June 2002. McCullough No Title.

Vermont Bar Journal

2002.

June 2002.

McCullough No Title

SPECIAL FOCUS: DISABILITY LAW

THE NECESSITY OF INDIVIDUAL RIGHTS AND PROCEDURAL JUSTICE

IN THE CIVIL COMMITMENT PROCESS: A RESPONSE TO THE NOTION

OF "THERAPEUTIC JUSTICE:

John J. McCullough, III, Esq. & Joseph A. Reinert, Esq. time. At the same time, Judge Belcher's suggestion that commitment proceedings need to be more meaningful to the respon-dent opens up a critical debate about how to improve our current system and ensure that it works. Finally, the question of how to improve court proceedings in commit-ment cases necessarily raises the larger issue of reform of our mental health sys-tem as a whole.

Procedural Justice

Commitment has long been compared to criminal incarceration by several courts and has described as a "massive curtail-ment of liberty" by the Vermont Supreme Court.4 The Due Process Clause therefore requires a formal hearing in which the State bears the burden of proof by clear and convincing evidence that an individ-ual requires commitment.5 This is true, of course, under Vermont law, which requires that the State prove by clear and convinc-ing evidence6 that an individual has a men-tal illness and is dangerous to self or oth-ers.7 Because of the fundamental liberty interests involved, any changes to our cur-rent commitment process must be consti-tutional. Like a criminal defendant, the respondent in any commitment proceeding has a basic right to put the State to its bur-den of proof without the need to submit his or her own evidence. At the outset, there would be significant constitutional prob-lems with Judge Belcher's suggestions of permitting affidavits or other written testi-mony from psychiatrists, placing any bur-den on the respondent to present evidence, and having the option of summary judg-ment in commitment proceedings.

Moreover, there may be serious sys-temic consequences of a loosening of commitment standards. While the proce-dural protections in what seem to be the clearest cases of the need for commitment may not always prevent commitment in an isolated case, they certainly will affect oth-ers in the system who may be faced with hospitalization. The existence of Due Process protections requires psychiatrists and other mental health workers to seek the hospitalization only of those who satis-fy the statutory criteria. Though it cannot be said that this will always prevent the hospitalization of those who do not meet criteria, it has been observed that Due Process protections were one of the "key elements" in causing the dramatic decrease in the population of this country's psychiatric institutions.8 A revealing study of the effect of lowering commitment stan-dards in the State of Washington found that the loosening of criteria created a...

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