Involuntary commitment or civil commitment is a legal process through which an individual with symptoms of severe mental illness is court-ordered into treatment in a hospital (inpatient) or in the community (outpatient).
Criteria for civil commitment are established by law, which varies between nations and, in the U.S., from state to state. Commitment proceedings often follow a period of emergency hospitalization during which an individual with acute psychiatric symptoms is confined for a relatively short duration (e.g. 72 hours) in a treatment facility for evaluation and stabilization by mental health professionals - who may then determine whether further civil commitment is appropriate or necessary. If civil commitment proceedings follow, the evaluation is presented in a formal court hearing where testimony and other evidence may also be submitted. The subject of the hearing typically is entitled to legal counsel and may challenge a commitment order through habeas corpus rules.
Historically, until the first third of the twentieth century or later in most jurisdictions, all committals to public psychiatric facilities and most committals to private ones were involuntary. Since then, there have been alternating trends towards the abolition or substantial reduction of involuntary commitment,[1] a trend known as "deinstitutionalization."
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In most jurisdictions, involuntary commitment is specifically applied to individuals found to be suffering from a mental illness that impairs their reasoning ability to such an extent that the laws, state or courts find that decisions must or should be made for them under a legal framework. (In some jurisdictions this is a distinct proceeding from being "found incompetent.")
Involuntary commitment is used to some degree for each of the following headings although different jurisdictions have different criteria. Some jurisdictions limit court-ordered treatment to individuals who meet statutory criteria for presenting a danger "to self or others." Other jurisdictions have criteria that are broader.
Training is gradually becoming available in mental health first aid to equip community members such as teachers, school administrators, police officers, and medical workers in recognizing and managing situations where evaluations of behavior might be appropriate.[2] The extension of first aid training to cover mental health problems and crises is a quite recent development.[3][4] A mental health first aid training course was developed in Australia in 2001 and has been found to improve assistance provided to persons with a mental illness or in a mental health crisis. This form of training has now spread to a number of other countries (Canada, Finland, Hong Kong, Ireland, Singapore, Scotland, England, Wales, United States).[5] Mental health triage may be used in an emergency room to evaluate the degree of risk and prioritize treatment.
Observation is sometimes used to determine if a person warrants involuntary commitment. It is not always clear on a relatively brief examination whether a person is psychotic or otherwise warrants commitment.
A common reason given for involuntary commitment is to prevent danger to the individual or society. People with suicidal thoughts may act on these thoughts and harm or kill themselves. People with psychoses are occasionally driven by their delusions or hallucinations to harm themselves or others. People with certain types of personality disorders can occasionally present a danger to themselves or others.
This concern has found expression in the standards for involuntary commitment in every U.S. state and in other countries as the "danger to self or others" standard, sometimes supplemented by the requirement that the danger be "imminent." In some jurisdictions, "danger to self or others" standard has been broadened in recent years to include need-for-treatment criteria such as "gravely disabled."
In Arizona, the government can mandate in-patient treatment for anyone determined to be "persistently or acutely disabled." Virtually anyone who suspects that someone has mental problems and needs help could file an application to a state-licensed healthcare agency for a court-ordered evaluation.
In Connecticut, someone can be committed only if he or she has "psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled". "Gravely disabled" has usually been interpreted to mean that the person is unable on his own to obtain adequate food, shelter and clothing.
In Iowa, any "interested person" may begin commitment proceedings by submitting a written statement to the court. If the court finds that the respondent is "seriously mentally impaired," he or she will be placed in a psychiatric hospital for further evaluation and possibly treatment. Further hearings are required at specific intervals for as long as the person is being involuntarily held.
The Michigan Mental Health Code provides that a person "whose judgment is so impaired that he or she is unable to understand his or her need for treatment and whose continued behavior as the result of this mental illness can reasonably be expected, on the basis of competent clinical opinion, to result in significant physical harm to himself or herself or others" may be subjected to involuntary commitment, a provision paralleled in the laws of many other jurisdictions. These types of provisions have been criticized as a sort of "heads I win, tails you lose". Understanding one's "need for treatment" would cause one to agree to voluntary commitment, but the Bazelon Center has said that this "lack of insight" is "often no more than disagreement with the treating professional"[6] and this disagreement might form part of the evidence to support one's involuntary commitment.
In Nevada, prior to confining someone, the state must demonstrate that the person "is mentally ill and, because of that illness, is likely to harm himself or others if allowed his liberty."
In Oregon, the standard that the allegedly mentally ill person "Peter [h]as been committed and hospitalized twice in the last three years, is showing symptoms or behavior similar to those that preceded and led to a prior hospitalization and, unless treated, will continue, to a reasonable medical probability, to deteriorate to become a danger to self or others or unable to provide for basic needs" may be substituted for the danger to self or others standard.
In Utah, the standard is that "the proposed patient has a mental illness which poses a substantial danger".[7] "Substantial danger" means the person, by his or her behavior, due to mental illness: (a) is at serious risk to: (i) commit suicide, (ii) inflict serious bodily injury on himself or herself; or (iii) because of his or her actions or inaction, suffer serious bodily injury because he or she is incapable of providing the basic necessities of life, such as food, clothing, and shelter; (b) is at serious risk to cause or attempt to cause serious bodily injury; or (c) has inflicted or attempted to inflict serious bodily injury on another.[8]
Starting in the 1960s, there has been a worldwide trend toward moving psychiatric patients from hospital settings to less restricting settings in the community, a shift known as "deinstitutionalization." Because the shift typically was not accompanied by a commensurate development of community-based services, critics say that deinstitutionalization has led to large numbers of people who would once have been inpatients being incarcerated in jails and prisons or becoming homeless when outpatient services are not available or they choose not adhere to treatment outside the hospital. In some jurisdictions, laws authorizing court-ordered outpatient treatment have been passed in an effort to compel individuals with chronic, untreated severe mental illness to accept treatment while living outside the hospital.
United Nations General Assembly (resolution 46/119 of 1991), "Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care" is a non-binding resolution advocating certain broadly-drawn procedures for the carrying out of involuntary commitment. These principles have been used in many countries where local laws have been revised or new ones implemented. The UN runs programs in some countries to assist in this process.
In Australia, court hearings are not required for involuntary commitment. Mental health law is constitutionally under the state powers. Each state thus has different laws, many of which have been updated in recent years.
The usual requirement is that a police officer or a physician determine that a person requires a psychiatric examination, usually through a psychiatric hospital. If the person is detained in the hospital, they usually must be seen by an authorized psychiatrist within a set period of time. In some states, after a further set period or at the request of the person or their representative, a tribunal hearing is held to determine whether the person should continue to be detained. In states where tribunals are not instituted, there is another form of appeal.
Some Australian states require that the person is a danger to the society or themselves; other states only require that the person be suffering from a mental illness that requires treatment. The Victorian Mental Health Act (1986) specifies in part that:
There are additional qualifications and restrictions but the effect of these provisions is that people who are assessed by doctors as being in need of treatment may be admitted involuntarily without the need of demonstrating a risk of danger. This then overcomes the pressure described above to exaggerate issues of violence to obtain an admission.
In general, once the person is under involuntary commitment, treatment may be instituted without further requirements. Some treatments such as electroconvulsive therapy (ECT) often require further procedures to comply with the law before they may be administered involuntarily.
Community treatment orders can be used in the first instance or after a period of admission to hospital as a voluntary or involuntary patient. With the trend towards deinstitutionalization this is becoming increasingly frequent and hospital admission is restricted to people with severe mental illnesses.
In Germany there is a growing tendency to use the law on legal guardianship, instead of mental health law, to justify involuntary commitment or treatment. The ward's legal guardian decides that he/she must go into mental hospital for treatment, and the police will act on this decision. This is simpler for the government and family members than the formal process for commitment under mental health laws.
In German criminal law a person that was convicted of certain crimes can also be sentenced to be kept in preventive detention; see article on preventive detention.
In Dutch criminal law a convict can be sentenced to involuntary psychiatric treatment in a special institute called a TBS-clinic. TBS is an abbreviation for "Ter Beschikkingstelling," literally meaning "being placed at disposal." Legally, such a sentence is not regarded as punishment like a prison sentence, but as a special measure. In the Netherlands, it is common practice to sentence criminals to a combination of a normal prison term and TBS. The convict will then be placed in a TBS-clinic after serving time in prison (usually two-thirds of the original prison sentence, although this practice is under discussion).
According to Dutch law, meeting three conditions is required for a convict to be sentenced to TBS. These conditions are:
To determine if these conditions are met, the suspect is observed in a forensic psychiatric detention center, the Pieter Baan Centre.[9] Neither the prosecution or the defense can effectively challenge the Pieter Baan Centre's report, since it is the only institution that can conduct such investigations. Fatal mistakes have occurred, for instance, when a child molester regarded by the Pieter Baan Center as "not dangerous" killed a child upon release. The conclusions in the centre's report are not binding, the judge can decide to ignore, or only partially accept them.
Every convict detained in a TBS-clinic may get temporary leave, after serving a certain time or after some progress in treatment. This is regarded as an essential part of treatment, as the convict will be gradually re-entering society this way. At first the convict will be escorted by a therapist, and will be allowed outside the clinic for only a few hours. After evaluation, time and freedom of movement will be expanded until the convict can move freely outside the clinic without escort (usually for one day at a time). At that time, the convict will find work or follow an education. Generally, the convict is released after being in this situation for one or two years without incident.
The time to be served in TBS can be indefinite, and it may be used as a form of preventive detention. Evaluation by the court will occur every one or two years. During these evaluations the court determines if any progress is made in treatment of the convict, and if it will be safe to release the convict into society. In general, the court will follow conclusions made by the TBS-clinic.
Average time served in a TBS-clinic by a convict is slightly over eight years.
In the Netherlands there are currently 12 institutions regarded as TBS-clinics:
These institutions combined currently are holding about 1840 convicts.
By the end of the 20th century, it was concluded that some convicts could not be treated and therefore could not be safely released into society. For these convicts, TBS-clinics formed special wards, called "long-stay wards". Transfer to such a ward means that the convict will no longer be actively treated, but merely detained. This is regarded as more cost-effective. In general, the convicts in these wards will be incarcerated for the rest of their lives, although their detention is eligible for regular review by the court.
Since the latter half of the 1990s considerable controversy has grown among Dutch society, about the TBS-system. This controversy has two main reasons. The first reason is the media increasingly reported cases of convicts committing crimes while still in, or after, treatment in a TBS-clinic.
Some examples of these cases are:
Political and social commotion increased, and debate started about the effectiveness of the TBS-system and if convicts should be granted leave from TBS-clinics. Especially right-wing politicians pleaded the TBS-system should be discarded altogether. Numerous articles in newspapers, magazines, television and radio programs and a revealing book written by an ex-convict (which for the first time openly questioned the effectiveness of the TBS-system) boosted discussion. Prior to that, any problems had been mostly denied by TBS-clinics themselves.
The center of attention became a highly renowned TBS-clinic, Dr. S. Van Mesdagkliniek in the city of Groningen. Events that took place there, by the end of the 1990s and the first years of the 21st century, initiated the second reason for controversy. Concern rose about signs of unprofessional behavior by staff working in TBS-clinics, and the Dr. S. Van Mesdagkliniek proved to be among the most infamous for these problems. This TBS-clinic has been plagued with unprofessional and even criminal acts by its staff since 1999. During that year, the Dr. S. Van Mesdagkliniek came under investigation by Dutch police after rumors about female staffmembers committing sexual offenses against convicts.[10] Five such cases were discovered during the investigation, and also numerous cases of drug-abuse, smuggling and trading of contraband such as: alcohol, mobile phones, pornographic material and hard drugs.[11] It became apparent that staff members did not have the required education, had not been informed about rules and regulations, disregarded legal procedures, gave false testimonies, tampered with evidence, uttered false accusations against convicts, and intimidated colleagues.[10] At least one psychiatrist, employed as such by the Dr. S. Van Mesdagkliniek, proved to be not qualified,[12] and treatment of convicts was in many cases simply non-existent.[13] These problems had been known for long by the management, but were always kept hidden. After public outcry about this situation, management was replaced[14] and all of the nine (at the time) TBS-clinics in the Netherlands were subjected to investigation. Six of them proved to be below the required legal standards.[15] However, problems for the expensive Dutch TBS-system did not end there. In spite of many measures taken by the government, convicts still were released without proper treatment. As a consequence, numerous crimes were committed by convicts that were regarded as treated by TBS-clinics. Also, sexual offenses against convicts by staff members and smuggling of contraband did not cease in several TBS-clinics.[16] In 2006, the Dutch government formed a committee to investigate the TBS-system. Some, however not the worst, problems were recognized and measures were proclaimed. One of the known actual results is that fewer convicts escape during temporary release.
Controversy regarding the, often praised, Dutch TBS-system does not cease to exist. In 2005, a staff member working in the Dr. S. Van Mesdagkliniek was caught while smuggling liquor to convicts suffering from alcohol-related problems.[17] In 2007, a female staff member committed sexual offenses against a convict, and had smuggled contraband.[18] She was sentenced to three months in prison in 2009. That same year, investigation proved convicts still had ample access to illicit drugs[19] and four inmates from the Dr. S. Van Mesdagkliniek were arrested for possession of child pornography.[20] Many crimes committed by released convicts treated in TBS-clinics, escape statistics because they occurred in other countries, or because they differ from the crime the convict was originally convicted for (many convicts released from TBS-clinics find their way in illegal drug trade and related crimes). Because there seems to be no acceptable alternative available, political support for the much plagued TBS-system remains, in spite of controversy.
In the United Kingdom, the process known in the United States as involuntary commitment is informally known as "sectioning", after the various sections of the Mental Health Act 1983 (covering England and Wales), the Mental Health (Northern Ireland) Order 1986 and the Mental Health (Care and Treatment) (Scotland) Act 2003 that provide its legal basis.
In England and Wales, Approved Mental Health Professionals have a lead role in coordinating Mental Health Act assessments, which they conduct in cooperation with usually two medical practitioners. Under the Mental Health Act, detention is determined by utility and purpose. Mentally ill individuals may be detained under Section 2 for a period of assessment lasting up to 28 days or Section 3 for a period of treatment lasting up to 6 months. Patients already on a ward may be detained under section 5(2) for up to 72 hours for the purposes of allowing an assessment to take place for section 2 or 3. Separate sections deal with mentally ill criminal offenders. In all cases detention needs to be justified on the basis that the person has a mental disorder and poses a risk of harm to their own health, safety, or the safety of others.[21]
Under the amended Mental Health Act 2007, which came into force in November 2008, to be detained under Section 3 for treatment, appropriate treatment must be available in the place of detention. Supervised Community Treatment orders means people can be discharged to the community on a conditional basis, remaining liable to recall to hospital if they break the conditions of the community treatment order.
Involuntary commitment is governed by state law and procedures vary from state to state. In some jurisdictions, laws regarding the commitment of juveniles may vary, with what is the de facto involuntary commitment of a juvenile perhaps de jure defined as "voluntary" if his parents agree, though he may still have a right to protest and attempt to get released. However, there is a body of case law governing the civil commitment of individuals under the Fourteenth Amendment through U.S. Supreme Court rulings beginning with Addington v. Texas in 1979 which set the bar for involuntary commitment for treatment by raising the burden of proof required to commit persons from the usual civil burden of proof of "preponderance of the evidence" to the higher standard of "clear and convincing" evidence.[22]
In 1975, the U.S. Supreme Court ruled that involuntary hospitalization and/or treatment violates an individual's civil rights in O'Connor v. Donaldson. This ruling forced individual states to change their statutes. For example, the individual must be exhibiting behavior that is a danger to himself or others in order to be held, the hold must be for evaluation only and a court order must be received for more than very short term treatment or hospitalization (typically no longer than 72 hours). This ruling has severely limited involuntary treatment and hospitalization in the U.S.[23] In the U.S. the specifics of the relevant statutes vary from state to state.[24]
This was the case in a famous United States Supreme Court decision in 1975, O'Connor v. Donaldson, when Kenneth Donaldson, a patient committed to Florida State Hospital, sued the hospital and staff for confining him for 15 years against his will. The decision means that it is unconstitutional to commit for treatment a person who is not imminently a danger to himself or others and is capable to a minimal degree of surviving on his own.[25]
An example of involuntary commitment procedures is the Baker Act used in Florida. Under this law, a person may be committed only if they present a danger to themselves or others. A police officer, doctor, nurse or licensed mental health professional may initiate an involuntary examination that lasts for up to 72 hours. Within this time, two psychiatrists may ask a judge to extend the commitment and order involuntary treatment. The Baker Act also requires that all commitment orders be reviewed every six months in addition to ensuring certain rights to the committed including the right to contact outsiders. Also, a person under an involuntary commitment order has a right to counsel and a right to have the state provide a public defender if they cannot afford a lawyer. While the Florida law allows police to initiate the examination, it is the recommendations of two psychiatrists that guide the decisions of the court.
In the 1990s, involuntary commitment laws were extended under various state laws commonly recognized under the umbrella term SVP laws to hold some convicted sex offenders in psychiatric facilities after their prison terms were completed.[26] (This is generally referred to as "civil commitment," not "involuntary commitment," since involuntary commitment can be criminal or civil). This matter has been the subject of a number of cases before the Supreme Court, most notably Kansas v. Hendricks and United States v. Comstock[27] in regard to the Adam Walsh Child Protection and Safety Act, which does not require a conviction on sex offences, but only that the person be in federal custody and be deemed a "sexually dangerous person".[28]
The impact of involuntary commitment on the right of self-determination has been a cause of concern.[29] Critics of involuntary commitment have advocated that "the due process protections... provided to criminal defendants" be extended to them.[30] The Libertarian Party opposes the practice in its platform. Thomas Szasz and the anti-psychiatry movement has also been prominent in challenging involuntary commitment.
A small number of individuals in the U.S. have opposed involuntary commitment in those cases in which the diagnosis forming the justification for the involuntary commitment rests, or the individuals say it rests, on the speech or writings of the person committed, saying that to deprive him of liberty based in whole or part on such speech and writings violates the First Amendment. Other individuals have opposed involuntary commitment on the bases that they claim (despite the amendment generally being held to apply only to criminal cases) it violates the Fifth Amendment in a number of ways, particularly its privilege against self-incrimination, as the psychiatrically examined individual may not be free to remain silent, and such silence may actually be used as "proof" of his "mental illness".[31]
Although patients involuntarily committed theoretically have a legal right to refuse treatment, refusal to take medications or participate in other treatments is noted by hospital staff. Court reviews usually are heavily weighted toward the hospital staff, with the patient input during such hearings minimal. In Kansas v. Hendricks, the US Supreme Court found that civil commitment is constitutional regardless of whether any treatment is provided.[32]
Accompanying deinstitutionalization was the development of laws expanding the power of courts to order people to take psychiatric medication on an outpatient basis. Though the practice had occasionally occurred earlier, outpatient commitment was used for many people who would otherwise have been involuntarily committed. The court orders often specified that a person who violated the court order and refused to take the medication would be subject to involuntary commitment.
Involuntary commitment is distinguished from conservatorship and guardianship. The intent of conservatorship or guardianship is to protect those not mentally able to handle their affairs from the effects of their bad decisions, particularly with respect to financial dealings.[33] For example, a conservatorship might be used to take control of the finances of a person with dementia, so that the person's assets and income are used to meet his basic needs, e.g., by paying rent and utility bills.
Advance psychiatric directives may have a bearing on involuntary commitment.[34][35]
The service member can be held under the so-called Boxer law.
5150 (Involuntary psychiatric hold)
In the District of Columbia any police officer, physician, or mental health professional can request to have you evaluated at St. Elizabeths Hospital, where the physician on duty can hold the patient for up to 48 hours. A family member or concerned citizen can also petition the Department of Mental Health, but the claim will be evaluated prior to the police acting upon it. In order to be held further, a request must be filed with the Department of Mental Health. However, this only can keep the patient involuntary admitted for up to seven days. For further commitment, the patient is evaluated by a mental health court, part of family court, for which the public defender assists the patient. This can result in the patient being held up to one year at which point the patient returns to mental health court.
This is different for someone first admitted to St. Elizabeths Hospital due to criminal charges. If found to not ever become competent for trial, they will be evaluated via a Jackson hearing for possible continued commitment to protect the public. If they have been found not guilty by reason of insanity, their dangerousness is evaluated at a Bolton Hearing.
In Maryland any person may request, via a Emergency Evaluation form, that another individual be evaluated against their will by an emergency room physician for involuntary admission. If the judge concurs, he will direct the police to escort the individual to the hospital. A licensed physician, psychologist, social worker, or nurse practitioner who has examined the patient or a police officer may bring a potential patient to the emergency room for forced evaluation without approval from a judge. The patient may be kept in the hospital for up to thirty hours. If by then two physicians, or one physician and one psychologist then decide that the patient meets the Maryland criteria for an involuntary psychiatric admission, then he or she may be kept inpatient involuntarily for up to ten days. During this time an administrative law judge determines if criteria for longer civil commitment are met:
As of 2008 Virginia was one of only five states requiring imminent danger in order to involuntarily commit someone. But after the Virginia Tech Massacre, there was significant political consensus to strengthen the protections for society and allow more leniency in determining that an individual needed to be committed against their will.
"Imminent danger" was found to have too much variability throughout Virginia due to vagueness. The new standard is more specific in that substantial likelihood is more clear. However, in order to not limit potential detainee's freedoms too much it is characterized by the time limit of near future. "Recent acts" is legally established to require more than a mere recitation of past events.
The Mental Health (Care and Treatment) Act was passed in 2008 to regulate the involuntary detention of a person in a psychiatric institution for the treatment of a mental disorder, or in the interest of the health and safety of the person or the persons around him.
At certain places and times, the practice of involuntary commitment has been used for the suppression of dissent, or in a punitive way.
In the former Soviet Union, psychiatric hospitals were used as prisons in order to isolate political prisoners from the rest of society. The official explanation was that no sane person would declaim against Soviet government and Communism. British playwright Tom Stoppard wrote Every Good Boy Deserves Favour about the relationship between a patient and his doctor in one of these hospitals.
The government of the United States employed involuntary commitment against a political dissenter once. In 1927 after the execution of Sacco and Vanzetti a demonstrator named Aurora D'Angelo was sent to a mental health facility for psychiatric evaluation after she participated in a rally in support of the anarchists.[36]