Involuntary Commitment And Involuntary Treatment: 13 important reforms

The availability of effective, comprehensive community-based systems of care for persons suffering from biological brain disorders will diminish the need for involuntary commitment, involuntary treatment, and/or court-ordered outpatient treatment, but not end it. Involuntary Treatment is not an ‘alternative’ to voluntary treatment, it is a way to see that the treatments get used by people too ill to recognize they need them (anosognosia).

The following are ideas to reform involuntary commitment and involuntary treatment laws

1.The “dangerousness” standard is inadequate in that it requires dangerousness, rather than prevents it. Laws should prevent, not require dangerousness. States should adopt broader, more flexible standards that would provide for involuntary commitment and/or court-ordered treatment when an individual:

(A).Is gravely disabled, which means that the person is substantially unable, except for reasons of indigence, to provide for any of his or her basic needs, such as food, clothing, shelter, health or safety, or

(B).Is likely to substantially deteriorate if not provided with timely treatment, or

(C).Lacks capacity, which means that as a result of the brain disorder the person is unable to fully understand or lacks judgment to make an informed decision regarding his or her need for treatment, care or supervision.

2. When the “dangerousness standard” is used, it must be interpreted more broadly than “imminently” and/or “provably” dangerous. Current interpretations of laws that require proof of dangerousness often produce unsatisfactory outcomes because individuals are allowed to deteriorate needlessly before involuntary commitment and/or court-ordered treatment can be instituted.

3.State laws should also allow for consideration of past history in making determinations about involuntary commitment and/or court-ordered treatment, since past history is often a reliable way to anticipate the future course of illness.

4. Allow doctors to receive information from families and ask them important questions: Current practice in many states is to prevent doctors from giving or receiving information from family members and significant others, who may have information that can help the doctor improve care. Some say HIPPA law prevents doctors from disclosing information to families. This is debatable. However, no law prevents doctors from listening to this information, yet many refuse to make the effort to obtain it or refuse it if proffered.

5. Make involuntary commitment and court-ordered treatment decisions expeditiously and simultaneously in a single hearing so that individuals can receive treatment in a timely manner. The role of courts should be limited to review to ensure that procedures used in making these determinations comply with individual rights and due process requirements, and not to make medical decisions. Currently an individual may be involuntarily committed if they meet whatever commitment standard the state uses, often a form of ‘dangerousness’. But even when the patient is admitted to the hospital involuntarily, they may still have the right to refuse medications. In that case, a hearing is held to see if the patient has the competency to make decisions. These two court hearings should be held simultaneously at commitment. Others have argued that lack of capacity should be a requirement in addition to dangerousness in order to commit someone.

6. The legal standard for states to meet in order to justify emergency commitments for initial 24 to 72 hours should be “information and belief.” For involuntary commitments beyond the initial period, the standard should be “clear and convincing evidence.” Involuntary commitments and/or court-ordered treatment must be periodically subject to administrative or judicial review to ascertain whether circumstances justify the continuation of these orders.

7. .Court-ordered outpatient treatment (AOT, Assisted Outpatient Treatment) should be considered as a less restrictive, more beneficial, and less costly treatment alternative to involuntary inpatient treatment.

8. Use involuntary inpatient and outpatient commitment and court-ordered treatment only when it is believed to be in the best interests of the individual in need. It should not be used to ‘control’ someone for ‘controls’ sake.

9.An independent administrative and/or judicial review must be guaranteed in all involuntary commitment and/or court-ordered treatment determinations. Individuals must be afforded access to appropriate representation knowledgeable about brain disorders and provided opportunities to submit evidence in opposition to involuntary commitment and/or court-ordered treatment. Because involuntary commitment is a serious issue, the decision should be made by a noninterested third party with the patient given solid and free due process protections..

10.Responsibility for determining court-ordered treatment should always be vested with medical professionals, who, in conjunction with the individual, family, and other interested parties, must develop a plan for treatment.

11.Efforts must be undertaken to better educate justice systems and law enforcement professionals about the relationship between severe brain disorders and the application of involuntary inpatient and outpatient commitment and court-ordered treatment. Many states have adequate laws that are underused.

12. Private and public health insurance plans must cover the costs of involuntary inpatient and outpatient commitment and/or court-ordered treatment. This means health plans should not—in the case of someone involuntarily committed-limit payments to services requested.

13. Public mental health systems should priortize funding of involuntary interventions since they help those most in need of mental illness services, save money, and help keep the public and patients safer.

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