several European countries. Procedures and definitions vary greatly but ethical issues persist across every state and country. Involuntary confinement or coerced medication constitutes a grave intrusion on personal liberty and autonomy. But some mental health patients may pose a danger to themselves or the people around them. They may refuse treatment to the detriment of their health and wellbeing. How can it be known whether these patients are competent enough to refuse treatment? Even though there are claims that mandated treatment is too intrusive, there are also claims that treatment is scarce and unavailable for those that need it. This report will examine the national debate over involuntary commitment. It will outline the current problems with commitment, possible solutions, and the positive and negative aspects of those solutions. The conclusion of the report will recommend a solution for implementation. The goal of the recommended solution will be to balance the liberty rights of patients with the safety of society. Specific references to mental health law will refer to Alabama state law unless otherwise stated.

     In the state of Alabama, any person can draw and file a petition for commitment. The petition must contain the following information:

    (1) The name and address, if known, of the respondent.

    (2) The name and address, if known, of the respondent's spouse, legal counsel, or next-of-kin.

    (3) That the petitioner has reason to believe the respondent is mentally ill.

    (4) That the beliefs of the petitioner are based on specific behavior, acts, attempts, or threats,

    which shall be specified and described in detail.

    (5) The names and addresses of other persons with knowledge of respondent's mental illness

    who may be called as witnesses. (Alabama Legislature, 1975)

    The petition must be filed at a probate court. Upon review of the probate judge, a hearing will be set and notice will be given to the respondent. At the hearing, the respondent has the right to compel witnesses and cross examine witnesses against him, and the right to protection from self incrimination. The burden of proof for involuntary commitment is “clear and convincing evidence”. If the petition is

    granted, the judge will mandate treatment at a designated mental health facility. His decision for treatment may be inpatient or outpatient, and it is guided by the “least restrictive” principle. Treatment

    may not last more than 150 days at a time, but petitions for recommitment can be filed. Methodology

    History

     I researched the early mental health institutions that eventually gave rise to involuntary commitment. These sources were primarily found in social work journals. Most of these discussed the

    thhorrifying conditions that characterized the early 20 century mental health institutions. They also

    discussed the period of reform that followed the civil rights movement, and how it shaped the system we recognize today. I highlighted several of the landmark court cases that were crucial to the reform movement. I included comparisons of the current system with the old system to demonstrate the persistent problems that commitment entails. These comparisons also serve to highlight the general trend of mental health treatment. The history section was designed to provide an informed transition into the current state of involuntary commitment.

Findings

     The prime method for solutions research was literature review. Most of the sources used to compile this report were scholarly. They were found by searching general and legal databases. The articles were found in various journals in the fields of social work, psychology, law, and politics. Journal articles were used to assess the national dialogue on involuntary commitment. This dialogue involves an array of opinions, ranging from those who support outright abolishment of involuntary commitment, to those who believe that commitment laws are not strong enough, and everything in between. I gleaned possible solutions and alternatives from the opinions in the articles. I outlined the positives and negatives of each solution as objectively as possible, primarily using critiques and analysis available in the sources I consulted. The purpose of this section is to present the information available, and to give an overview of the solutions I considered for recommendation.

     Another source for information was the Code of Alabama, which is comprised of statutory laws of Alabama. The relevant codes are found in Title 22, Chapter 52. Title 22 contains Alabama’s mental

    health laws. I fully read Article 1 to familiarize myself with the definitions and procedures of civil commitment. The full text of Article 1 can be found in the appendix of this report. Recommendations

     After considering the solutions presented from all sides of the debate, I chose those that I felt were most likely to be realistic and effective. These solutions have been recommended before by other professionals familiar with the issue. The solutions were found in array of academic journals, including those in the fields of law, psychology, politics, and social work. I attempted to combine separate suggestions into a more effective and balanced multivariate solution.

Findings

    History

    There is a popular image of mental health facilities as insane asylums, where deranged patients are strapped to gurneys or thrown into padded rooms. These facilities are dark and dismal, full of hopeless people that have been locked away indefinitely; there may be a lone sane person who, by unfortunate chance, has been counted among the crazed. This image no longer aligns with reality today, but 100 years ago, it would have been frighteningly accurate.

    Ironically, the insane asylums of pop culture arose out of the Progressive Era. Reformers “had

    argued persuasively that public institutions could help many disabled individuals who previously had been left to fend for themselves” (La Fond, 1994). Historically, mentally ill persons were considered

    untouchables in society, and they were often housed in jail, alongside with legitimate criminals. They were deemed to be unfeeling and almost subhuman; consequently, little care was given to their conditions. Reformer Dorothea Dix was told by a mental health worker that "the insane do not feel heat or cold" (Viney & Zorich, 1982). Reformers such as Dix recognized the need to separate mentally ill people from criminals. The Progressive Era ushered in the popularity of institutionalization, which systematized the treatment of mentally ill patients. According to La Fond (1994),”Hospitalization and

    treatment of the mentally ill, even without the patient's informed consent, were considered necessary to help a person in need.” While this was an improvement over imprisonment, institutions gained a

    dismal reputation for treatment and conditions. Following radical reform, the number of mental health institutions and patients increased greatly and rapidly. With the increase of patients followed crowded and inhumane conditions, caused in part by a lack of legislated protection of the mentally ill, and also by a lack of understanding on how to treat mental illness.

    The civil rights movement of the 1960s benefitted not only racial minorities but also the mentally ill. Recognition of due process rights moved to the forefront of the debate on mental health treatment. Additionally, the field of psychology made great strides in understanding and treating mental illness. Because of these developments, “the normative vision embodied in the American legal system

    regulating the delivery of involuntary mental health services… changed dramatically” (La Fond, 1994). “Fiscal conservatives joined forces with civil libertarians to reduce the number of individuals confined to large state hospitals,” a trend that became a policy known as deinstitutionalization (La Fond, 1994). Mental health laws were revised to fit contemporary legal theory, leading to stricter requirements regarding involuntary commitment. The grounds for commitment were narrowed, requiring patients to be in danger of causing serious harm to themselves or others; being in need of treatment was no longer sufficient to justify commitment. Procedural protection was afforded; due notice was required to be given to a patient, and the patient was allowed to retain an attorney. The “least restrictive alternative” principle became the dominant factor in deciding treatment for a patient. The least restrictive alternative “required the state to avoid confining an individual in a state psychiatric facility if other

    placement in the community could adequately serve the purpose of commitment” (La Fond, 1994).

    Despite these numerous reforms, the balance of patient rights and safety still poses a problem from policy makers and mental health professionals.

    Problems

    Homelessness. One of the most apparent problems with lack of mental health treatment is homelessness. Many mentally ill persons cannot function successfully in society without treatment. Consequently, mental illness increases vulnerability to homelessness and “persons with mental illness

    are over-represented among the homeless relative to the general population” (Sullivan, Burnam, &

    Koegel, 2000). If they cannot afford treatment, or treatment is unavailable, or they are unwilling to seek

    treatment, they may deteriorate to the point of homelessness. Critics attribute the absence of treatment to a variety of reasons. According to one cited reason, the national policy of deinstitutionalization has resulted in “a lack of treatment and support” stemming from “states’ failure to shift mental health resources into the community” (Lee, 1994). An editorial in the Houston Chronicle blamed archaic Medicare legislation, which has discouraged psychiatrists from treating indigent patients (Denial of care, 2009).

    Incarceration. As with homelessness, the mentally ill are overrepresented in prisons. Without treatment the mentally ill are already vulnerable to a range of factors that contribute to their chances of incarceration. Mentally ill prisoners “suffer disproportionately from comorbidities with drug and alcohol

    abuse,” and they are “twice as likely to have been homeless before entering prison” (Gostin, 2007). There is little access to mental health treatment in prison, and even if a prisoner could obtain it, it is woefully inadequate. The overall structure of correctional facilities is destructive to a mentally ill prisoner, especially since adequate treatment is unavailable. Unfortunately, incarceration and crimes are a vicious cycle when extremely mentally ill persons do not receive treatment. “Mentally ill inmates,

    at the extreme, may have little appreciation of why or how they were imprisoned” and upon release,

    they again deteriorate and find themselves back in prison (Gostin, 2007).

    Unavailability of services. A chronic unavailability of mental health services has plagued the

    U.S. and other countries constantly. Deinstitutionalization marked progress in the understanding of mental illness and treatment but the momentum of the movement died quickly after mental health institutions were dismantled. The civil rights advocates who campaigned for deinstitutionalization sought to integrate the mentally ill into the community, and protect them in the community by “erecting a social safety net” and “providing a range of supportive and psychiatric services” (Gostin, 2007).

    However, there was a nearly complete failure in providing any of these supports. Without supports and

    treatment, many mentally ill persons were unable to function successfully in the community. What resulted was a “massive transmigration of mentally ill persons from ‘old’ to ‘new’ institutions, such as jails, remand centres, prisons, nursing homes and homeless shelters” (Gostin, 2007).

     If one of the primary goals of mental health treatment is autonomy,

    Abridgement of personal rights/autonomy. Historically it has been accepted that

    compulsory medical treatment is necessary for mentally ill patients, whether they consent or not. Beginning with the 1960s Civil Rights Movement, a trend has emerged in mental health treatment that emphasizes patient autonomy and self determination. Patients have taken on a “consumer role” where

    patient satisfaction is the marker of successful treatment. Ironically this may mean a patient will find satisfaction in refusing treatment. A subset of “militantly anti-psychiatry” patients has clashed with the

    “paternalistic orientation” of mental health professionals, arguing that forced treatment is never acceptable (Wilk, 1988). They tend to view involuntary civil commitment as a “tool of oppression”, used

    and maintained by a “tyranny of experts”(Wilk, 1988). Not only do they consider coerced treatment as

    despotic, but they also defy their diagnoses of mental illness. Mental illness is often diagnosed by a clinical impression because there are no biological markers for mental illness (Agnetti, 2008). Simply put, people are mentally ill because a psychiatrist has labeled them as such.

     Mental health professionals tend to believe that patients “affected by psychoses or serious

    mood and personality disorders do not accept the sick role and often reframe their condition by questioning psychiatric models” (Agnetti, 2008). There is a persistent conflict between caregivers and

    patients over the goals of treatment, and the methods to reach their respective goals. Psychiatrists tend to stress a “medical model,” which posits mental illness as a sick condition that can be treated or maintained (Agnetti, 2008). The focus is on recovery or management of the treatment, which may or may not involve medication or therapy. On the other hand, “consumers indicate support for subjective

    experience and independent decision” as more important—in other words, personal autonomy takes

precedence over treatment (Agnetti, 2008). Unfortunately, patient desire is sometimes “at odds with

    the traditional psychiatric paradigms,” where the goal for wellness is “embedded in professional interpretation and expertise” (Agnetti, 2008).

    Fear of coercion. It has been suggested by some researchers that a fear of coercion may discourage mentally ill people from seeking treatment (Swartz, Swanson, & Hannon, 2003). Available survey data suggests that mental health professionals tend to disagree, further underscoring the divide between professionals and patients on forced treatment. Swartz, Swanson, & Hannon found that patients with a history of with involuntary commitment were particularly reluctant to seek help (2003). Recent experiences and warnings of nonadherence to mandated treatment were associated with barriers to care. It is notable that the mentally ill respondents in Swartz’s study were diagnosed with schizophrenia, which is arguably one of the most difficult illnesses to treat on a long term basis. This may suggest that those who need help most may be particularly unwilling to seek help due to previous negative experiences with the mental healthcare system.

    Lack of accountability. Historically, there has been a lack of accountability of healthcare professionals for treating the unwilling.

    Significant Court Cases

    Heller vs. Doe

    Wyatt vs. Stickney

    O’Connor v. Donaldson

    Lessard v. Schmidt

    Possible Solutions

    Abolishing involuntary commitment. The most radical solution for problems surrounding

    involuntary commitment is simply to abolish it. Civil libertarians value personal autonomy above all else, and they believe that the government should never interfere with the personal lives of citizens. Legal advocates cite a variety of rights violations that they believe justifies the abolishment of involuntary commitment

    Focusing more on outpatient treatment. Involuntary commitment may be inpatient or

    outpatient treatment. The judge is guided by the least restrictive principle, and outpatient treatment is less restrictive than inpatient treatment. However, inpatient commitment is often assigned merely because no other alternatives exist (Lorant et al., 2007). This suggests that ill patients may receive the most restrictive care or no care at all. Outpatient treatment may prevent hospitalization, relapse, and inpatient commitment (Involuntary outpatient commitment, 2008; Swanson et al., 2003). It allows a greater degree of freedom than the physical confinement of inpatient commitment. Its goal is to “enable more consistent adherence to treatment” which should ultimately enhance quality of life

    (Swanson et al., 2003). Although the element of coercion moderates some of the benefits of outpatient commitment, compliance in medication and therapy have been shown to significantly improve the quality of life of the most seriously mentally ill.

    Critics have the same arguments against outpatient commitment as they have against inpatient commitment. They believe that any coercive treatment “infringes on civil liberties, extends unwarranted social control into the community, and may actually drive people away from needed treatment”

    (Swanson et al., 2003). Other critics believe that outpatient commitment is ineffective because adherence to treatment is difficult to enforce. One glaring instance of commitment failure resulted in the Virginia Tech shooting in 2007 (Involuntary, 2008). The shooter Seung-Hui Cho was committed to a mental hospital in 2005 because several students and a faculty member reported troubling behavior.

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