BEYOND OVERT VIOLENCE:
WISCONSIN’S PROGRESSIVE CIVIL COMMITMENT STATUTE AS A MARKER OF A NEW ERA IN MENTAL HEALTH LAW
Steven K. Erickson, Michael J. Vitacco, Gregory J. Van Rybroek [FNa1]
Copyright © 2005 Marquette Law Review;
Marquette Law Review
The civil commitment of the mentally ill is one of the most contentious areas of mental health law. [FN1] The legacy of civil commitment has encompassed a dual policy of protecting the public from the dangerously mentally ill and providing treatment for those who are unable to care for themselves. [FN2] With the continued growth of outpatient mental health care as the predominant means of providing services for the mentally ill, states have adopted statutes that allow for more *360 aggressive treatment. [FN3] Many of these statutes provide for the commitment of the mentally ill under new statutory schemes that reflect the changing landscape of mental health services. [FN4] This shift reflects a progressive legislative understanding that certain individuals with severe mental illnesses are chronically ill and will repeatedly decompensate into their illnesses under an “imminent dangerousness” standard, resulting in a “revolving door” of commitments, incarceration, and homelessness. [FN5]
Nowhere has this shift towards more aggressive treatment been more evident than in Wisconsin, a state that has been on the forefront of mental health legislation for over thirty years. Wisconsin’s leadership began with Lessard v. Schmidt, [FN6] a seminal decision marking the beginning of a national trend in commitment statutes focusing on imminent dangerousness as a necessary criterion for initial and continued commitment. [FN7]
This leadership has continued with the enactment of the “Fifth Standard,” [FN8] a law that turns away from the requirement of imminent dangerousness to a more socially responsible statute that provides for commitment before a person completely deteriorates into illness to the point that he or she poses an imminent danger to self or others. The amended statute flows from a social awareness bolstered by neuropsychiatric research within the past two decades that has revealed that undertreated severe mental illnesses are *361 highly prevalent [FN9] and associated with repeated hospitalizations, [FN10] poor social and occupational functioning, [FN11] increased substance abuse, [FN12] homelessness, [FN13] criminal victimization, [FN14] and overall poor prognosis. [FN15]
Furthermore, outcries from advocacy groups and family members of people afflicted with severe mental illnesses regarding the inadequacy of imminent dangerousness commitment laws spurred a number of more assertive treatment models that recognized the need for early intervention to avoid the pitfalls of untreated illness. [FN16]
In 1995, the Wisconsin Legislature amended its civil commitment statute to permit the commitment of an individual who, due to mental illness, is unable to understand the advantages, disadvantages, or alternatives to a particular treatment or is unable or unwilling to apply them to his or her situation and requires such treatment to prevent severe mental, emotional, or physical harm. [FN17] This “Fifth Standard of Dangerousness” is a clear departure from previous standards for commitment as it does not require that the alleged mentally ill person pose a substantial direct risk of harm to self by his or her actions. [FN18] Nor does it rely upon the provision of grave disability to authorize commitment. Rather, the new standard focuses on whether the person’s “acts or omissions” [FN19] lead to a “substantial probability” [FN20] that, if left untreated, the illness would result in the “loss of the individual’s ability to function independently in the community or loss of cognitive or volitional control.” [FN21] Thus, this new Fifth Standard of Dangerousness explicitly places its emphasis on whether the alleged person is able to maintain living within the community [FN22] instead of relying upon serious overt acts of violence or extreme neglect of personal self-care to provide for commitment. [FN23]
In the case of In re the Commitment of Dennis H., [FN24] the Supreme *363 Court of Wisconsin upheld the constitutionality of the Fifth Standard against Fifth and Fourteenth Amendment challenges that it was overbroad, vague, violated equal protection, and violated substantive due process. [FN25] Of considerable importance to the court’s decision was the fact that this Fifth Standard did not dispense with dangerousness as a pre-condition of commitment.
The court re-defined the Fifth Standard from a narrowly conceived requirement of imminent dangerousness to a broader definition that included an awareness of the insidious and chronic nature of many forms of severe mental illness wherein treatment is a cause of the illness’s pathology and not necessarily a free choice by the patient. Thus, the court recognized that the state has a well established interest under its parens patriae power to provide care for persons unable to care for themselves in addition to its inherent authority under its police power to protect the community from mentally ill persons determined to be dangerous. [FN26]
This Article examines the legal and social context that created the climate for the amended Wisconsin civil commitment statute that permits this Fifth Standard of Dangerousness. It concludes that the Wisconsin Supreme Court properly decided to uphold the amended civil commitment statute based on the state’s legitimate interest under its parens patriae powers. By upholding the constitutionality of the amended statute, the court demonstrated harmony with the United States Supreme Court’s caution against second-guessing legislative judgments in the area of mental health commitments.
II. Constitutional Background of Wisconsin’s Civil Commitment Statutes
The Pre-Reform Statute
Until the early 1970s, commitment of the mentally ill was a simple and routine matter. [FN27] Most states required that a person be mentally ill and “appropriate” [FN28] for inpatient care. Wisconsin’s pre-reform statute required that a person subjected to a commitment proceeding be mentally ill and a proper subject for custody and treatment. [FN29] Qualification as a “proper subject” [FN30] often rested upon the subjective judgment of the treating psychiatrist. [FN31] Behavior simply deemed irresponsible by a treating psychiatrist could satisfy the statutory requirement for commitment. [FN32] In practical terms, the sole fact that a person was mentally ill was sufficient to support a commitment petition. [FN33] The pre-reform statute also allowed for emergency detention of alleged mentally ill persons for a period of up to five days with the possibility of a court-ordered extension of 145 days before a court held a hearing on the merits of the petition. [FN34]
The standards for commitment in Wisconsin began to shift dramatically in 1972 with the ruling in Lessard v. Schmidt. [FN35] In Lessard, the Federal District Court for the Eastern District of Wisconsin held most of the pre-reform civil commitment statute unconstitutional due to its lack of procedural safeguards. [FN36] In 1971, Alberta Lessard was taken into custody by two police officers who subsequently took her to the Mental Health Center in Milwaukee. [FN37] She was detained there for four *365 days on an emergency basis without a hearing. [FN38] Her confinement was extended for ten days following an appearance by the police officers before a judge. [FN39] The psychiatric hospital where she was detained diagnosed her as suffering from schizophrenia and then requested that she be permanently committed to its care. [FN40] Lessard was not informed of any of these proceedings, was not present for them, and as a consequence, was unable to cross-examine any of the witnesses or present her own evidence. [FN41] Nonetheless, at an ex parte commitment hearing, which took place twenty-four days after the initial detention, the judge found her “mentally ill” and ordered her committed for thirty days, [FN42] which was subsequently extended to nearly a year. [FN43]
On her own initiative, Lessard retained her own attorney and filed a class action suit in federal court claiming, among other constitutional claims, that the Wisconsin civil commitment statute violated her due process rights in three chief ways: (1) by allowing a possible maximum detention of 145 days without the benefit of a hearing; (2) by failing to make notice of all hearings mandatory; and (3) by failing to provide for notice of a jury trial by right. [FN44]
The district court held that Wisconsin’s commitment statute violated Lessard’s constitutional rights and ordered her release. The court held that only a compelling state interest could justify the denial of the fundamental “liberty to go unimpeded.” [FN45] The court acknowledged that, traditionally, the deprivation of liberty inherent in civil commitments had been justified by both the state’s police power and the parens patriae role of the state in its citizens’ affairs. [FN46] But, the court questioned the role of parens patriae in commitment proceedings, noting that many mental illnesses are untreatable, the quality of institutional treatment and confinement may be inadequate, and that lengthy treatment possibly may worsen patients’ health. [FN47]
The court’s decision in Lessard reflected the prevailing view at the time that much of what was considered mental illness was nothing more than “eccentric behavior” or the side effects of the medications provided for treatment. Consequently, the court was especially hesitant to allow commitments in situations where the court or a medical professional substituted judgment in lieu of the patient’s own desires, absent a showing of a clear emergency.
The court also noted that the stringent safeguards provided to criminal defendants were not afforded to persons undergoing civil commitment, despite what the court observed were great similarities in terms of deprivation of liberty. Patients committed under the statute lost numerous civil rights, including the presumption of competency, [FN48] the right to make contracts, the right to sue, the right to marry, the right to professional licenses, the right to drive, the right to vote, and the ability to serve on juries.
Furthermore, the court observed:
Persons in need of hospitalization for physical ailments are allowed the choice of whether to undergo hospitalization and treatment or not. The same should be true of persons in need of treatment for mental illness unless the state can prove that the person is unable to make a decision about hospitalization because of the nature of his illness. It is certainly true that many people, maybe most, could benefit from some sort of treatment at different periods in their lives. However, it is not difficult to see that the rational choice in many instances would be to forego treatment, particularly if it carries with it the stigma of incarceration in a mental institution, with the difficulties of obtaining release, [and] the curtailments of many rights . . . . [FN49]
The stigma attached to mental illness seemed of particular concern to the court, which it noted may have “long lasting effects on the *367 individual’s ability to function in the outside world.” [FN50]
Drawing on the United States Supreme Court’s decision, In re Gault, [FN51] to extend procedural rights to defendants in juvenile courts, which conventionally had been considered civil matters, the court in Lessard extended these protections to respondents in civil commitment hearings, remarking that the deprivation of liberties that committed patients experienced were akin to criminal convictions. [FN52] Consequently, the court held that patients who were petitioned for civil commitment were entitled to procedural rights akin to criminal defendants, including timely notice of the charges, notice of their rights, a right to a jury trial, and the right to representation by an attorney. [FN53] It set forth that hearsay evidence was inadmissible in these hearings and that the patient retained the privilege against self-incrimination. [FN54]
Additionally, the court required a probable cause hearing within forty-eight hours and established that the state had to prove “beyond a reasonable doubt” both that the patient is mentally ill and immediately and overtly dangerous. [FN55] Thus, the stage was set for the removal of parens patriae as a justification for civil commitment in Wisconsin, a phenomenon that soon swept the nation. [FN56]
B. The 1976 Mental Health Act
After several years of appeals and legislative concern about the status of the statute, the Wisconsin Legislature enacted a new Mental Health Act, [FN57] which codified much of the Lessard decision. The act provided for greater procedural and substantive safeguards in commitment proceedings, making commitments much more difficult. Specifically, the act specified three standards of dangerousness that *368 could legitimately lead to civil commitment. [FN58]
The first standard was a self-injury standard requiring evidence of recent threats, attempts at suicide, or serious bodily harm. [FN59]
The second standard required a substantial probability of physical harm to others as evidenced by a recent overt act of violent behavior. [FN60]
Finally, the third standard required impaired judgment evidenced by a pattern of recent acts or omissions that demonstrated a substantial probability of physical impairment or injury to self. [FN61] Commitments based on anything other than these strictly defined dangerousness standards were effectively prohibited.
In addition to defining strict standards of dangerousness, the act also required a probable cause hearing within forty-eight hours of commitment and a final hearing within fourteen to twenty-one days for a person in custody or within thirty days for a person who had been released but awaited further proceedings. [FN62]
The rationale for requiring a prompt hearing was in part a reflection of the concern expressed by the court in the Lessard decision that “even a short detention in a mental facility may have long lasting effects on the individual’s ability to function in the outside world due to the stigma attached to mental illness.” [FN63] More telling, however, the new Mental Health Act reflected the civil liberties movement of the 1970s in that it specifically stated, “To protect personal liberties, no person who can be treated adequately outside of a hospital, institution or other in patient facility may be involuntarily treated in such a facility.” [FN64]
C. The 1980 Amendment to the Act
The legislature added a Fourth Standard of Dangerousness to the act in 1980, comm.only referred to as “the grave disability provision.” [FN65] This standard provided for civil commitment when a person, due to his or her mental illness, is unable to satisfy basic needs of nourishment or self-care and the illness, without prompt treatment, would result in a *369 substantial probability of death or serious injury. [FN66]
The addition of the Fourth Standard indicated a loosening of the statutory commitment standards by broadening the definition of dangerousness. Some commentators have observed that the addition of the “gravely disabled” standard was a national phenomenon designed as a “catch-all” category that represented a return to the parens patriae power. [FN67]
The addition of the gravely disabled provision among many state civil commitment statutes was, in part, in response to the problem of shorter hospital stays. As a result, hospitals increased their utilization of “psychiatric stabilization” [FN68] protocols whereby patients were placed on medications during brief inpatient stays and quickly discharged back to the community once they were deemed no longer imminently and overtly dangerous, regardless of other presenting active symptoms. As a consequence, many patients would return to the community before becoming fully stabilized and would frequently stop taking their medications. [FN69] Often, this left some patients unable to care for themselves, without any overt violent acts. Thus, prior to the grave disability standard, critics argued that many mentally ill individuals were not receiving care and their illnesses were allowed to progress as they *370 lacked “shelter, food, and clothing.” [FN70]
Moreover, the adoption of the grave disability standard signaled a national movement away from a civil libertarian approach to civil commitment and an emphasis on a “social service” approach that focused on the impairments of severe and persistent mental illnesses. [FN71] The emphasis on severe mental illness as a “life choice” began to decline.
D. The 1995 Amendment
By the mid-1990s, the need for a commitment standard based on more than simply active, imminent dangerousness was clear. Of special importance was the emerging realization that a certain percentage of persons with a severe mental illness are rendered incapable of understanding that they are ill. Whereas at the time of the Lessard decision, refusing care or refusing to acknowledge one’s illness may have been attributed to a patient being “in denial” or to a conscious decision on the part of the patient, it is now recognized as a biologically based condition of the illness itself.
The significant role this condition, termed anosognosia, plays in the treatment of severe mental illness has only recently become widely recognized. [FN72] It is vitally important, however, as lack of insight is one of the main reasons why many individuals fail to take their medication and repeatedly become caught up in a cycle of hospitalization, incarceration, and homelessness. [FN73]
In 1995, the Wisconsin Legislature recognized the need to address this problem and amended its civil commitment statute, permitting the commitment of an individual who, due to mental illness, is unable to understand the advantages, disadvantages, or alternatives to a particular treatment, or is unable or unwilling to apply them to his or her situation and requires such treatment to prevent severe mental, emotional, or physical harm. [FN74]
This Fifth Standard of Dangerousness was a clear departure from the previous standards for commitment because it did *371 not require that the alleged mentally ill person pose a substantial and direct risk of harm to self by his or her actions. Nor did it rely upon the provision of grave disability to authorize commitment. [FN75] Rather, the new standard focuses on whether the person has a history of similar symptoms as measured by at least one previous civil commitment and whether the person’s current “acts or omissions” are leading to a “substantial probability” that, if left untreated, would result in the “loss of the person’s ability to function independently in the community or the loss of cognitive or volitional control.” [FN76]
Thus, this new Fifth Standard of Dangerousness explicitly emphasizes whether the alleged person is able to maintain living within the community instead of relying solely upon serious overt acts of violence or extreme neglect of personal self-care as specified by Lessard and the 1976 amendments.
Overview of the Dennis H. Case
On June 23, 2000, Dennis H.’s father, a psychiatrist and case manager, filed a three-party petition in Milwaukee County Circuit Court to have his son committed under Wisconsin’s civil commitment law. [FN77] Dennis H. had been diagnosed with schizophrenia, and he was refusing to take his prescribed psychotropic medication, which in the past led him to be hospitalized for acute renal failure, secondary to rapid weight loss and severe dehydration. [FN78] The petition asserted that Dennis H. was mentally ill and dangerous as set forth in the statute under the Fifth Standard of Dangerousness.
Dennis H. moved to dismiss, arguing that the standard was unconstitutional. The court denied Dennis H.’s constitutional claims, noting that the state had a justifiable interest under its police and parens patriae powers in protecting society and the mentally ill.
[FN79] It concluded that the Fifth Standard of Dangerousness constituted a “‘new description of dangerousness”‘ [FN80] sufficient to justify commitment “albeit ‘in a little different vocabulary.”‘ [FN81] Furthermore, the trial court held that since the Fifth Standard did not dispense with the dangerousness requirement, *372 the statute was “‘constitutionally appropriate.”‘ [FN82]
Pursuant to the statute, a probable cause hearing was held, and based upon the testimony of two psychiatrists, a jury determined that Dennis H. was in need of inpatient treatment as defined by the Fifth Standard. [FN83] The court ordered Dennis H. committed for a period of six months, which was subsequently extended by stipulation for another six months. [FN84]
Dennis H. appealed the commitment, arguing that the Fifth Standard was unconstitutionally vague, was overbroad, and violated his right to equal protection and due process under the Federal Constitution and state constitution. [FN85] The Wisconsin Supreme Court upheld the statute, holding that the state has a well established, legitimate interest under its parens patriae power in providing care to persons unable to care for themselves and has the authority under its police powers to protect the community from dangerously mentally ill individuals. [FN86] The court rejected Dennis H.’s claim that the statute was overbroad and vague and held that the statute did not violate his rights to equal protection or due process under the Federal Constitution or state constitution. [FN87]
A. Analysis of the Supreme Court of Wisconsin’s Reasoning
Dennis H. claimed that the Fifth Standard was simply a restatement of the definition of mental illness and, therefore, allowed for commitment upon the finding of mental illness alone in violation of Lessard. [FN88] The court rejected this argument, stating that the Fifth Standard “requires proof of a substantial probability of something more than impairment.” [FN89] The court focused on the standard’s prerequisite finding of a “substantial probability of a ‘loss of the individual’s ability to function independently in the community or the loss of cognitive or *373 volitional control over his or her thoughts or actions.”‘ [FN90] The court reasoned that the statute required a “heightened standard of impairment” [FN91]–one beyond merely the presence of a mental illness, and accordingly, the standard was not a reiteration of the definition of mental illness. [FN92]
In addition, the court acknowledged that the Fifth Standard was long and complex but held that the statute provided objectively discernable standards by which a commitment decision could be made and, therefore, gives proper notice. Relying upon In re Commitment of Curiel, [FN93] the court declared that the statute provided objective criteria and was “not so obscure that men of common intelligence must necessarily guess at its meaning.” [FN94]
More specifically, the court held that the statute permits commitment of a person under the Fifth Standard only when that person is mentally ill, incompetent to make treatment decisions, [FN95] and a “substantial probability” [FN96] exists that he or she will need treatment to prevent further disability. Under the umbrella of commitment, the court also included individuals who are unable to obtain services “necessary for his or her health or safety, and suffer severe mental, emotional, or physical harm.” [FN97]
In providing more rationale for upholding the standard, the court believed the statute was specific and tailored to meet a compelling state interest. Moreover, the court emphasized that the statute explicitly limited its reach by forbidding commitment if the petitioned person’s treatment was available within the community [FN98] and there was a *374 “reasonable probability” [FN99] that the person would avail himself or herself of this treatment.
The court stated that the provision of “substantial probability” [FN100] within the statute was a “proper standard of adjudication” [FN101] and concluded that the statute was not unconstitutionally vague, relying again on Curiel [FN102] in stating that the statute was not “so obscure” [FN103] that people of “common intelligence” [FN104] would have to “guess at its meaning and differ as to its applicability.” [FN105] Thus, the court appeared satisfied that the numerous conditions that a petitioned person would have to exhibit, in addition to mental illness, ensures that the statute is not vague and applies only to a select number of seriously mentally ill individuals under specific circumstances.
The court, mindful of the seminal decision in Lessard, [FN106] concluded that the statute could be held only as overbroad “if by its terms it could reasonably be applied to commit mentally ill persons who are not in any way dangerous to themselves or others.” [FN107] The court then proceeded to emphasize that the statute itself required a finding of dangerousness [FN108] in order for a person to be eligible for civil commitment. Furthermore, the court signaled its historical reluctance to overturn any statute based on an overbroad argument, stating that overturning on grounds of overbreadth is “strong medicine” and that it should be used only as a last resort. [FN109]
Reiterating its decision in Bachowski v. Salamone, [FN110] the court *375 further clarified its position in holding that a statute is only overbroad if its “‘language, given its normal meaning is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.”‘ [FN111] Most importantly, the court elaborated on the importance of deference to the legislature in areas such as civil commitment. Quoting the United States Supreme Court in Heller v. Doe, [FN112] the court explained,
“‘[W]e deal here with issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing. In such a context, restraint is appropriate on the part of the courts called upon to adjudicate whether a particular procedural scheme is adequate under the Constitution.”‘ [FN113]
Here the court correctly followed the mandates of the United States Supreme Court and its own court in State v. Post [FN114] by deferring to the legislature the exploration and enactment of laws in these vexing and contentious areas. The court recognized that United States Supreme Court case law requires only that an individual be “dangerous” as well as mentally ill in order to be committed, the exact definition of which is to be left up to each individual state legislature. [FN115]
Consequently, the court showed a willingness to accept the Fifth Standard’s expanded notion of dangerousness, which focuses on the effects that severe and persistent mental illnesses have on a person’s ability to live independently and capacity to make informed treatment decisions. In accepting a more complex understanding of dangerousness, the court flatly rejected the Lessard reasoning that dangerousness includes only behavior that upsets the public, directly involves police intervention, or is life threatening.
The court concluded the statute requires a showing of dangerousness, albeit a more sophisticated one than previously codified. [FN116] In reaching this decision and affirming the end of a reliance on imminent dangerousness commitment criteria, the Wisconsin Supreme Court effectively reflected the developing nature of civil commitment criteria. In the early 1970s the courts and the legislature were faced with real questions as to the nature of severe mental illness and the *376 possibility that “the cure was just as bad as the disease.” [FN117]
By the late 1990s, treatment had become much more effective, and the consequences of untreated severe mental illness were much more widely understood. [FN118] As treatments have evolved, so have legislative determinations of what degree of dangerousness is necessary for commitment. [FN119]
3. Equal Protection
Dennis H. specifically targeted this broader definition of dangerousness, arguing that the Fifth Standard violates equal protection by allowing commitment and involuntary treatment under circumstances different from those existing under the other four standards of dangerousness. [FN120] Specifically, he contended that since the Fifth Standard refers to “mental, emotional, or physical harm” [FN121] as a prerequisite for commitment rather than simply “physical harm” [FN122] as the other standards require, the statute was unconstitutional because it dispenses with the necessity of a finding of direct physical harm, permitting commitment based upon “mere mental or emotional harm.” [FN123] He also contended that the Fifth Standard created a separate class of individuals who were subjected to a substantially different process of commitment in violation of equal protection under the laws. [FN124]
In rejecting this argument, the court emphasized the statute’s requirement that there is a “substantial probability” [FN125] that the person will “suffer severe mental, emotional or physical harm” [FN126] and that this will result in the person’s loss of ability to function in the “community or the loss of cognitive or volitional control over his or her thoughts or *377 actions.” [FN127] Thus, the court indicated that the distinction between “emotional harm” and “physical harm” is of little consequence if the results are behaviors that lead directly to a person’s inability to safely survive in the community and his or her “fundamental health or safety” is threatened. [FN128]
The court went even further by holding that even if the statute had created a separate class by the addition of the Fifth Standard, it would not necessarily be impermissible. Relying upon several key court decisions, which have all held that there is no violation of equal protection if the government has a rational basis for implementing a law, [FN129] the court accepted the legislative determination that there is a rational basis for distinguishing between those people who have capacity to make treatment decisions and those, who by virtue of their mental illness, lack the capacity to make these decisions. [FN130]
Noting that claims involving persons who are subject to commitment are not subjected to intermediate or strict-scrutiny judicial review, the court held that the statute is constitutional irrespective of whether it establishes separate classes by promulgating different standards of dangerousness. [FN131] Again, the court was unwilling to invade the legislature’s purview of the definition of dangerousness, insofar as the classification had a rational basis. [FN132]
4. Substantive Due Process
Dennis H. also challenged the broadened definition of dangerousness on substantive due process grounds, arguing that the Fifth Standard allowed his commitment without evidence that he was at risk of imminent physical danger to himself or others. [FN133] The court also rejected this argument, stating that the state has a long-standing legitimate interest under both its parens patriae and police powers to confine dangerous, mentally ill individuals–the danger need not be imminent or a person need not be “literally” dangerous to self. The court quoted the United States Supreme Court’s holding in O’Connor v. *378 Donaldson [FN134] as illustrative:
[E]ven if there is no foreseeable risk of self-injury or suicide, a person is literally “dangerous to himself” if for physical or other reasons he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends. [FN135]
The court reiterated that the statute does not permit commitment by a finding of mental illness alone, which would violate the constitution under Donaldson; rather, it allows for commitment when a person “needs care or treatment to prevent deterioration but is unable to make an informed choice.” [FN136]
In addition, the court emphasized that although it is impermissible for a state to confine a mentally ill individual who is able to safely survive in the community, this does not mean that a person needs to be imminently dangerous before commitment can occur. In referring to its decision in State v. Post, [FN137] that “[t]here is no ‘single definition that must be used as the mental condition sufficient for involuntary mental commitments,”‘ [FN138] the court reconfirmed its reluctance to second-guess legislative determinations when it comes to drafting difficult definitions.
V. Why the Fifth Standard is Needed
Since the advent of modern psychotropic medications, there has been a steady decline in the number of psychiatric patients who receive the majority of their care within the confines of a state hospital. [FN139] Likewise, the number of patients who receive moderate or long-term care within an inpatient context has fallen sharply within the past twenty-five years. [FN140] This has led to the adoption of outpatient treatment *379 as the primary means of providing psychiatric care for the severely and persistently mentally ill. [FN141]
Similarly, in the 1970s, through a number of landmark court cases, [FN142] the states’ parens patriae power had been curtailed significantly in favor of broader patient liberties. [FN143] Many of these initial cases were in response to a correctly perceived notion that patients’ fundamental due process rights were routinely violated. [FN144] The parental authority of the state was presumed to be benevolent and necessary for the proper care of individuals with psychiatric diseases that often left them poor, victimized, and impaired to make rational day-to-day choices. [FN145] However, it became clear during the height of institutionalized care in the 1950s and 1960s that the parental authority of the state often did not place patients’ best interests at the forefront when policies and regulations were adopted. [FN146] Moreover, the quality of life in many state hospitals had become deplorable, with many of the hospital wards relegated to merely “warehousing” the mentally ill while providing little in terms of significant treatment. [FN147]
Thus, at the height of the deinstitutionalization, there was a fundamental shift away from a reliance of the state’s parens patriae power towards patients’ civil liberties. As a consequence, civil commitment statutes were more narrowly tailored with an emphasis on the state’s police powers, which focused on protecting the public from the dangerously mentally ill. [FN148]
This shift in policy meant that commitment statutes were less concerned with understanding mental disease processes and the requirements for good psychiatric care (e.g., long inpatient stays for stabilization of psychiatric symptoms). The statutes were geared toward defining imminent and overt dangerousness, arising out of symptoms of mental illness, as the critical factor necessary for involuntary civil commitment. Thus, the focus turned toward maintaining public safety while infringing as little as possible on patients’ individual rights to refuse psychiatric treatment, absent a showing of imminent physical dangerousness. [FN149] In this way it was believed that the public common good (i.e., personal or community safety) and individual liberties were evenly balanced to account for interests of the mentally ill and the public at large.
However, it soon became clear that early utopian ideas of deinstitutionalization had underestimated the persistence and severity of most chronic mental illnesses. This, along with the failure of community mental health centers to provide adequate outpatient care for the seriously mentally ill, lead to a sharp increase in homelessness, treatment noncompliance, and an increased use of illicit drugs by the seriously mentally ill. [FN150]
Thus, beginning in the mid-1980s, many mental health advocates began to decry what was perceived by many as an ineffective mental health system that was unable, and sometimes unwilling, to care for the seriously mentally ill in the outpatient context and that was committed to downsizing state mental hospitals as much as possible to save precious fiscal resources. Consequently, deinstitutionalization has lead to a plethora of problems that were unforeseen at its conception and has continued to plague the mental health system today.
The overarching result has been that many seriously mentally ill people struggle not only with their psychiatric symptoms, but also with a system that perpetuates poverty, homelessness, drug abuse, and neglect of basic health care. [FN151] This legacy of the deinstitutionalization movement has had a profound impact upon the management and treatment of serious mental illnesses. Prior to deinstitutionalization, care for the seriously mentally ill focused primarily on treating the presenting psychiatric symptoms of the patient. [FN152] Now, mental health professionals must contend with co-occurring substance abuse problems and other maladies that tend to make treatment more problematic and worsen prognoses. [FN153]
Pathology of Severe and Persistent Mental Disorders
Within the past twenty years, the scientific understanding of severe mental disorders has increased tremendously. New technology, including magnetic resonance imaging, [FN154] has allowed researchers to better understand how diseases like schizophrenia profoundly affect brain morphology and functioning. [FN155] In addition, there has been an increased understanding that many people with severe mental illness do not believe that they are sick or in need of treatment. [FN156] This lack of insight into one’s mental illness has been heralded by researchers and clinicians as a hallmark of many severe mental illnesses (e.g., schizophrenia). [FN157]
In addition, research has shown that lack of insight into mental illness is often correlated with decreased cognitive abilities. [FN158] Thus, the *382 more impaired one is in terms of insight, the more likely it is that one’s cognitive abilities are compromised. Furthermore, some have suggested that intelligence and insight are correlated as well. [FN159] Thus, the less insight one has into one’s mental illness, the more likely it is that one has a lower intelligence quotient.
Consequently, individuals who have little or no insight into their mental illness are often at a severe disadvantage in terms of understanding the full implications of their illness since their cognitive and intellectual abilities are compromised.
Moreover, this impairment of cognitive abilities explains why some severely mentally ill persons cannot make rational choices regarding their treatment. Since cognition is impaired, the ability of persons with severe mental illnesses to comprehend the advantages or disadvantages of treatment options is also impaired. Given this, it is not unusual for a treating psychiatrist to feel frustrated that, after explaining various treatment options to a patient suffering from schizophrenia, the patient elects to forego treatment substantially likely to improve his or her daily living.
Another key component of severe mental illnesses is the prevalence of hallucinations, delusions, and illogical thinking. Current neuroscientific research has demonstrated that these symptoms of mental illness are the result of brain abnormalities. [FN160] Thus, if a person has the delusion that his or her food is poisoned, he or she is unlikely to eat even if the delusional symptom leads to starvation. Mental health advocates have relied on the understanding that mental illnesses have biological underpinnings in explanations of the necessity of civil commitment statutes.
There is little weight to the position that mentally ill persons “choose” to be sick, to live in substandard conditions, and to fail to take adequate care of their health. The majority of current scientific evidence is that mental disorders are fundamentally biological diseases of the brain that have a profound impact on a person’s ability to care for himself or herself, either occasionally or chronically. The position of philosophers such as Thomas Szasz, who hold that mental illnesses are essentially a creation of society to marginalize aberrant behaviors, is now untenable and should be wholly rejected to give further legitimacy to the biological underpinnings of severe mental illnesses and end the further stigmatization of mental illnesses as creations for societal *383 control. [FN161]
Efficacy of Outpatient Commitment Treatment
Within the past decade there has been a movement by state governments to provide mandated outpatient treatment for persons with severe mental illnesses and a history of violence, treatment noncompliance, or both. [FN162] Many of these programs were enacted as statutes after tragedies in which persons with disorders, such as schizophrenia, had committed acts of extreme violence. [FN163] For instance, in New York, after a man with a history of chronic paranoid schizophrenia pushed a bystander in front of a subway, the New York Legislature quickly moved to establish “Kendra’s Law,” a form of outpatient commitment. [FN164]
However, what is less known is that another strong impetus for the creation of outpatient commitment programs was the frustration of doctors, mental health workers, and families who continuously witnessed failures of outpatient treatment and fruitless attempts to have someone admitted to a psychiatric facility. A pervasive belief was that traditional outpatient care was not responsive enough when a patient disengaged in treatment, often waiting until the patient presented a serious and imminent risk of physical harm to others or themselves before involuntary treatment was commenced.
Many families of persons with mental illness voiced their concern that outpatient treatment was ineffective at providing the required level of care. Through a grassroots movement, these families petitioned for the creation of outpatient commitment programs to provide care, even over a potential patient’s objection. [FN165]
*384 Although initially embroiled in controversy, [FN166] outpatient commitment programs appear to be effective in treating people with severe mental illnesses in an outpatient context. [FN167] Current research has demonstrated that outpatient commitment programs are associated with reduced rates of hospitalization, improved treatment compliance, and a reduction in police contact. [FN168] These programs function on the premise that psychiatric intervention must come before a patient completely decompensates into another psychotic episode. These programs have expanded the dangerousness criteria involved in commitment statutes, providing for treatment over objection when a person has a history of treatment noncompliance and frequent hospitalizations, violence, or both.
The evolving criteria for outpatient commitment is in harmony with scientific knowledge about severe mental disorders–disorders can lead a person to act in a dangerous manner, without the person being aware as to how his or her behavior directly places his or her health and well-being into jeopardy. While the law traditionally lags behind science, delays in crafting sensible legislation from scientific knowledge can have devastating consequences. Fortunately, the Wisconsin Legislature and Wisconsin Supreme Court have shown that Wisconsin is joining the growing number of states that have recognized that civil commitment criteria should not be so narrowly construed as to eliminate the possibility of proactively assisting persons who otherwise are well on their way to harming themselves or others.
The tension between individual civil liberties and the need of the public to be protected from dangerous persons, including the mentally ill, has been an enduring feature of American law. In many respects, modern mental health law has been a touchstone of society’s fluid opinion as to whether public policy’s emphasis should be limited to *385 safeguarding the public or a fuller mission of providing substantive care for the disenfranchised.
The new standard reflects the current landscape of psychiatric care in the United States in which the outpatient context provides the majority of care, even for persons with severe and persistent mental illnesses.
Critics have argued that this shift of care from long-term hospital care to community outpatient care has created a system in which many seriously mentally ill people do not receive the proper continuity of care. However, many commentators have praised the emphasis of outpatient care as a means of liberating patients from years of inpatient commitment where opportunities for normal life are limited. Yet, there are persons who would benefit from short-term hospital placement before becoming overtly dangerous who will not accept treatment on a voluntary basis.
A prime example of this dilemma is in the history of commitment statutes, which have shifted from an almost exclusive reliance on the states’ parens patriae powers (the pre-reform statute) to commitments resting mainly on the police powers (post Lessard).
The adoption of the Fifth Standard of Dangerousness in Wisconsin and outpatient commitment statutes in other states represents another modest shift in American mental health law toward a reliance, at least in part, on the states’ parens patriae powers. This movement is due to many factors, but certainly the failure of the broad civil libertarian policies represented by Lessard and its progeny bare significant connection and responsibility for this shift.
Although well intended, the policy represented in Lessard ignored the fundamental reality that people with severe mental illnesses may occasionally (or continually) suffer from such impaired insight into their illnesses that their judgment to make rational choices is absent. Science has now enlightened our understanding that these behaviors are not merely choices, but rather symptoms of a disease.
Consequently, a benevolent and lucid mental health policy should have as its underpinnings an understanding of the pathogenesis of mental illness and should conform its principles to enhancing individual liberties by providing treatment, even over a person’s objection, when there is compelling evidence that such treatment will uphold those goals. Of course, the goal does not justify the means, ethically or legally, if the means are unethical, illegal, or inhumane. A narrowly tailored additional commitment standard does not open hospital floodgates, but instead offers a necessary means to help prevent mentally ill persons from behaving in a manner that is harmful.
*386 In summary, the Fifth Standard extends the protection afforded to mentally ill adults to include a broader range of issues than proximal dangerousness as a result of mental illness. Showing insight, the Wisconsin Supreme Court recognized systemic deficits apparent in many mentally ill individuals that severely hinder their ability to receive appropriate treatment.
The Wisconsin Supreme Court recognized its responsibility for the overall welfare of its citizens with mental illness and provided communities the appropriate leverage to protect its mentally ill citizens.
State Standards for Assisted Treatment: State by State Chart
This chart captures the most essential information about the laws for assisted treatment in each state, including the following information:
Need for treatment. States with this column marked have a standard for assisted treatment that includes eligibility criteria
permitting the placement in treatment of those overcome by mental illness based on the need for treatment. The standard normally includes other requirements, such as the inability to make an informed medical decision. Some standards that are arguably needed for treatment based standards have not been classified as such because of their limited scope. For instance, the first generation ‘gravely disabled’ standard found in many states, which requires that a person be unable to access food, shelter, etc., to a degree that causes a substantial physical danger, has not been classified as a need for treatment standard. Whereas those gravely disabled standards that allow for treatment based on a person’s inability to provide for needed psychiatric care have been designated as need for treatment based criteria. The standards of exactly half of the states and the District of Columbia met or exceeded this limited need for treatment threshold. Relevant code sections. The sections of the state’s code containing the standard for treatment placement. Standard. This is a summary of the state’s standard for treatment placement, including key elements of the state’s requirements for the placement in treatment of a person who refuses treatment because of the symptoms of mental illness. Please take note that while these descriptions do contain much of each standard’s actual language, they are summaries of only the most crucial provisions of the pertinent statutes for each state. *388
State Standards for Assisted Treatment: State by State Chart
State Need for Relevant code sections Standard [FN170] treatment [FN169]
Ala. X Ala. Code § 22-52-10.4 § Inpatient: A real and present 22-52-10.2 (LexisNexis danger to self/others, 1997) without treatment will continue to suffer mental distress and deterioration of ability to function independently, and unable to make a rational and informed decision concerning treatment. Outpatient: Without treatment will continue to suffer mental distress and deterioration of the ability to function independently, and the respondent is unable to make a rational and informed decision concerning treatment.
Alaska X Alaska Stat. § Inpatient and Outpatient: (1) 47.30.755(a) § Danger to self/others; (2) in 47.30.915(7), (10) danger from inability to (2004) provide basic needs for food, clothing, shelter, or personal safety; or (3) without treatment will suffer severe and abnormal mental, emotional, or physical distress causing deterioration of ability to function independently.
Ariz. X Ariz. Rev. Stat. Ann. § Inpatient and Outpatient: 36-540(A) § 36-501(5), (1) Danger to self/others;
(6), (16), (33)(Supp. (2) in danger from inability 2005) to provide basic physical needs; or (3) likely to suffer severe and abnormal mental, emotional, or physical harm without treatment, likely to benefit from treatment, and substantially impaired capacity to make informed decisions regarding treatment.
Ark. Ark. Code Ann. § Inpatient and Outpatient: (1) 20-47-207(c) (Supp. Clear and present danger to 2005) self/others; or (2) recent behavior or behavior history demonstrates that he/she so lacks the capacity to care for own welfare and that there is a reasonable probability of death, serious bodily injury, or serious physical or mental debilitation.
Cal. Cal. Welf.& Inst. Code § Inpatient: (1) Danger to 5250 § 5008(h)(1) (West self/others; or (2) unable to 1998) § 5346(a) (West provide for basic personal Supp. 2005) needs of food, clothing, or shelter. Outpatient: Condition likely to substantially deteriorate, unlikely to survive safely in community without supervision, history of noncompliance, which includes two hospitalizations in past thirty-six months or act/threat/attempt of violence to self/others in forty-eight months immediately preceding petition filing, likely needs do not meet inpatient standard, and likely to benefit from assisted treatment.
Colo. X Colo. Rev. Stat. Ann. § Inpatient and Outpatient: (1) 27-10-111(1) § Danger to self/others; (2) in 27-10-102(5) (West danger of serious physical 2002) harm due to inability to provide essential human needs of food, clothing, shelter, and medical care; (3) cannot manage resources or conduct social relations so that health or safety significantly endangered and lacks capacity to understand this is so; or (4) criteria allowing for those in need of care because of pending loss of support of a relative who is a caregiver. Conn. Conn. Gen. Stat. Ann. § Inpatient: (1) Danger to 17a-498(c) § 17a-495(a) self/others; or (2) in danger (West 1998) of serious harm from inability to provide for basic needs such as essential food, clothing, shelter, or safety and unable to make a rational and informed decision concerning treatment. Del. Del. Code Ann. tit. 16, § Inpatient and Outpatient: Real 5001(6) tit. 16, § 5010 and present danger to (2003) self/others/property, in need of treatment, and unable to make responsible decisions with respect to hospitalization.
D.C. D.C. Code § 21-545(b) Inpatient and Outpatient: (2001) Danger to self/others.
Fla. Fla. Stat. Ann. § Inpatient: Unable or refuses to 394.467(1) (West 2002) make responsible decisions § 394.4655(1) (West with respect to voluntary Supp. 2005) placement for treatment and either (1) without treatment, incapable of surviving alone or with the help of willing family or friends, and likely to suffer from neglect or refuse to care for himself/herself that will pose a real and present threat of substantial harm to well-being; or (2) danger to self/others, as evidenced by recent behavior. Outpatient: Unlikely to survive safely in community without supervision, history of noncompliance, which includes two hospitalizations in past thirty-six months or acts/threat/attempt of violence to self/others in thirty-six months immediately preceding petition filing, unlikely to voluntarily participate, needs treatment to prevent relapse or deterioration likely to result in serious harm to self/others, and likely to benefit from assisted treatment.
Ga. X Ga. Code Ann. § Inpatient: In need of 37-3-1(9.1) § involuntary treatment and (1) 37-3-1(12.1) (1995) imminent danger to self/others, evidenced by recent overt acts or expressed threats of violence; or (2) unable to care for physical health and safety so as to create an imminently life-endangering crisis and in need of involuntary treatment. Outpatient: Based on treatment history or current mental status, requires outpatient treatment in order to avoid predictably and imminently becoming an inpatient and unable to voluntarily seek or comply with outpatient treatment.
Haw. X Haw. Rev. Stat. Ann. § Inpatient: In need of 334-60.2 § 334-121 treatment and either (1) (LexisNexis 2004) § imminent danger to 334-1 (LexisNexis Supp. self/others, including that 2004) of substantial emotional injuries to others; or (2) unable to provide for basic personal needs of food, clothing, or shelter, unable to make or communicate rational decisions concerning personal welfare, and lacking the capacity to understand that this is so; or (3) behavior and previous history indicate a disabling mental illness and unable to make rational decisions concerning treatment. Outpatient: Either previous inpatient hospital treatment for a severe mental disorder or substance abuse OR previously been imminently dangerous to self/others or meets no. (2) above and capable of surviving safely in the community with available supervision; based on the treatment history and current behavior, treatment is needed to prevent deterioration predictably resulting in imminent danger to self/others; unable to make a rational decision concerning treatment; and outpatient treatment ordered is likely to be beneficial.
Idaho X Idaho Code Ann. § Inpatient: (1) Danger to 66-329(k) (2000) § self/others; or (2) in danger 66-317(h), (k), (m) of serious physical harm due Supp. 2004)§66-339A to inability to provide for (2000) basic needs of nourishment, essential medical care, shelter, or safety. Outpatient: Without treatment likely to become danger to self/others or suffer substantial mental or emotional deterioration, lacks capacity to make informed treatment decisions, previous psychiatric hospitalization, previously failed to substantially comply with the prescribed course of outpatient treatment, and patient’s disorder likely to respond to the treatment.
Ill. 405 Ill. Comp. Stat. Inpatient and Outpatient: (1) Ann. § 5/1-119 (West Danger to self/others, Supp. 2005) explicitly including threatening behavior or conduct that places another individual in reasonable expectation of being harmed; or (2) unable to provide for basic physical needs so as to guard against serious harm without the assistance of others.
Ind. X Ind. Code Ann. § Inpatient: (1) danger to 12-7-2-53 § 12-7-2-96§ self/others; or in danger of 12-26-7-5(a)§12-26-14-1 coming to harm because either § 12-26-6-8(a) (2) unable to provide for (LexisNexis 2001) food, clothing, shelter, or other essential human needs OR (3) substantial impairment or obvious deterioration that results in inability to function independently. Outpatient: Same as for inpatient except must also be likely to benefit from the recommended outpatient treatment program and not be likely to meet inpatient standard if compliant with the recommended program. Iowa Iowa Code Ann. § 229.14 § Inpatient and Outpatient: 229.1(14), (15) (West Lacks sufficient judgment to 2000) make responsible decisions concerning treatment and is either (1) a danger to self/others, including that of serious emotional injuries to family members and others; or (2) unable to satisfy need for nourishment, clothing, essential medical care, or shelter so that it is likely that the person will suffer physical injury, physical debilitation, or death.
Kan. Kan. Stat. Ann. § Inpatient: Lacks capacity to 59-2946(f) § 59-2967(a) make informed decision (Supp. 2004) concerning treatment and either (1) danger to self/others/property; or (2) substantially unable to provide for basic needs, such as food, clothing, shelter, health, or safety. Outpatient: Same as for inpatient except must also be likely to comply with outpatient treatment order and not likely be danger to self/others/community while subject to outpatient treatment order.
Ky. Ky. Rev. Stat. Ann. § Inpatient and Outpatient: 202A.026 § 202A.011(2) Danger to self/others/family, (LexisNexis 1999 & including actions that Supp. 2004) deprive self/others/family of basic means of survival such as provision for reasonable shelter, food, or clothing; can reasonably benefit from treatment; and hospitalization is the least restrictive form of treatment available. La. La. Rev. Stat. Ann. § Inpatient and Outpatient: (1) 28:55(E)(1) (2001 & Danger to self/others; or (2) Supp. 2005) § 28:2(3), unable to provide for basic (4), (10) (2001) physical needs, such as essential food, clothing, medical care, and shelter, and unable to survive safely in freedom or guard against serious harm.
Me. X Me. Rev. Stat. Ann.tit. Inpatient: Inpatient 34-B, § 3864(6)(A) hospitalization is the best (1998 & Supp. 2004) available means for treatment tit. 34B, § 3801(4) of the patient, the court is (1998) satisfied with the submitted treatment plan and, based on recent actions or behavior, either (1) danger to self/others or (2) severe physical or mental impairment or injury likely to result without treatment, plus a determination that suitable community resources for care and treatment are unavailable.
Md. Md. Code Ann.,Health-Gen. Inpatient: Danger to § 10-632(e)(2) self/others, in need of (LexisNexis 2005) treatment, and unable or unwilling to be voluntarily admitted. Mass. Mass. Gen. Laws Ann. ch. Inpatient: (1) Danger to 123, § 8(a) ch. 123, § self/others; or (2) very 1 (West 2003 & Supp. substantial risk of physical 2005) impairment or injury because unable to protect himself/herself in the community.
Mich. X Mich. Comp. Laws Ann. § Inpatient and Outpatient: (1) 330.1401 (West 1999 & Danger to self/others; (2) Supp. 2005) unable to attend to basic physical needs such as food, clothing, or shelter necessary to avoid serious harm in the near future; or (3) unable to understand need for treatment and continued behavior reasonably expected to result in significant physical harm to self/others.
Minn. Minn. Stat. Ann. § Inpatient: A clear danger to 253B.09(1) § others or the likelihood of 253B.02(13)(a), (17) physical harm to self/others (West 2003 & Supp. as demonstrated by (1) 2005) § 253B.065(5)(b) failure to obtain necessary (West 2003) food, clothing, shelter, or medical care as a result of impairment; (2) inability to obtain necessary food, clothing, shelter, or medical care and is more probable than not will suffer substantial harm, significant psychiatric deterioration or debilitation, or serious illness; (3) a recent attempt or threat to harm self/others; or (4) recent, volitional conduct involving significant damage to property. Outpatient: Meets one of the criteria from the inpatient standard and either (1) manifestations interfere with ability to care for self and, when competent, would choose substantially similar treatment or (2) has had at least two court-ordered hospitalizations in past three years, exhibits symptoms/behavior substantially similar to those precipitating one or more of those hospitalizations, and reasonably expected to deteriorate to inpatient standard unless treated.
Miss. X Miss. Code Ann. § Inpatient and Outpatient: A 41-21-73(4) § substantial likelihood of 41-21-61(e) (1993 & physical harm to self/others Supp. 1999) as demonstrated by (1) a recent attempt or threat to harm self/others; or (2) failure to provide necessary food, clothing, shelter, or medical care. Explicitly includes person who, based on treatment history, is in need of treatment to prevent further disability or deterioration predictably resulting in danger to self/others if unable to make informed decisions concerning treatment.
Mo. Mo. Ann. Stat. § Inpatient and Outpatient: (1) 632.335(4) § 632.005(9) Likelihood of serious harm to § 632.350(5) (West 2000 self/others; (2) substantial & Supp. 2005) risk that serious physical harm will result due to an impairment in capacity to make treatment decisions, evidenced by inability to provide for basic necessities of food, clothing, shelter, safety, medical care, or necessary mental health care. Evidence may also include past patterns of behavior.
Mont. X Mont. Code Ann. § Inpatient and Outpatient: In 53-21-126(1) § determining whether the 53-21-127(7) § respondent requires 53-21-102(9)(a) (2005) commitment, the court shall consider the following: (1) whether substantially unable to provide for basic needs of food, clothing, shelter, health, or safety; (2) whether recently caused self-injury or injury to others; (3) whether because of a mental disorder, there is an imminent danger to self/others; and (4) whether the respondent’s mental disorder, demonstrated by the respondent’s recent acts or omissions, will, if untreated, predictably result in deterioration to meet considerations nos. (1), (2), or (3). Predictability may be established by the respondent’s relevant medical history. Commitments based solely on consideration no. 4 must be on an outpatient basis.
Neb. Neb. Rev. Stat. § Inpatient and Outpatient: (1) 71-925(1) § 71-925(4) § Danger to self/others, as 71-908 (2004) manifested by recent threats/acts of violence or (2) substantial risk of serious harm evidenced by inability to provide for basic human needs, including food, clothing, shelter, essential medical care, or personal safety.
Nev. Nev. Rev. Stat. Ann. § Inpatient: Clear and present 433A.310(1) (LexisNexis danger of harm to self/others 2000 & Supp. 2004) § and diminished capacity to 433A.115 (LexisNexis conduct affairs, social 2000) relations, or care for personal needs. Explicitly includes the inability, without assistance, to satisfy need for nourishment, personal/medical care, shelter, self-protection, or safety, which will result in a reasonable probability that death, serious bodily injury, or physical debilitation will occur within the next thirty days.
N.H. X N.H. Rev. Stat. Ann. § Inpatient and Outpatient: A 135-C:34 § 135-C:27 potentially serious (2005) likelihood of danger to self/others as evidenced by either (1) recent infliction of serious bodily injury, attempted suicide, or serious self-injury in last forty days, which is likely to reoccur without treatment; (2) threatened infliction of serious bodily injury on self in last forty days and without treatment likely will attempt serious self-injury; (3) lacks capacity to care for own welfare and a likelihood of death, serious bodily injury, or serious debilitation; (4) severely mentally disabled for at least one year, involuntary admission within last two years, refusal of necessary treatment and substantial probability that refusal will lead to death, serious bodily injury, or serious debilitation; or (5) threatened, attempted or actual act of violence in last forty days.
N.J. N.J. Stat. Inpatient: Danger to Ann.§30:4-27.2(h), (i), self/others/property, (m), (r) (West 1997) unwilling to be admitted voluntarily, and in need of treatment. Danger to self explicitly includes the inability, without assistance, to satisfy need for nourishment, essential medical care, or shelter.
N.M. N.M. Stat. Ann. § Inpatient: Danger to 43-1-11(C) (2000 & self/others, likely to Supp. 2002)§43-1-3(M), benefit from treatment, and (N) (2000) proposed commitment is consistent with treatment needs and least drastic means. Harm to self includes
grave passive neglect. N.Y. X N.Y. Mental Hyg. Law § Inpatient: Danger to 9.31(c) § 9.01 (Consol. self/others, treatment in 1989 & Supp. hospital is essential to 2005)§9.60(C) (Supp. welfare, and is unable to 2005) understand need for care and treatment. Outpatient: Unlikely to survive safely in community without supervision, history of noncompliance, which includes two hospitalizations in past thirty-six months or acts/threat/attempt of violence to self/others in forty-eight months immediately preceding petition filing, unlikely to voluntarily participate, needs treatment to prevent relapse or deterioration likely to result in serious harm to self/others, and likely to benefit from assisted treatment.
N.C. X N.C. Gen. Stat. § Inpatient: Danger to 122C-268(j) § self/others/property. 122C-3(11) § Explicitly includes 122C-267(h) § reasonable probability of 122C-263(d)(1) § suffering serious physical 122C-271(a) (LexisNexis debilitation from the 2003) inability to, without assistance, either exercise self-control, judgment, and discretion in conduct and social relations; or satisfy need for nourishment, personal or medical care, shelter, or self-protection and safety. Outpatient: Capable of surviving safely in community with available supervision, in need of treatment to prevent further deterioration predictably resulting in dangerousness, and inability to make informed decision to seek/comply with voluntary treatment.
N.D. X N.D. Cent. Code § Inpatient and Outpatient: 25-03.1-07 (2002) § Danger to 25-03.1-02(12) (Supp. self/others/property if not 2005) treated. Serious risk of harm includes substantial likelihood of deterioration in physical health/substantial injury/disease/death, based upon recent poor self-control or judgment in providing shelter/nutrition/personal care; or substantial deterioration in mental health predictably resulting in danger to self/others/property based upon objective facts of loss of cognitive or volitional control over thoughts or actions or based upon history, current condition, effect of mental condition on ability to consent.
Ohio Ohio Rev. Code Ann. § Inpatient and Outpatient: (1) 5122.15(C) § 5122.01(B) Danger to self/others; (2) (LexisNexis 2004) substantial and immediate risk of serious physical impairment or injury to self as manifested by inability to provide for basic physical needs and provision for needs is unavailable in community; or (3) needs and would benefit from treatment as evidenced by behavior creating grave and imminent risk to substantial rights of others/self.
Okla. X Okla. Stat. Ann. tit. Inpatient and Outpatient: (1) 43A, § 1-103(13)a (West Risk of harm to self/others; Supp. 2006) (2) person appears to require inpatient treatment for schizophrenia, bipolar disorder, or major depression with suicidal intent, and treatment is reasonably believed to prevent progressively more debilitating mental impairment.
Or. X Or. Rev. Stat. § Inpatient and Outpatient: 426.005(1)(d) (2003) (1) Danger to self/others; (2) unable to provide for basic personal needs and is not receiving care necessary for health/safety; or (3) chronic mental illness, two hospitalizations in previous three years, symptoms/behavior substantially similar to those that led to the previous hospitalizations, and will continue to physically or mentally deteriorate to either standard (1) or (2) if untreated.
Pa. 50 Pa. Stat. Ann. § Inpatient and Outpatient: Clear 7301(a), (b) § 7304(a), and present danger to (f) (West 2001) self/others; includes inability, without assistance, to satisfy need for nourishment, personal or medical care, shelter, or self-protection and safety, and reasonable probability that death, serious bodily injury, or serious physical debilitation would ensue within thirty days unless adequate treatment was afforded. R.I. R.I. Gen. Laws § Inpatient and Outpatient: In 40.1-5-8(j) § 40.1-5-2 need of care/treatment in a (7)(i) (1997) facility and, if unsupervised in the community, would be a danger to self/others. Explicitly includes substantial risk of harm manifested by grave, clear, and present risk to physical health and safety.
S.C. X S.C. Code Ann. § Inpatient and Outpatient: 44-17-580 § Needs treatment and either is 44-23-10(1), (2) (2002) (1) unable to make responsible decisions with respect to treatment; or (2) likelihood of serious harm to self/others, including the substantial risk of physical impairment from inability to protect oneself in community and provisions for protection are unavailable.
S.D. X S.D. Codified Laws § Inpatient and Outpatient: 27A-1-2 § 27A-1-1 (4), Danger to self/others, as (5) (2004) evidenced by treatment history and recent acts, and needs and is likely to benefit from treatment. Danger to self includes danger of serious personal harm in the near future evidenced by inability to provide for some basic human needs such as food, clothing, shelter, physical health, personal safety, or arrests for criminal behavior due to mental illness.
Tenn. Tenn. Code Ann. § Inpatient: Substantial 33-6-501 (2001) likelihood of serious harm, which includes the inability to avoid severe impairment or injury from specific risks. Tex. X Tex. Health &Safety Code Inpatient: (1) Danger to Ann. § 574.034 (Vernon self/others; or (2) severe 2003) § 574.035 (Vernon and abnormal mental, 2003 & Supp. 2005) emotional, or physical distress; substantial mental or physical deterioration of ability to function independently, exhibited by the inability to provide for basic needs, including food, clothing, health, or safety; and inability to make rational and informed treatment decisions. Outpatient: (1) Danger to self/others; or (2) severe and persistent mental illness; if untreated will suffer severe and abnormal mental, emotional, or physical distress; and deterioration of the ability to function independently and inability to live safely in community; and inability to voluntarily and effectively participate in outpatient treatment as demonstrated by actions of past two years or the inability to make an informed treatment decision.
Utah Utah Code Ann. § Inpatient and Outpatient: 62A-15-631(10) § Inability to make rational 62A-15-602(12) § treatment decision and 62A-15-602(13) (Supp. immediate danger to 2005) self/others, explicitly including both inability to provide basic necessities such as food, clothing, and shelter and substantial risk of extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of mental faculty.
Vt. X Vt. Stat. Ann. tit. 18, § Inpatient and Outpatient: 7611 tit. 18, § (1) Danger to self/others; 7101(16) tit. 18, § and (2) a patient who is 7101(17) (2000) receiving adequate treatment, and who, if such treatment is discontinued, is likely to deteriorate to the standard in (1). Danger to others includes presenting a danger to persons in his/her care. Danger to self can be the inability, without assistance, to satisfy need for nourishment, personal or medical care, shelter, or self-protection and safety, so that probable death, substantial physical bodily injury, serious mental deterioration or physical debilitation or disease will ensue unless adequate treatment is afforded.
Va. Va. Code Ann. § Inpatient: (1) Imminent 37.1-67.3(I) § danger to self/others; or (2) 37.1-67.3(J) (Supp. so seriously mentally ill as 1996 & Supp. 2005) to be substantially unable to care for self. Outpatient: Same as for inpatient plus is competent to understand the stipulations of treatment, wants to live in community and agrees to abide by treatment plan, and has the capacity to comply with treatment plan; ordered treatment can be delivered on outpatient basis and can be monitored by community services board or designated providers.
Wash. X Wash. Rev. Code Ann. § Inpatient: (1) Danger to 71.05.240 § self/others/property; or (2) 71.05.020(19) § in danger of serious physical 71.05.020(14) § harm from failure to provide 71.05.020(16) § for essential human needs of 71.05.020(32) (West health or safety; or (3) 2002) severe deterioration in routine functioning evidenced by loss of cognitive or volitional control and not receiving essential care. Outpatient: Same as inpatient, if outpatient treatment is in best interest of person.
W. Va. W. Va. Code Ann. § Inpatient and Outpatient: 27-5-4(j) § 27-1-12 Danger to self/others. Danger (LexisNexis 2004) to others includes presenting a danger to persons in his/her care. Danger to self can be the inability, without assistance, to satisfy need for nourishment, personal or medical care, shelter, or self-protection and safety, so that probable death, substantial physical bodily injury, serious mental deterioration or physical debilitation or life-threatening disease will ensue. Note: Applications for final commitment must state, in detail, the recent overt acts upon which a danger to self/others conclusion is based.
Wis. X Wis. Stat. Ann. § Inpatient and Outpatient: (1) 51.20(1)(a)1 § Danger to self/others as 51.20(1)(a)2 (West 2003 evidenced by recent acts/threats; (2) substantial probability of physical impairment/injury to self as evidenced by recent acts/omissions; (3) inability to satisfy basic needs for nourishment, medical care, shelter, or safety so that substantial probability of imminent death, serious physical injury, serious physical debilitation, or serious physical disease; or (4) substantial inability to make informed treatment choice, needs care or treatment to prevent deterioration, and substantial probability that if untreated will lack services for health or safety and suffer severe mental, emotional, or physical harm that will result in the loss of ability to function in community or loss of cognitive or volitional control over thoughts or actions.
Wyo. X Wyo. Stat. Ann. § Inpatient and Outpatient: 25-10-110(j) § (1) Danger to self/others; 25-10-101(a)(ix) § (2) unable, without available 25-10-101(a)(ii) § assistance, to satisfy basic 25-10-110(j)(ii) (2005) needs for nourishment, essential medical care, shelter, or safety so it is likely that death, serious physical injury, serious physical debilitation, serious mental debilitation, destabilization from lack of or refusal to take prescribed psychotropic medications for a diagnosed condition or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment.’
[FNa1]. Steven K. Erickson, L.L.M. Candidate, Harvard Law School; SUNY Buffalo, J.D.; SUNY Buffalo, Ph.D.; Michael J. Vitacco, Associate Director of Research, Mendota Mental Health Institute; University of North Texas, Ph.D.; Gregory J. Van 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 47 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Rybroek, CEO, Mendota Health Institute; University of Wisconsin-Madison, J.D.; University of Wisconsin-Madison, Ph.D. The authors wish to thank E. Fuller Torrey, J. Steven Lamberti, J. Richard Ciccone, Amy T. Campbell, and Catherine Cerulli for their thoughtful comments on earlier drafts of this paper. The views expressed herein are entirely the authors and not necessarily the views of the Department of Health and Family Services. [FN1]. See generally Gary B. Melton, John Petrila, Norman G. Poythress & Christopher Slobogin, Psychological Evaluations for the Courts 297-306 (2d ed. 1997). [FN2]. Michael L. Perlin, The Hidden Prejudice: Mental Disability on Trial 79 (2000); see also Lessard v. Schmidt, 349 F. Supp. 1078, 1084-86 (E.D. Wis. 1972), vacated, 414 U.S. 473 (1976) (discussing the history of the state’s use of its parens patriae and police powers in confining the mentally ill); Xavier F. Amador & Anthony S. David, Insight & Psychosis 332-47 (1998) (describing how lack of insight is a hallmark feature of most psychotic illnesses, including schizophrenia, and likely has a biological basis); Darold A. Treffert, The Macarthur Coercion Studies: A Wisconsin Perspective, 82 Marq. L. Rev. 759, 760-65 (1999) (stating that the reduction of the state’s parens patriae power has had significant impact on the treatment of the seriously mentally ill, which has resulted in a loss of ability of psychiatrists to involuntarily hospitalize patients who are in need of treatment but lack insight into their illness). [FN3]. See Ilissa L. Watnik, A Constitutional Analysis of Kendra’s Law: New York’s Solution for Treatment of the Chronically Mentally Ill, 149 U. Pa. L. Rev. 1181, 1184-88 (2001); E. Fuller Torrey, Outpatient Commitment: What, Why, and for Whom, 52 Psychiatric Services 337, 337-41 (2001). There has been a significant increase in states that have adopted involuntary outpatient treatment programs despite the paucity of research as to its long-term effectiveness. See Virginia Aldige Hiday, Outpatient Commitment: The State of Empirical Research on its Outcomes, 9 Psychol. Pub. Pol’y & L. 8, 8-14 (2003); see also M. Susan Ridgely, Randy Borum & John Petrila, The Effectiveness of Involuntary Outpatient Treatment: Empirical Evidence and the Experience of Eight States (2001). [FN4]. See E. Fuller Torrey, Out of the Shadows: Confronting America’s Mental Illness Crisis (1997); see generally Lessard, 349 F. Supp. at 1084- 86; Hiday, supra note 3; James L. Werth, U.S. Involuntary Mental Health Commitment Statutes: Requirements for Persons Perceived to be a Potential Harm to Self, 31 Suicide & Life-Threatening Behav. 348, 352-56 (2001); Christopher Slobogin, Involuntary Community Treatment of People Who Are Violent and Mentally Ill: A Legal Analysis, 45 Hosp. & Community Psychiatry 685 (1994). [FN5]. In re LaBelle, 728 P.2d 138, 145 (Wash. 1986). [FN6]. 349 F. Supp. 1078. [FN7]. Id. [FN8]. In re Commitment of Dennis H., 647 N.W.2d 851 (Wis. 2002); see Mental Health Act, Wis. Stat. § 51.20(1)(a)2.e. (1999-2000). [FN9]. Kessler Ronald et al., The Prevalence and Correlates of Untreated Serious Mental Illness, 36 Health Services Res., 987, 989-1007 (2001) (reporting fifty-four percent of persons with severe mental illnesses went untreated within the past twelve months); Narrow et al., Mental Health Service Use by Americans with Severe Mental Illnesses, 35 Soc. Psychiatry & Psychiatric Epidemiology 147, 147-55 (2000) (reporting a forty-two percent prevalence rate of untreated severe mental illnesses). 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 48 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN10]. See Peter J. Weiden et al., Partial Compliance and Risk of Rehospitalization Among California Medicaid Patients with Schizophrenia, 55 Psychiatric Services 886 (2004) (showing a direct correlation between partial treatment compliance and hospitalization rates among people with schizophrenia); Thomas W. Haywood et al., Predicting the “Revolving Door” Phenomenon Among Patients with Schizophrenic, Schizoaffective, and Affective Disorders, 152 Am. J. of Psychiatry 856, 856 (1995) (reporting results that show a strong association between treatment noncompliance among persons with schizophrenia and hospitalization rates); Jonathan P. Lacro et al., Prevalence of and Risk Factors for Medication Nonadherence in Patients with Schizophrenia: A Comprehensive Review of the Recent Literature, 63 J. Clinical Psychiatry 892, 893-99 (2002) (discussing risk factors associated with treatment noncompliance). [FN11]. Steven R. Hirsch & Daniel Weinberger, Schizophrenia (2d ed. 2000). [FN12]. John DeQuardo et al., Patterns of Substance Abuse in Schizophrenia: Nature and Significance, 28 J. Psychiatric Res. 267, 268-75 (1994) (discussing substance abuse and its relation to treatment compliance and prognosis); Beth E. Heyscue et al., Compliance With Depot Antipsychotic Medication by Patients Attending Outpatient Clinics, 49 Psychiatric Services 1232, 1233-34 (1988) (discussing substance abuse as a marker for poor treatment compliance with persons with schizophrenia). [FN13]. Robert Drake, Michael Wallach & J. Schuyler Hoffman, Housing Instability and Homelessness Among Aftercare Patients of an Urban State Hospital, 40 Hosp. & Comty. Psychiatry 46, 50 (1989) (reporting homelessness and treatment noncompliance as highly associated variables). [FN14]. Lisa Goodman et al., Physical and Sexual Assault History in Women with Serious Mental Illness: Prevalence, Correlates, Treatment, and Future Research Directions, 23 Schizophrenia Bull. 685, 685 (1997) (discussing the associations between treatment alliance and victimization among persons with severe mental illnesses). [FN15]. Malgorzata Rzewuska, Drug Maintenance Treatment Compliance and its Correlation With the Clinical Picture and Course of Schizophrenia, 26 Progress in Neuro-Psychopharmacology & Biological Psychiatry 811, 811-12 (2002) (reporting a worse prognosis for persons with schizophrenia who have histories of treatment noncompliance). [FN16]. J. Steven Lamberti, Robert Weisman & Dara Faden, Forensic Assertive Community Treatment: Preventing Incarceration of Adults with Severe Mental Illness, 55 Psychiatric Services 1285, 1286 (discussing the history of assertive community treatment models for persons with severe mental illnesses). [FN17]. Wis. Stat. § 51.20(1)(a)2.e. (1999-2000). [FN18]. See Wis. Stat. § 51.20(1)(a)2.a.-e. (1999-2000); Treffert, supra note 2, at 759, 768 (explaining that Wisconsin has two “gravely disabled” standards, which is unusual as most states have one). Treffert argues that the third standard is a gravely disabled standard because it is predicated on physical harm to self much as the fourth standard requires. Id. [FN19]. Wis. Stat. § 51.20(1)(a)2.e. (1999-2000). [FN20]. Id. [FN21]. Id. [FN22]. Within the past two decades, there has been an increasing tendency for mental health law and practice to aim for community treatment as the main objective in the treatment of severe mental disorders. See generally Torrey, supra note 3, at 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 49 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 337-41. [FN23]. See Wis. Stat. § 51.20(1)(a)2.a.-c. (1999-2000). Typically, the early “reformed” or post-Lessard involuntary commitment statutes in the United States allowed commitment only when a person presented imminent dangerousness to self or others. “Dangerousness” was defined narrowly to permit involuntary commitment in limited situations and represented a shift from the parens patriae thrust of mental health law towards predominantly a use of the state’s police powers to protect the public from the “dangerously mentally ill.” Many states subsequently required an “overt act” of dangerousness before a petition for involuntary commitment would be considered. However, legislatures and courts struggled to define what constituted an “overt act” with many jurisdictions progressively broadening its meaning. See Treffert, supra note 2, at 759-73; Kathleen Winchell, The Need to Close Kentucky’s Revolving Door: Proposal for a Movement Towards a Socially Responsible Approach to Treatment and Commitment of the Mentally Ill, 29 N. Ky. L. Rev. 189, 202-06 (2002); see generally Slobogin, supra note 4, at 685. [FN24]. 647 N.W.2d 851 (Wis. 2002). [FN25]. Id. at 864. [FN26]. This is a clear departure from the holding in Lessard, which de-emphasized the state’s parens patriae power in civil commitment law and put narrow restrictions of the state’s use of its police powers as well. As one critic has indicated, the restrictive civil commitment laws that flowed from Lessard and its progeny led to a perhaps ironic result: minimization of the state’s parens patriae power at a time when effective treatments for severe mental illnesses became available. Whereas in the past, civil commitments of the mentally ill were predominately utilized to protect the public from the dangerously mentally ill (a function of the state’s police powers), it was paradoxical that once effective treatment became available, the state’s authority to administer treatment was greatly hampered. See Treffert, supra note 2, at 768-69. [FN27]. See Michael L. Perlin, The Hidden Prejudice: Mental Disability on Trial (2000); see also Torrey, supra note 4. [FN28]. See Michael J. Leiber & Sean Anderson, A Comparison of Pre-Reform and Post-Reform Civil Commitment Decsionmaking in Dane County, Wisconsin, 20 New Eng. J. on Crim. & Civ. Confinement 1, 1-20 (1993); see also Treffert, supra note 2, at 763-67. [FN29]. See Mental Health Act, Wis. Stat. § 51.065(1) (1971), vacated, Act of Aug. 4, 1976, ch. 430, § 11, 1975 Wis. Sess. Laws 1419, 1423-38. [FN30]. Id. [FN31]. Perlin, supra note 2, at 79-109. [FN32]. Id. [FN33]. See Leiber & Anderson, supra note 28. [FN34]. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated, 414 U.S. 473 (1976); see Wis. Stat. § 51.04(1) (1971). [FN35]. 349 F. Supp. 1078. 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 50 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN36]. Id. at 1103. [FN37]. Id. at 1081. [FN38]. Id. [FN39]. Id. [FN40]. Id. [FN41]. Id. at 1088. [FN42]. Id. [FN43]. Id. [FN44]. Id. [FN45]. Id. at 1084. [FN46]. Id. at 1084-86. [FN47]. Id. at 1087. [FN48]. Interestingly, since the reform of state commitment statutes in the 1970s, the predominant forensic psychological examination in which experts are utilized by the courts is to help the court determine whether a defendant is competent to proceed. Recently, there has been renewed debate as to whether a person can be forcibly medicated to restore competency, including an interest by the United States Supreme Court. See Sell v. United States, 539 U.S. 166 (2003) (holding that forced medication to restore incompetent defendant is permissible when the charges are serious, the medication’s side effects are substantially unlikely to undermine the trial process, and it is needed to further an important governmental interest). [FN49]. Lessard v. Schmidt, 349 F. Supp. 1078, 1094 (E.D. Wis. 1972), vacated, 414 U.S. 473 (1976). [FN50]. Id. at 1091. [FN51]. In re Gault, 387 U.S. 1 (1967). [FN52]. Lessard, 349 F. Supp. at 1089. [FN53]. Id. at 1103; see also Michael L. Perlin et al., Therapeutic Jurisprudence and the Civil Rights of Institutionalized Mentally Disabled Persons: Hopeless Oxymoron or Path to Redemption?, 1 Psychol., Pub. Pol’y & L. 80, 88-89 (1995) (explaining that the court in Lessard sought to extend due process safeguards that were commonly given to criminal defendants). [FN54]. Lessard, 349 F. Supp. at 1103. [FN55]. Id. [FN56]. Robert F. Schopp, Competence, Condemnation, and Commitment: An Integrated Theory of Mental Health Law 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 51 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. (2001). [FN57]. Wis. Stat. § 51.20 (1975). [FN58]. Id. [FN59]. Wis. Stat. § 51.20(1)(a)2.a. (1975). [FN60]. Wis. Stat. § 51.20(1)(a)2.b. (1975). [FN61]. Wis. Stat. § 51.20(1)(a)2.c. (1975). [FN62]. Wis. Stat. § 51.20(8) (1975). [FN63]. Lessard v. Schmidt, 349 F. Supp. 1078, 1091 (E.D. 1972), vacated, 414 U.S. 473 (1976). [FN64]. Wis. Stat. § 51.20(1)(a)2.c. (1975). [FN65]. Wis. Stat. § 51.20(1)(a)2.d. (1979). [FN66]. Id. [FN67]. See Treffert, supra note 2, at 766-70; see also Winchell, supra note 23, at 192-94 (describing the national movement in the 1980’s to broaden civil commitment criteria); G.A. Fernandez & S. Nyard, Impact of Involuntary Outpatient Commitment on the Revolving-Door Syndrome in North Carolina, 41 Hosp. & Cmty. Psychiatry 1001, 1001-03 (1990) (asserting that involuntary outpatient commitment can reduce hospital readmission rates among the seriously mentally ill); Jeffery Geller, Treating Revolving-Door Patients Who Have “Hospitalphilia”: Compassion, Coercion, and Common Sense, 44 Hosp. & Cmty. Psychiatry 141 (1993) (asserting that current involuntary commitment statutes have produced a sub-group of psychiatric patients who frequently require inpatient hospitalization); Jeffery Green, Frequent Rehospitalization and Noncompliance with Treatment, 39 Hosp. & Comty. Psychiatry 963 (1988) (stating that treatment noncompliance is the leading cause of re-hospitalization among the mentally ill); see generally Robert E. Drake, M.A. Wallach & J. Hoffman, Housing Instability and Homelessness Among Aftercare Patients of An Urban State Hospital, 40 Hosp. & Cmty. Psychiatry 46, 46-50 (1989) (discussing the endemic problem of homelessness among the seriously mentally ill); Werth, supra note 4, at 348-55 (discussing variation among current commitment statutes). [FN68]. These protocols rely on short inpatient stays, with the primary goals of restarting psychotropic medication to control acute psychiatric symptoms and returning patients quickly back to the community. Critics have contended that psychiatric stabilization protocols often return patients to the same disruptive environments that contributed to their relapse. Moreover, hospitals have been criticized for discharging patients while they are still suffering from acute psychiatric symptoms. See generally Torrey, supra note 4. [FN69]. See Elana H. Margolis, The Failure of Civil Confinement: How Russell E. Weston, Jr. Slipped Through the Cracks and the Potential for Many More to Follow, 26 New Eng. J. on Crim. & Civ. Confinement 129, 141-42 (2000). [FN70]. See Treffert, supra note 2, at 761-77. [FN71]. See Winchell, supra note 23, at 192-200. 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 52 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN72]. As late as 1990, only nineteen empirical studies had been published on insight in psychotic patients. More than seventy studies were available, only five years later, when the Fifth Standard was enacted. See Xavier F. Amador, I Am Not Sick I Don’t Need Help! 174-75 (2000). [FN73]. Xavier Amador et al., Awareness of Illness in Schizophrenia and Schizoaffective and Mood Disorders, 51 Archives of Gen. Psychiatry 826 (1994); Foo Lin, Ralph Spiga & William Fortsch, Insight and Adherence to Medication in Chronic Schizophrenics, 40 J. Clinical Psychiatry 430 (1979). [FN74]. Wis. Stat. § 51.20(1)(a)2.e. (1999-2000). [FN75]. See id. [FN76]. In re Commitment of Dennis H., 647 N.W.2d 851, 858 (Wis. 2002). [FN77]. Id. at 855. [FN78]. Id. [FN79]. Id. [FN80]. Id. (quoting the circuit court). [FN81]. Id. at 856 (quoting the circuit court). [FN82]. Id. (quoting the circuit court). [FN83]. Id. [FN84]. Id. [FN85]. Id. at 857. [FN86]. Id. at 855. [FN87]. Id. [FN88]. Id. at 858; see Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. 1972), vacated, 414 U.S. 473 (1976). [FN89]. Dennis H., 647 N.W.2d at 858. [FN90]. Id. at 858-59 (quoting Wis. Stat. § 51.20(1)(a)2.e. (1999- 2000)). [FN91]. Id. [FN92]. Id. [FN93]. 597 N.W.2d 697 (Wis. 1999). [FN94]. Dennis H., 647 N.W.2d at 859 (quoting In re Commitment of Curiel, 597 N.W.2d at 709). 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 53 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN95]. See generally Paul S. Appelbaum & Thomas Grisso, Assessing Patients’ Capacities to Consent to Treatment, 319 New Eng. J. Med. 1635 (1988) (discussing the prevalence and frequency of patients who are incompetent to make treatment decisions). [FN96]. Dennis H., 647 N.W.2d at 857 (quoting section 51.20(1)(a) 2.e. of the Wisconsin Statutes). [FN97]. Id. at 860 (commenting on section 51.20(1)(a)2.e. of the Wisconsin Statutes). [FN98]. The vast majority of people with serious mental illness receive their care in the community. The development of community care programs has been the focus of much research. See generally Kim T. Mueser et al., Models of Community Care for Severe Mental Illness: A Review of Research on Case Management, 24 Schizophrenia Bull. 37, 37-44 (1998); Lisa Dixon et al., Assertive Community Treatment and Medication Compliance in the Homeless Mentally Ill, 154 Am. J. of Psychiatry 1302 (1997) (reporting that certain community-based interventions, which rely on small doctor to patient ratios, inter alia, can be successful in improving medication compliance among the seriously mentally ill); Susan D. Phillips et al., Moving Assertive Community Treatment Into Standard Practice, 52 Psychiatric Services 771, 775-77 (2001). [FN99]. Dennis H., 647 N.W.2d at 859 (quoting section 51.20(1)(a) 2.e. of the 1999-2000 Wisconsin Statutes). [FN100]. Id. [FN101]. Id. [FN102]. In re Commitment of Curiel, 597 N.W.2d 697, 708-09 (Wis. 1999). [FN103]. Dennis H., 647 N.W.2d at 859 (quoting Curiel, 597 N.W.2d at 709). [FN104]. Id. [FN105]. Id. [FN106]. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated, 414 U.S. 473 (1976). [FN107]. Dennis H., 647 N.W.2d at 860. [FN108]. See Wis. Stat. § 51.20(1)(a)2.e. (1999-2000). [FN109]. Dennis H., 647 N.W.2d at 859-60 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). [FN110]. 407 N.W.2d 533 (Wis. 1987). [FN111]. Dennis H., 647 N.W.2d at 860 (quoting Bachowksi, 407 N.W.2d at 539). [FN112]. 509 U.S. 312 (1993). [FN113]. Dennis H., 647 N.W.2d at 855 (quoting Heller v. Doe, 509 U.S. at 333). [FN114]. 541 N.W.2d 115 (Wis. 1995). [FN115]. Dennis H., 647 N.W.2d at 862-63. 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 54 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN116]. Id. at 860. [FN117]. Joseph M. Livermore, Carl P. Malmquist, & Paul E. Meehl, On the Justification for Civil Commitment, 117 U. Pa. L. Rev. 75 (1968). [FN118]. See Richard Keefe & Philip D. Harvey, Understanding Schizophrenia: A Guide to the New Research on Causes and Treatment 283 (1994); Hirsch & Weinberger, supra note 11. [FN119]. See Paul S. Appelbaum, Almost A Revolution: Mental Health Law and the Limits of Change (1994); Henry J. Steadman et al., Violence by People Discharged From Acute Psychiatric Inpatient Facilities and by Others in the Same Neighborhoods, 55 Archives of Gen. Psychiatry 389, 393 (1998). [FN120]. Dennis H., 647 N.W.2d at 860. [FN121]. Wis. Stat. § 51.20(1)(a)2.e. (1999-2000). [FN122]. Wis. Stat. § 51.20(1)(a)2.a.-d. (1999-2000). [FN123]. Dennis. H., 647 N.W.2d at 860. [FN124]. Id. [FN125]. Id. (quoting Wis. Stat. § 51.20(1)(a)2.e.). [FN126]. Id. [FN127]. Id. at 860-61 (emphasis in original). [FN128]. Id. at 861. [FN129]. Id. (citing Graham v. Richardson, 403 U.S. 365, 371 (1971)). [FN130]. Id. [FN131]. Id. at 861-62. [FN132]. Id. [FN133]. Id. at 862. [FN134]. 422 U.S. 563 (1975). [FN135]. Dennis H., 647 N.W.2d at 862 (quoting Donaldson, 422 U.S. at 574, n.9) (emphasis added). [FN136]. Id. at 863. [FN137]. 541 N.W.2d 115 (Wis. 1997). [FN138]. Dennis H., 647 N.W.2d at 863 (quoting Post, 541 N.W.2d at 122- 23). 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 55 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN139]. See Peter Fischer & William Breakey, Homelessness and Mental Health: An Overview, 14 Int’l J. Mental Health 6 (1986). [FN140]. See Aileen B. Rothbard & Eri Kuno, The Success of Deinstitutionalization, 23 Int’l J.L. & Psychiatry 329, 330 (2000) (stating that the number of patients in psychiatric hospitals has fallen from 186 per 100,000 in 1969 to thirty-three per 100,000 in 1992). [FN141]. See John Monahan et al., Mandated Community Treatment: Beyond Outpatient Commitment, 52 Psychiatric Services 1198, 1202-04 (2001); Teresa L. Scheid-Cook, Outpatient Commitment as Both Social Control and Least Restrictive Alternative, 32 Soc. Q. 43, 43-50 (1991). [FN142]. See Perlin, supra note 2, at 79. [FN143]. See Treffert, supra note 2, at 759. [FN144]. Id. at 760-66. [FN145]. See Deborah K. Padgett & E.L. Struening, Victimization and Traumatic Injuries Among the Homeless: Associations with Alcohol, Drug, and Mental Problems, 62 Am. J of Orthopsychiatry 525, 533-34 (1992); Goodman et al., supra note 14. [FN146]. See Rael J. Issac & Samuel J. Brakel, Subverting Good Intentions: A Brief History of Mental Health Law ‘Reform,’ 2 Cornell J.L. & Pub. Pol’y 89, 110-11 (1992). [FN147]. Treffert, supra note 2, at 760-66. [FN148]. See Appelbaum, supra note 119, at 17-70; Steadman et al., supra note 119. [FN149]. See generally Torrey, supra note 4. [FN150]. Substance abuse by the mentally ill is associated with an increased risk of violent victimization. See David J. Sells et al., Violent Victimization of Persons with Co-Occurring Psychiatric and Substance Use Disorders, 54 Psychiatric Services 1253, 1253-56 (2003). [FN151]. See Fischer & Breakey, supra note 139, at 10-22; L. Gelberg & B. Leake, Mental Health, Alcohol and Drug Use, and Criminal History Among Homeless Adults, 145 Am. J. Psychiatry 145, 191-96 (1988). [FN152]. See Robert D. Miller, Need-for-Treatment Criteria for Involuntary Civil Commitment: Impact in Practice, 149 Am. J. of Psychiatry 1380 (1992); Rael J. Issac & Virginia C. Armat, Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally Ill (2000). [FN153]. See Lamberti, Weisman & Faden, supra note 16, at 1285-88. [FN154]. In fact, there exist numerous advanced imaging technologies that can assess structural and functional impairments in the brain. Moreover, many abnormalities can be seen in people with mental disorders using these technologies. See Tonmoy Sharma & Xavier Chitis, Brain Imaging in Schizophrenia 1 (2000). [FN155]. For the past two decades there has been a debate within the neuroscience community as to whether mental disorders 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 56 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. like schizophrenia are predominantly neurodevelopmental or genetic disorders. Whatever the case, there is overwhelming evidence that people with severe mental disorders have substantial brain abnormalities, both structural and functional, that change over time. Compare Paul M. Thompson et al., Mapping Adolescent Brain Change Reveals Dynamic Wave of Accelerated Gray Matter Loss in Very Early-Onset Schizophrenia, 98 Proc. of the Nat’l Acad. of Sci. 11650, 11650-55 (2001) with Daniel R. Weinberger, Implications of Normal Brian Development for the Pathogenesis of Schizophrenia, 44 Archives Gen. Psychiatry 660, 660-65 (1987); see generally Michael J. Owen, Michael C. O’Donovan & Irving I. Gottesman, Schizophrenia, in Psychiatric Genetics and Genomics 247, 247-66 (2002). [FN156]. See Amador & David, supra note 2, at 332-47 (1998) (stating the lack of insight is a key feature of psychotic disorders). [FN157]. Id. [FN158]. See Michael F. Green & Keith H. Nuechterlein, Should Schizophrenia Be Treated as a Neurocognitive Disorder?, 25 Schizophrenia Bull. 309, 309-15 (1999) (arguing that there is compelling evidence that severe mental disorders are associated with substantial decrements in cognitive abilities); Micahel F. Green et al., Neurocognitive Deficits and Functional Outcome in Schizophrenia: Are We Measuring the “Right Stuff” ?, 26 Schizophrenia Bull. 119, 119-30 (2001) (asserting that psychiatric assessment should include more evaluation of cognitive abilities as they are often a marker of severe mental illnesses); Donald A. Young et al., Further Parameters of Insight and Neuropsychological Deficit in Schizophrenia and Other Chronic Disease, 186 J. Nervous & Mental Disease 44, 44-48 (1998). [FN159]. See Amador & David, supra note 2, at 332-47. [FN160]. See Stephan P. Salloway et al., The Frontal Lobes and Neuropsychiatric Illness 187-98 (2001). [FN161]. See Thomas S. Szasz, The Myth of Mental Illness (1974). [FN162]. See Paul Appelbaum, Thinking Carefully About Outpatient Commitment, 52 Psychiatric Services 347, 348-50 (2001). [FN163]. Such acts of violence can negatively effect peoples’ perceptions of the mentally ill. See Mathias C. Angermeyer & Herbert Matchinger, Violent Attacks on Public Figures by Persons Suffering from Psychiatric Disorders: Their Effect on the Social Distance Towards the Mentally Ill, 245 Eur. Archives of Psychiatry & Clinical Neuroscience 15 (1995). [FN164]. N.Y. Mental Hyg. Law § 9.60 (2004) (repealed 2005); Marc Santora, Court Upholds Law for Forced Treatment, N.Y. Times, Feb. 18. 2004, at B4. [FN165]. The National Alliance for the Mentally Ill is the largest of these organizations. It was founded by families of people with severe mental illnesses and supports the adoption of broader commitment laws, including outpatient commitment laws. See National Alliance for the Mentally Ill, Public Policy Platform, http://www.nami.org/template.cfm?section=NAMI_-Policy_ Platform (last visited Nov. 23, 2004); but cf. Bazelon Center for Mental Health Law, Position Statement, http:// www.bazelon.org/issues/commitment/bazelonposition.htm (last visited Nov. 23, 2004). [FN166]. See generally M.A. Groge & E. Grottole, The Case Against Outpatient Commitment, 28 J. Am. Acad. of Psychiatry & L. 165, 165-68 (2000). 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 57 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN167]. See Hiday, supra note 3, at 8-21. [FN168]. See Martin S. Swartz et al., Can Involuntary Outpatient Commitment Reduce Hospital Recidivism? Findings From a Randomized Trial with Severely Mentally Ill Individuals, 156 Am. J. Psychiatry 1968, 1970-74 (1999); Jeffery Swanson et al., Can Involuntary Outpatient Commitment Reduce Arrests Among Persons with Severe Mental Illness?, 28 Crim. Just. & Behav. 156, 157-85 (2001). [FN169]. Any standard which, at a minimum, allows for the treatment of individuals based on the likelihood of serious mental harm or impairment due to a lack of treatment. [FN170]. Excludes extremely common criteria, e.g., has mental illness, is 18 years old, has access to services, etc. END OF DOCUMENT 89 MARQLR 359 FOR EDUCATIONAL USE ONLY Page 58 89 Marq. L. Rev. 359 (Cite as: 89 Marq. L. Rev. 359) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.