Should States be So Committed to Involuntary Psychological Commitments?
Approximately two million Americans who suffer from substance abuse or psychiatric problems are admitted to hospitals each year. Critically, half of these patients are committed involuntarily by the state and their families rather than voluntarily [1]. Individuals are typically placed in emergency holds as physicians and courts have a maximum of three days to determine whether they need to be hospitalized for a longer period of time. The intention is to provide necessary mental health treatment, as many lack the agency to admit themselves due to logistical barriers, stigma, or unawareness. Hence, all fifty states and the District of Columbia have passed laws allowing emergency holds and involuntary commitment, however, state laws vary in terms of duration, the involvement and responsibilities of different law enforcement officers, and patients’ legal rights. These variations are disturbing as 28 states do not require a judge to certify emergency holds and 41 states do not require hospitalization. In fact, five states do not even guarantee assessment by a mental health professional during the emergency hold process, meaning individuals can be forcibly hospitalized without the opinion of a licensed doctor [2]. Legislators formulated each step of involuntary civil commitment — evaluation, hospitalization, and release — with good intentions, however, the execution of these laws has been detrimental to addressing the national mental health crisis.
Starting from the beginning, there is legal and ethical uncertainty surrounding the initiation of emergency holds regarding the scope of application, responsible personnel, and standard of proof. Not only are the relevant laws inconsistent across states, but they are at best subjective within states. These state laws only become more convoluted with the fact that there are no overarching federal codes, but federal precedents that states must consider. One of the most important is O’Connor v. Donaldson (1975). Kenneth Donaldson was committed as a mental patient against his will by a county judge. After 15 years in a hospital in Florida, he sued the hospital director for “intentionally and maliciously” depriving him of his civil rights. The case reached the Supreme Court, and the Justices concurred that “a State cannot constitutionally confine…a non dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends” [3]. There are three major concerns with states’ abilities to abide by this ruling. First, states have come up with preposterous interpretations of one’s capability to survive safely on their own. The Substance Abuse and Mental Health Services Administration finds that many states do not have a requirement of an individual being dangerous, a prediction of danger, nor an imminent risk of violent behavior [4]. For instance, Iowa merely asks that an individual is likely to cause emotional damage to others [5]. Furthermore, five others allow individuals who attempted suicide but no longer express suicidal ideation to be held [6]. These laws rationally violate the Court’s order that those who are presently able to be nonviolent and self-sufficient have the right to consent to or reject treatment. Finally, the subjective definition of danger catalyzes discrimination. The ACLU cautions that Black men are more likely to be perceived as a threat to others, committed against their will, diagnosed with more severe illnesses, restrained, and confined for longer durations [7]. Beyond the issue of legality, those with mental health issues may also become more adverse to seeking help, in fear that their past will cost them their current independence, rendering involuntary commitments counterproductive. Ultimately, this provides officials with immense leeway and justification for arbitrary, unnecessary, and traumatic holds. This leads to the second controversy of emergency detainments — who is permitted to initiate them.
Inconsistent combinations of mental health professionals, law enforcement officers, and other citizens are permitted to initiate holds, however, they should not be considered equally qualified under the law. According to data compiled by the Policy Surveillance Program, 17 states allow police officers to initiate emergency holds, which raise the level of fear and aggression, as well as reduce communication during mental health crises [8]. For example, in Florida, which has the highest rate of emergency detentions at 966 per 100,000 persons, police officers may detain both adults and minors for mental health evaluations [9]. State data shows that 60% of cases for those under the age of 18 were initiated by police, occurring more than one hundred times daily [10]. Thousands of these children are intercepted at school or home and brought to facilities. Their guardians are not informed or banned from visiting their children, causing undue trauma to families [11]. Likewise, police officers in the US carry lethal weapons which unfortunately lead to lethal injuries. In already highly stressful situations, the presence of law enforcement officers only compounds the amount of anxiety and prevents an accurate evaluation of individuals’ mental stability. Other states also give authority to parole officers, relatives, friends, and attorneys to initiate commitment [12]. The commonality among these groups is their lack of professional medical training. The Department of Justice reports that their crisis intervention training is a “40-hour curriculum taught over five consecutive days” [13]. It is unlikely that police officers or ordinary individuals are able to master in a week what psychiatrists and trained mental health practitioners spend their entire careers learning. This is precisely why in times of high stakes and stress, such as a mental health crisis, incorrect judgments are made about the mental state of individuals, how to properly de-escalate, and simultaneously ensure their rights guaranteed by the Constitution are respected.
The final legal caveat in the process of involuntary emergency holds is the standard of proof, which is concerningly low for a process with such high stakes. The law currently asks for a preponderance of evidence in accordance with Addington v. Texas (1979). Frank O'Neal Addington’s mother had filed for his indefinite commitment to treat a mental illness, which the state trial court approved. Addington appealed on the grounds that there should be beyond reasonable doubt that his mental illness required hospitalization against his will. The Supreme Court concluded that “because psychiatry was a field dealing with the inexact science of predicting future risk, the standard of beyond a reasonable doubt was so burdensome that it would serve as a barrier to the hospitalization of many patients who were in clear need of care” [14]. They decided that a preponderance of evidence — a lower threshold — is all that is needed. Notably, beyond reasonable doubt is usually employed for criminal cases, where there is potential for the defendant to be sentenced to jail and for their civil liberties to be taken away by the state. On the other hand, a preponderance of evidence is typically used in civil cases, where the gravest consequence is monetary. The rational equivalence for involuntary hospitalization would be imprisonment as both involve the deprivation of agency, yet the standard for evidence is significantly lower. In conclusion, there must be higher thresholds that need to be met in terms of the content and quantity of proof to admit a mental health patient against their will. When any of the three are not met, the civil liberties of many have been and will continue to be violated.
Patients’ rights are again guaranteed in law but not in practice in the step of hospitalization because of a lack of resources and facilities. During the emergency hold, mental health professionals are responsible for evaluating patients’ mental states and petitioning for their admittance to hospitals. Unfortunately, there is a shortage of hospitals, beds, and psychologists to treat all those who need it. Following various social movements against asylums and the introduction of psychiatric medications, including antipsychotics, mood stabilizers, and antidepressants, the number of beds in psychiatric hospitals was reduced by over 90% between 1995 and 2005, in order to shift toward systems of community-based services [15]. While the government and public have advocated for and created some of these services, supply has far outpaced demand. Even psychiatric hospitals that currently operate are understaffed to treat patients with the most severe and complex illnesses. Hospitals in the Seattle region reject 25% of patients experiencing mental crises on the basis that they present too many symptoms of or have a history of aggression or developmental disabilities [16]. Thus, when courts order the admittance of individuals for mental health treatment and they are unable to find available spots for them at hospitals, there are two frequent outcomes. First, many patients find themselves in correctional, rather than medical facilities. The National Alliance on Mental Illness concurs that the largest centers for treating mental health are in fact Los Angeles County Jail, Cook County Jail, and Rikers’s Island Jail [17]. Those with mental illnesses are thus enveloped in a system of mass trans-institutionalization, where the line between mentally ill and criminal is blurred. Patients are stigmatized, neglected, and more likely to become incarcerated after being released. The second possibility is that patients will be left in emergency rooms without being officially admitted or given a room for longer than lawfully permitted [18]. In Massachusetts General Hospital v. C.R. (2020), police brought a woman undergoing a mental crisis to a hospital that detained her for five days and did not file a petition to have her committed until the sixth day. These timeframes exceed the three days permitted under Massachusetts state law for mental evaluations to be conducted. The Supreme Judicial Court recognized that “the time for application to and acceptance by an authorized facility has extended well beyond original expectations, particularly for the most vulnerable patients” and especially an “unexpected enlargement of time spent in EDs [emergency departments]” [19[]. However, the Supreme Judicial Court voted in favor of the hospital, declining to consider questions of constitutionality because they were “premature” [20]. Then Chief Justice Ralph Gantz articulates the issue of holding patients in emergency departments with undefined time limits, “if the person is brought to a psychiatric hospital right away, they have right to counsel, appointed counsel, an emergency hearing. In the ER, there's none of that” [21]. It does not matter whether there are legal statutes to provide and protect procedural rights if they are not applied ubiquitously.
Another concern of civil commitment is whether forcing the responsibility of costs incurred during hospitalization on the patient violates their right to consent to contracts. Surprise medical bills have long been a topic of conversation as patients who lose consciousness and experience other emergencies cannot consent to treatment. While both those with physical and mental crises are not afforded the opportunity to provide consent, the difference is that civilly committed patients may be treated despite active refusal. Doctors can be held legally liable for ignoring Do Not Resuscitate orders, which people may sign if their wishes are for medics to not perform life-saving procedures in case their heart or lungs stop functioning. Conversely, mental health patients cannot preemptively nor presently reject treatment. Thus, scholars have questioned if placing this financial burden is an infringement on one’s rights to consent to contracts [22]. Medical costs of commitment are not negligible sums as the cost of psychiatric treatments generally ranges between $3,616 and $8,509 [23]. Ten percent of these treatments are paid in full by individuals or were never paid for because individuals did not have the means, which is not surprising considering 63% of Americans who are working could not afford a $500 emergency expense [24]. Individuals with mental health concerns are far more likely to be included in the lower income brackets as symptoms of mental illness have long been associated with decreases in employment and earnings. For example, a study finds that depression reduces employment by 10% and an employee’s income by up to 27% [25]. The authors explain that employers may discriminate as a result of stigma; mental illnesses can cause physical consequences, insomnia, fatigue, and more, inhibiting productivity; and weak expectations about the future limit one’s desire to network, apply to new jobs, or seek promotions. There is thus reason to believe that these patients truly wish to refuse treatment and any situation that causes a debt of thousands of dollars. Problematically, they are not granted any legal alternative or ability to opt out of paying back debt for years, hurting their credit score, and further burden on one’s mental health.
It is imperative to acknowledge that there are positive examples of and benefits to civil commitments, but there are better alternatives that should be pursued. The United States has one of the highest prevalences of mental illnesses and the worst number of related outcomes [26]. These statistics indicate that there are legal and social obligations that warrant states to protect individuals, their families, and the broader community. Proponents of involuntary psychological hospitalizations have voiced that overemphasizing individual liberties can actually be harmful if it means at best, continuing without treatment, or at worst, a freedom “indistinguishable from neglect or lack of social support” [27] This is a reality that is compounded by issues of homelessness and lack of available social services. Hence, involuntary hospitalization is considered the least worst option, but this is not necessarily true and certainly not the least invasive. There are many other options that can and should be considered, which range in terms of how realistic their implementation is and deviation from the current model. The simplest is involuntary outpatient commitment, an option that already exists in 46 states and the District of Columbia. Patients do not have to reside at hospitals and can continue with the rest of their lives as they previously did, but they are required to attend medical appointments. A hindrance to this solution, however, is the difficulty in supervising and enforcing treatment. Furthermore, any forced medical care undermines a trusting and genuine relationship between patient and physician. If the patient is being coerced, they are less likely to comply with the doctor and their treatment plan [28]. A second alternative is accelerating the expansion of mental health courts. Judges in mental health courts help individuals with mental illnesses replace incarceration with voluntary mental health treatment. They are required to come in for regularly scheduled hearings to ensure they are keeping up with court orders. Mental health courts can minimize the number of people with mental illnesses that are filtered through the court system for petty crimes such as trespassing, loitering, and public disturbance. Indeed, the Department of Justice estimates that 43% of state and 23% of federal prisoners have experienced a mental health problem at some point in their lives [29]. Participants in mental health courts are 20% less likely to be repeatedly imprisoned and cycled through jails [30]. A third option is to invest time and resources, not just rhetoric, in community services. These could be community centers with mental health professionals to prevent, identify, and treat mental health concerns earlier on. There is unfortunately a lack of political capital to establish these programs.
While legislators established involuntary hospitalization with good motivations, it has been practiced in a perplexing manner. The individuals responsible for detaining and evaluating persons with mental illnesses, and thus those who have the authority to take away peoples’ freedom and autonomy, frequently do not possess the necessary medical licensing and training. This has historically resulted in commitments that do not meet legal standards. Additionally, due to a lack of infrastructural, financial, and personnel resources, patients’ human rights are often violated as they fall through the cracks in the system. This all manifests in ineffective treatment that ultimately causes more harm than benefit to an already vulnerable population. The solution is not to overturn all related state laws, but rather to take a multipronged approach by restructuring legal policies, mental health institutions, community education, and more. It could also be beneficial for federal laws to be drafted that govern involuntary psychological commits at the national level to standardize practices and eliminate problematic anomalies in state policies.
Bibliography
[1] Magoon, Christopher. September 27, 2021. “The cost of forced psychiatric care like Britney Spears got can be ruinous” NPR. Accessed November 2, 2023. https://www.npr.org/sections/health-shots/2021/09/27/1040552033/involuntary-psychiatric-hold-cost-britney-spears
[2] Hedman, Leslie C. et al. February 27, 2016. “State Laws on Emergency Holds for Mental Health Stabilization” Psychiatry Services, 67 no. 5: 525-539. https://ps.psychiatryonline.org/doi/10.1176/appi.ps.201500205
[3] O'Connor v. Donaldson, 422 U.S. 563 (1975)
[4] Civil Commitment and the Mental Health Care Continuum: Historical Trends and Principles for Law and Practice” Substance Abuse and Mental Health Services Administration. 2019. Accessed November 3, 2023. https://www.samhsa.gov/sites/default/files/civil-commitment-continuum-of-care.pdf
[5] Ibid.
[6] Hedman, Leslie C. et al. February 27, 2016. “State Laws on Emergency Holds for Mental Health Stabilization” Psychiatry Services, 67 no. 5: 525-539. Accessed November 3, 2023
[7] ACLU of Washington. October 18, 2022. “Infringement of personal liberty within the civil commitment system” Accessed November 5, 2023. https://www.aclu-wa.org/story/infringement-personal-liberty-within-civil-commitment-system
[8] Petrila, John and Swanson, Jeffrey. February 1, 2016. “Short-Term Emergency Commitment Laws” Policy Surveillance Program Law Atlas Project. Accessed November 3, 2023. https://lawatlas.org/query?dataset=short-term-civil-commitment&id=5445138239fac3b8721dbe51; Jones, Nev et. al. December 16, 2021. “Youths’ and Young Adults’ Experiences of Police Involvement During Initiation of Involuntary Psychiatric Holds and Transport” Psychiatry Services 73 no. 8: 910-917. Accessed November 3, 2023. https://ps.psychiatryonline.org/doi/10.1176/appi.ps.202100263
[9] Lee, Gi and Cohen, David. November 3, 2020. “Incidences of Involuntary Psychiatric Detentions in 25 U.S. States” Psychiatry Services, 72 no. 1: 61-68. Accessed November 3, 2023. https://ps.psychiatryonline.org/doi/10.1176/appi.ps.201900477#:~:text=Between%202011%20and%202018%20across,high%20of%20966%20in%20Florida.
[10] St. George, Donna. March 16, 2023. “In Florida, showing mental health struggles could get a child detained” Washington Post. Accessed November 3, 2023. https://www.washingtonpost.com/education/2023/03/16/florida-law-child-mental-health/
[11] Ibid.
[12] Petrila, John and Swanson, Jeffrey. February 1, 2016. “Short-Term Emergency Commitment Laws” Policy Surveillance Program Law Atlas Project. Accessed November 3, 2023. https://lawatlas.org/query?dataset=short-term-civil-commitment&id=5445138239fac3b8721dbe51
[13] “Training for Police-Mental Health Collaboration Programs” Department of Justice. Accessed November 3, 2023. https://bja.ojp.gov/program/pmhc/training
[14] Addington v. Texas, 441 U.S. 418 (1979)
[15] Duff, Jonathan H. June 26, 2018. “Psychiatric Institutionalization and Deinstitutionalization” Congressional Research Service. Accessed November 4, 2023. https://crsreports.congress.gov/product/pdf/IF/IF10870/4
[16] Jimenez, Esmy. September 5, 2023. “King County mental health facilities still reject a quarter of patients, report shows” The Seattle Times. Accessed November 4, 2023. https://www.seattletimes.com/seattle-news/mental-health/king-county-mental-health-facilities-still-reject-a-quarter-of-patients-report-shows/
[17] Vanable, Joseph. March 24, 2021. “The Cost of Criminalizing Serious Mental Illness” National Alliance on Mental Health. Accessed November 4, 2023. https://www.nami.org/Blogs/NAMI-Blog/March-2021/The-Cost-of-Criminalizing-Serious-Mental-Illness
[18] Becker, Deborah. January 10, 2020. “Can Emergency Rooms Hold Psychiatric Patients Longer Than 3 Days? The Mass. High Court Will Decide” WBUR. Accessed November 4, 2023. https://www.wbur.org/news/2020/01/10/sjc-psychiatric-holds-emergency-rooms
[19] Massachusetts General Hospital v. C.R., 142 N.E. 3d 545 (Mass. 2020)
[20] Ibid.
[21] Becker, Deborah. January 10, 2020. “Can Emergency Rooms Hold Psychiatric Patients Longer Than 3 Days? The Mass. High Court Will Decide” WBUR. Accessed November 4, 2023. https://www.wbur.org/news/2020/01/10/sjc-psychiatric-holds-emergency-rooms
[22] Morris, Nathaniel P. and Kleinman, Robert A. December 1, 2020. “Involuntary Commitments: Billing Patients for Forced Psychiatric Care” American Journal of Psychiatry 177 no. 12: 1115-1116
[23] Vanable, Joseph. March 24, 2021. “The Cost of Criminalizing Serious Mental Illness” National Alliance on Mental Health. Accessed November 4, 2023. https://www.nami.org/Blogs/NAMI-Blog/March-2021/The-Cost-of-Criminalizing-Serious-Mental-Illness
[24] Owens, Pamela L. et. al. March 2019. “Inpatient Stays Involving Mental and Substance Use Disorders, 2016” Agency for Healthcare Research and Quality; Konish, Lorie. August 31, 2023. “63% of workers unable to pay a $500 emergency expense, survey finds. How employers may help change that” CNBC. Accessed November 4, 2023. https://www.cnbc.com/2023/08/31/63percent-of-workers-are-unable-to-pay-a-500-emergency-expense-survey.html
[25] Giuseppe, Germinario et. al. December 2022. “What can we learn about the effect of mental health on labor market outcomes under weak assumptions? Evidence from the NLSY79” Labour Economics no. 79 https://www.sciencedirect.com/science/article/pii/S0927537122001488#
[26] Tikkanen, Roosa et al. May 21, 2020. “Mental Health Conditions and Substance Use: Comparing U.S. Needs and Treatment Capacity with Those in Other High-Income Countries” The Commonwealth Fund. https://www.commonwealthfund.org/publications/issue-briefs/2020/may/mental-health-conditions-substance-use-comparing-us-other-countries#
[27] Hawthorne, Susan and Ilhan, Amy. May 2021. “Rethinking Civil Commitment” Michigan State University. Accessed November 5, 2023. https://pubhub.lib.msu.edu/read/rethinking-civil-commitment
[28] June, 2021. “INVOLUNTARY OUTPATIENT COMMITMENT: A Legal and Policy Analysis” Center for Public Representation, Mental Health Legal Advisors Committee, Disability Law Center, and Committee for Public Counsel Services Mental Health Litigation Division. Accessed November 5, 2023. https://media.wbur.org/wp/2023/03/Invountary-Outpatient-Commitment-White-Paper.6.28.21.pdf
[29] Maruschak, Laura M. and Bronson, Jennifer. June 2021. “Indicators of Mental Health Problems Reported by Prisoners: Survey of Prison Inmates, 2016” Department of Justice. Accessed November 5, 2023. https://bjs.ojp.gov/library/publications/indicators-mental-health-problems-reported-prisoners-survey-prison-inmates
[30] Martinson, Sarah. March 7, 2021. “Alternative Courts Not A Catch-All Fix For Mental Illness Crisis” Law 360. https://www.law360.com/articles/1356267/alternative-courts-not-a-catch-all-fix-for-mental-illness-crisis