On Being Sane in Insane Places

Involuntary commitment

Involuntary commitment is the practice of using legal means or forms as part of a mental health law to commit a person to a mental hospital, insane asylum or psychiatric ward against their will and/or over their protests.

Many countries have mental health laws governing involuntary commitment. Some, such as the United States, require a court hearing if the individual is hospitalized more than briefly. In most states, police officers and designated mental health professionals can require a brief commitment of an individual for psychiatric evaluation. If the individual is evaluated as needing further hospitalization, a court order must be obtained. Doctors, psychologists and/or psychiatrists present written reports to the court and in some cases testify before the judge. The person who is involuntarily hospitalized, in most U.S. jurisdictions, has access to counsel. A commitment is always time-limited and requires reevaluation at fixed intervals. It is also possible for a patient to challenge the commitment through habeas corpus. 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.

Some individuals and groups have challenged involuntary commitment, particularly in countries that are part of the Anglo-American judicial tradition. There have also been allegations that at certain places and times the practice of involuntary commitment has been used for the suppression of dissent, or in a punitive way. There have been alternating trends towards the aboliton or substantial reduction of involuntary commitment via stricter standards for its imposition, and the greater use of involuntary commitment with more lax standards for its imposition.

In 1975, the United States Supreme Court ruled that involuntary hospitalization and/or treatment violates an individual's civil rights. 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 United States. In the United States the specifics of the relevant statutes vary from state to state. For example, in Florida, statistics show that 20 percent of the justifiable homicides committed by police in the United States occurred in Florida with the mentally ill being four times more likely to be the victim.

Purposes of involuntary commitment

Involuntary commitment has been used for a variety of purposes over the years and in different jurisdictions. There has been considerable debate about these purposes and this has been a factor in leading to the various laws. A number of individuals and groups remain strongly opposed to either all these laws, some of these laws, or some aspects of their application.

In most jurisdictions involuntary commitment is specifically directed at people claimed or found to be suffering from a mental illness which 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.") This decision requires a subjective opinion and is therefore open to error or abuse, both of which have been documented as occurring at different times in various places. There have been numerous official enquiries into such matters around the world and these have often led to legal and system reforms, but there have also been allegations that the requirements for involuntary commitment are "too lenient," with a consequential strengthening of such laws.

Involuntary commitment is used to some degree for each of the following headings although different jurisdictions have different criteria. Some allow involuntary commitment only if the person both appears to be suffering from a mental illness and that the effects of this produce a risk to themselves or others. Other jurisdictions have criteria that are broader.

Observation

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 and so sometimes people are admitted for a period to observe their behavior. This period of observation can be helpful in determining the actual diagnosis but can tend to produce an expectation of disease which can alter the perceptions and behavior of the staff. David Rosenhan's paper, "On being sane in insane places",¹ demonstrated a variety of problems. In this study a number of volunteers mimicked illnesses to obtain admission to hospital and then subsequently behaved normally. The staff continued to perceive that they were exhibiting signs of the illness diagnosed on admission and treated them as such. Rosenhan's results were criticized by psychiatrist Robert Spitzer² who argued that given the initial "symptoms" presented that the mindset of the staff was not only understandable but that it did not invalidate an ability to diagnose conditions as Rosenhan had claimed. Rosenhan's experiment remains a cautionary tale that informs the teaching of trainee psychiatrists.

Containment of danger

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 personality disorders are occasionally violent and can be a danger to the disabled patients as well as the elderly.

This concern has found expression in the standards for involuntary commitment of a number of jurisdictions in the U.S. and other countries as the "danger to self or others" standard if someone has a "mental illness" or "mental disorder" (though sometimes explicit exceptions are made, as in Arizona law, in which "drug abuse, alcoholism or mental retardation" and "the declining mental abilities that directly accompany impending death" are specifically excepted), sometimes supplemented by the requirement that the danger be "imminent". However, it has come under criticism from two directions. Those who are concerned that the "danger to self or others" standard is too narrow and will not permit the commitment of those for whom it is necessary have occasionally advocated that it be replaced by the "gravely disabled" standard. There are others who are concerned that the "danger to self or others" standard is vague and not precisely defined, which could lead to abuse of involuntary commitment. However, some people find that the increasingly narrow definition of "danger to self or others" provided by statute and court rulings have to some degree mitigated these concerns.

Some of the same people who are concerned about the overbreadth of the "danger to self or others" standard are more concerned about the "gravely disabled" standard, as they find it broader still. The First District Court of Appeal in California, however, held in Conservatorship of Chambers (1977) (71 Cal.App.3d 277, 139 Cal.Rptr. 357), that the standard was not unconstitutional due to overbreadth or vagueness, and excluded commitment of people whose lifestyles were simply eccentric or unusual. In Wetherhorn v. Alaska Psychiatric Institute (2007), the Supreme Court of the State of Alaska found that a person could not be involuntarily committed under the statute unless his "level of incapacity [is] so substantial that the respondent is incapable of surviving safely in freedom." In In re Maricopa County, (Ariz. Ct. App. 1992, 840 P.2d 1042), the court held that "persistently or acutely disabled" was not an unconstitutionally vague standard.

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 criticised 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 and this disagreement might form part of the evidence to support one's involuntary commitment.

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.

Treatment of illness

It has been established through O'Connor v. Donaldson that an individual cannot be involuntarily committed unless he is a danger to himself or others and that while committed, he must receive appropriate treatment. The case of Rennie v. Klein established that an involuntarily committed individual has a qualified constitutional right to refuse psychotropic medication.

Community treatment as an alternative

There have been some criticisms of the efficacy or appropriateness of inpatient treatment. For example, the "Pan American Health Organization (PAHO) Caracas Declaration of 1990 [...] identified inpatient psychiatric treatment as isolating individuals from the community and thus as an obstacle to recovery. Community treatment is now generally accepted as an alternative.

Deinstitutionalization

(See also Deinstitutionalization)

Starting in the 1960s, there has been a worldwide movement toward deinstitutionalization of patients from psychiatric hospitals into community care centers, and this has been matched with efforts at reform of involuntary commitment laws. (In the US from the 1970s onwards a relatively small number of ex-mental patients and former "consumers of psychiatric services" have promoted what they call "mad liberation," often calling for the abolition of involuntary commitment.)

In the US in the 1980s there was a return back to institutionalization and less stringent commitment laws. However, Michael L. Perlin has claimed that throughout this entire period psychiatrists have frequently and as a practice committed perjury during commitment hearings in order to make it more likely that a patient they believe would benefit from commitment will be committed. E. Fuller Torrey, a prominent proponent of involuntary commitment, has stated:

It would probably be difficult to find any American psychiatrist working with the mentally ill who has not, at a minimum, exaggerated the dangerousness of a mentally ill person's behavior to obtain a judicial order for commitment [...]. Thus, ignoring the law, exaggerating symptoms, and outright lying by families to get care for those who need it are important reasons the mental illness system is not even worse than it is.

Torrey also quotes psychiatrist Paul Applebaum as saying when "confronted with psychotic persons who might well benefit from treatment and who would certainly suffer without it, mental health professionals and judges alike were reluctant to comply with the law," noting that in "'the dominance of the commonsense model, the laws are sometimes simply disregarded."⁴

The general trend worldwide remains one of closing large mental hospitals, increasing the integration of psychiatric treatment into general hospitals and of increasing community care at times using involuntary community treatment where in the past involuntary admission would have been used.

United Nations

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.

United States

Involuntary commitment is governed by state law and procedures vary from state to state. Involuntary commitment is typically used against people diagnosed with, or alleged to have, a mental illness, particularly schizophrenia. 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 s/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.

An example of involuntary commitment procedures is the Baker Act used in Florida. Under this law, a person may be committed only if he or she presents a danger to himself 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 insuring 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.

Controversy

The United States Secret Service has acknowledged obtaining involuntary psychiatric hospitalizations of those it believes to be a danger to protectees, without any claim that these "dangerous" individuals are "mentally ill". The possible impact of involuntary commitment on the right of self-determination has been a cause of concern. Critics of involuntary commitment have advocated that "the due process protections... provided to criminal defendants" be extended to them; Lawrence Stevens, an attorney, has more specifically argued that involuntary commitment is a violation of substantive due process under the United States Constitution (see link at end of article). Fred Foldvary has proposed that since judges will not follow the Constitution and continue to subject individuals to involuntary commitment — this is based on the theory that involuntary commitment is unconstitutional — Constitutional amendments should be made depriving judges of the ability to involuntarily commit. Most believers in the theory of reality enforcement also oppose it, and 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 United States 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". This criticism has motivated the creation, in some jurisdictions, of a similar statutory privilege in this context. There have also been claims that conditions in, or "treatments" commonly performed in, mental hospitals to which individuals are involuntarily committed constitute torture, or are prohibited by the Convention Against Torture.

Use with criminals

In the 1990s a novel and extremely controversial use of involuntary commitment laws known as "Mentally Abnormal Sexually Violent Predator" laws were enacted in order to hold sex offenders after their terms have expired. (This is generally referred to as "civil commitment," not "involuntary commitment," since involuntary commitment can be criminal or civil). Supporters claim that this is a valid use of involuntary commitment laws, while opponents claim that this is a potentially extremely dangerous way of bypassing the safeguards in the criminal justice system. This matter has been the subject of a number of cases before the Supreme Court, most notably Kansas v. Hendricks.

Community based treatment

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.

Conservatorship

Involuntary commitment is distinguished from conservatorship, which was used by deprogrammers as a legal means to hold alleged cult victims against their will while talking them out of their faith. In hundreds of cases documented by attorney Jeremiah Gutman, deprogrammers were able to obtain conservatorship orders without having to bring the subject of the order before a judge. Conservatorships have also been used to separate elderly people from their property, ostensibly on the grounds that they are not competent to manage it. The intent of conservatorship or guardianship is to protect the insane, the mentally defective and those under undue influence, such as drug addicts, from the effects of their bad decisions. However, this well intended legal process has been abused by unscrupulous persons and has been revised by the California state legislature in response to exposure of its faults in a series published by the Los Angeles Times.

Advance psychiatric directives

Advance psychiatric directives may have a bearing on involuntary commitment.

Australia

Australia is used as an example of a country where 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.

Mechanisms

The usual requirement is that a police officer or a doctor may determine that a person requires a psychiatric examination and may convey them, or have them conveyed to a psychiatric hospital for that purpose. Once at the hospital a doctor, usually a trainee psychiatrist, will either endorse this or order their release. If the person is detained in the hospital then they usually must be seen by an authorised psychiatist 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.

Allowed reasons

Some 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 act specifies in part that:

"(1) A person may be admitted to and detained in an approved mental health service as an involuntary patient in accordance with the procedures specified in this Act only if—

(a) the person appears to be mentally ill; and

(b) the person's mental illness requires immediate treatment and that treatment can be obtained by admission to and detention in an approved mental health service; and

(c) because of the person's mental illness, the person should be admitted and detained for treatment as an involuntary patient for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and

(d) the person has refused or is unable to consent to the necessary treatment for the mental illness; and

(e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of that person's freedom of decision and action.

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.

Treatment

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

These 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.

United Kingdom

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.

Germany

In Germany, to do Involuntary commitment and Involuntary treatment to a person, there is a tendency more and more to use the Legal guardianship law instead of the Mental health law: The Legal Guardian decides that he/she must go into Mental Hospital and be treated against his/her will, and the police will carry out this decision.

This is easier for the police, the municipal offices or the persons who want that he/she against his/her will goes into psychiatry, because a person in psychiatry based on Mental health law has some rights, while a person under Legal guardianship de facto has not.

Lawyers in this country also have, according to "Werner Fuss Zentrum", the tendency to abuse the Legal guardianship law for other purposes .

Totalitarian countries

In totalitarian countries psychiatric imprisonment refers to the involuntary imprisonment of people in a psychiatric institution on the grounds that they are considered insane. People behaving in such a way considered insane by a judge can be put into a mental institution without trial. It is part of both the criminal justice and hospital systems in the totalitarian countries in which it happens, and it often has an ambiguous relationship to these.

Activities such as homosexuality and adultery can result in such imprisonment. In the People's Republic of China such facilities are used to imprison and "treat" dissidents. "Political harm to society" is legally a dangerous mental disorder and the authorities are instructed to arrest those who make anti-government speeches, write reactionary letters or express opinions on domestic and international affairs.

In the former Soviet Union

In the Soviet Union, psychiatric hospitals were often used as prisons in order to isolate political prisoners from the rest of society, discredit their ideas, and break them physically and mentally. The official explanation was that no sane person would declaim against Soviet government and communism.

Involuntary commitment in popular culture

The television series Conviction has shown hearings related to involuntary commitment. Ken Kesey's 1962 novel One Flew Over the Cuckoo's Nest is a depiction of institutional process in an Oregon asylum, and includes a number of patients under involuntary commitment.

In the UK sitcom Peep Show's third series, the second episode features a scene where, after sectioning their friend Merry, Jeremy, Super Hans and Mark unsuccessfully attempt to get each other sectioned.

References

Atkinson, J. (2006) Private and Public Protection: Civil Mental Health Legislation, Edinburgh, Dunedin Academic Press

¹ Rosenhan, D.L. (1973). On being sane in insane places. Science, 179, 250-258.

² Spitzer, R.L. (1975). On pseudoscience in science, logic in remission, and psychiatric diagnosis: A critique of Rosenhan's "On being sane in insane places." Journal of Abnormal Psychology, 84, 442-452.

³ Perlin, M.L. (1993/1994). The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone? Journal of Law and Health,, 8 JLHEALTH 15, 33-34.

⁴ Torrey, E. Fuller. (1997). Out of the Shadows: Confronting America's Mental Illness Crisis. New York: John Wiley and Sons.

Black Hands of Beijing: Lives of Defiance in China's Democracy Movement, by George Black and Robin Munro, New York: John Wiley & Sons, Inc., 1993.