Involuntary treatment and involuntary commitment laws: basis in law and history

by DJ Jaffe

The single most important book you should read is Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally Ill by Rael Jean Isaac and Virginia Armat (Free Press). It’s available on Amazon. This is a must-read that explains the issue of involuntary treatment and/or involuntary commitment from a legal/political/social perspective. What follows is an extremely basic introduction to some of the concepts you should know about.

Two reasons for removing freedom

Involuntarily committing someone involves taking away freedom. Hence, it is not a decision that can or should be made lightly,

Our laws provide two reasons to justify taking away someone’s rights. The first is to protect the citizenry from harm “(police powers”) and the second is to protect the individual from harming himself “parens patriae”. When the state invokes its police powers, it usually results in someone being arrested for breaking the law. On the other hand, parens patriae powers are used to help those who can’t help themselves. It is the justification for protecting children from abusive parents; individuals with developmental disabilities; the elderly with alzheimers. Invocation of parens patriae results in care and treatment, not incarceration.

Almost all state laws involving commitment evolve from these basis. When someone is actively trying to shoot someone, there is no doubt that the state can detain that person to protect society. When someone is trying to shoot their own self, there is also no doubt that the state can detain the person.** But when the act is less overt, it is often a gray area. The question of police powers often comes down to ‘how do you define dangerousness?’.

Commitment of people with mental illness is usually avoided unless the person is “dangerous”. However many believe it is time to make greater use of parens patriae standards.

Dangerousness is a hard standard to meet

The mental health bar continually argues that someone must be ‘imminently’ and/or ‘provably’ dangerous before the state can exercise its powers and remove the person’s freedom. For example, the Civil Liberties Union once brought in an expert witness to testify that just because a homeless mentally ill psychotic woman was eating feces, that it would not kill her and therefore she was not in imminent danger of being a danger to herself. Others may argue that an individual should only have to exhibit a condition which will predictably lead to dangerousness before they can be confined. That way they can be helped before they become dangerous, rather than after. This offers greater protection to both society and the individual.

There have been numerous court cases which have addressed this issue. (ex. Lessard vs. Schmidt, etc) But I would caution the careful advocate from placing blind faith in these previous decisions. First of all, all court decisions can be overturned. For example, at one time, ‘separate but equal’ was a concept endorsed by the Supreme Court. But it was overturned. Secondly, many decisions are routinely misinterpreted by the mental health bar to mean what they would like them to mean. For example, as a result of the Supreme Courts Donaldson decision, many civil libertarians argue that you cannot commit someone unless they are ‘dangerous’. But Paul Stavos, Esq., formerly of the NYS Commission on Quality of Care for the Mentally Disabled argues,

“In its (Donaldson) decision, the Supreme Court specifically spoke of someone who could ‘live safely in freedom’. The justices weren’t thinking of malnourished individuals lost in delusions lying on park benches in their own waste. I believe a well-crafted ‘need for treatment’ standard would be judged constitutional by this Supreme Court”.

Likewise the recent Kendricks v. Kansas decision allows for involuntary commitment of certain people with ‘mental abnormalities’, a class that never existed before the decision.

Greater use of Parens patriae powers needed

Unfortunately, the state rarely exercises its ability to commit individuals with NBD under parens patriae standards: to help the individual. These standards are most often used by the state to prevent children from abuse and to provide care for the developmentally disabled, not the mentally ill.

Many feel a return to the use of the states parens patriae powers to help those who while they may not be dangerous, certainly need help, would be beneficial.

Least restrictive treatment

Individuals have a right to the least restrictive treatment, not the most beneficial treatment Once a decision is made to remove someone’s civil rights, as a result of Supreme Court cases like Dixon vs. Weinberger, the person must be treated in the ‘least restrictive environment’. Some think this is good, others argue that perhaps the individual should be in ‘the most beneficial setting’, rather than the ‘least restrictive setting’ (assuming they are not the same thing); or that there should be some balance between the two. In addition, the concept of least restrictive setting would seem to argue for a greater use of outpatient commitment (this is a court order which allows someone to live in the community provided they follow a court ordered treatment plan such as staying on meds or off drugs.). Afterall, it is less restrictive than the alternative: inpatient commitment.

Outpatient Commitment (Assisted Outpatient Treatment)

Unfortunately, very few states make use of involuntary outpatient commitment (commonly known as Assisted Outpatient Treatment or AOT). Instead, they rely on the more restrictive (and often abusive) inpatient setting. Assisted Outpatient Treatment (AOT) laws allow a judge to order someone to stay in treatment as a condition of living in the community. The court also orders case managers and mental health programs to provide the treatment that is ordered. There is renewed interest in AOT due to its efficacy, low cost, and success at reducing hospitalizations, incarcerations and violence.

Involuntary Commitment does not equal Involuntary Treatment.

If an individual meets the criteria for commitment, they will be committed to the ‘least restrictive environment.’ But that does not mean they will automatically be treated. As a result of decisions like Rivers vs. Katz; Rogers vs. Okin; Rennie vs. Klien; In the Matter of Richard Roe, etc., in many states individuals receive one court or administrative hearing on whether or not they are ‘dangerous’ and should be involuntarily hospitalized and, in cases where they resist treatment, a second hearing on whether or not they should be involuntarily treated. These hearings often occur weeks apart resulting in the ludicrous, cruel, expensive, and dangerous proposition of having someone hospitalized but not allowed to be given treatment.

The reason for this is that there are two different criteria used.

You can remove someone’s civil rights (commit) them if they are dangerous. But even someone who is dangerous, is still assumed to ‘have capacity (or competence)” to make their own treatment decisions. Hence, one can be acting dangerously, yet still retain capacity. In that case the individual would be committed but have a right to refuse treatment and a second court hearing would be needed on whether or not they retain capacity. If they have capacity, they cannot be treated over objection.

It is important to note that not everyone who ‘lacks capacity’ will be automatically treated. Nor should they. For example, if they don’t respond to medicines or treatment it makes no sense to treat them. A decision that someone lacks ‘capacity’ only gives someone else the right to make the treatment decision for him or her. It does not mandate that they give treatment. This fact is sometimes purposefully ignored. When considering all this please remember that a consumer may have the ability to ‘voice’ a decision, yet not have the capacity to logically come to the decision they are giving voice to.


Anosognosia is a lack of awareness of illness. Up to 50% of seriously mentally ill who are untreated suffer from this: they are so ill, they don’t know they are ill. The brain, the organ charged with helping them recognize they are ill, is the organ that is not functioning. So many people with mental illness do not know they have it.

Again, please read Madness in the Streets, for a more complete and useful understanding of the laws.

DJ Jaffe is Executive Director of the non-partisan Mental Illness Policy Org., and author of Insane Consequences: How the Mental Health Industry Fails the Mentally Ill. He is a critic of the mental health industry for ignoring the seriously ill, and has been advocating for better treatment for individuals with serious mental illness for over 30 years. He has written op-eds on the intersection of mental health and criminal justice policy for the New York Times, Wall St. Journal and the Washington Post. New York Magazine has credited him with being the driving force behind the passage of New York’s Kendra’s Law and Congress incorporated ideas proposed by DJ in the Helping Families in Mental Health Crisis Act.