The danger zone: how the dangerousness standard in civil commitment proceedings harms people with serious mental illness.

• Author: Gordon, Sara

Abstract

Almost every American state allows civil commitment upon a finding that a person, as a result of mental illness, is gravely disabled and unable to meet their basic needs for food and shelter. Yet in spite of these statutes, most psychiatrists and courts will not commit an individual until they are found to pose a danger to themselves or others. All people have certain rights to be free from unwanted medical treatment, but for people with serious mental illness, those civil liberties are an abstraction, safeguarded for them by a system that is not otherwise ensuring access to shelter and basic medical care.

States' continued and primary use of dangerousness standard in civil commitment proceedings does not meet our obligations to people with serious mental illness. Continued perceptions of the link between mental illness and violence, coupled with the strict interpretation of commitment statutes based on states' parens patriae authority, have resulted in commitment standards that effectively commit people only when they are dangerous, which is often far past the point that they are in need of help. Courts and psychiatrists should recognize states' obligations to provide health care to people with mental illness by interpreting gravely disabled statutes to allow for commitment when an individual is unable to provide for her basic needs but does not pose a danger to herself.

Contents Introduction I. The History of Civil Commitment in the United States II. Current Trends in Civil Commitment A. Danger to Self or Others B. Grave Disability III. The Role of Psychiatrists and Courts in Civil Commitment Proceedings IV. Public Perceptions About Mental Illness & Dangerousness V. The Aftermath: Effects of Deinstitutionalization and the Dangerousness Standard VI. Recommendations: The Need for a Broader Interpretation of Gravely Disabled Commitment Standards Conclusion "It must be remembered that for the person with severe mental illness who has no treatment the most dreaded of confinements can be the imprisonment inflicted by his own mind, which shuts reality out and subjects him to the torment of voices and images beyond our own powers to describe." (1)

"Civil libertarians say no--that it is our right to commit crimes that land us in prison, that it is our choice to be so ill that we prefer to forage through garbage and live on the streets, that it is our prerogative to let voices in our heads torment us into sleepless nights. But something tells me that the people locked up in San Quentin with a mental illness, and the people roving the hack alleys of skid row, are not singing "God Bless America." (2)

Introduction

Serious mental illness affects approximately 9.6 million people in the United States, or about 4.1% of the population. (3) In addition to the many debilitating symptoms of serious mental illness, many people also lack insight into the extent and effects of their symptoms; lack of insight is neurologically based and is often a hallmark of serious mental illness. (4) This lack of insight coupled with the complexities of serious mental illness means that people with chronic and long-term illnesses like schizophrenia and bipolar disorder often need some assistance in order to obtain mental health treatment and services. (5) Without assistance, whether from family members, communities, or the state, many are otherwise largely unable to care for themselves or access appropriate mental health care. This lack of access to treatment and resources has led to the marginalization of many people with mental illness--to the streets, to prisons, and to a variety of situations where they are at higher risk of becoming victims of crimes. (6)

Before the 1950s, many people with serious mental illness in the United States lived for most or all of their lives in state-run institutions. (7) 6 7 But as states began to "deinstitutionalize" inpatient psychiatric patients and heighten civil commitment standards, more patients who would have previously been treated in a long-term inpatient facility were left to find treatment on their own in the community. Well-intentioned civil rights and community mental health advocates believed that most people suffering from serious mental illness would be better served in their own communities. (8) Of course, along with this belief was a corresponding expectation that those individuals would voluntarily seek that treatment and that treatment would be available to them in those communities.

For some patients with chronic and serious mental illness, however, especially those without the resources to obtain care in the community, neither of these things happened. Instead, many of these people have become "revolving-door patients"; they have a serious mental disorder, do not voluntarily comply with treatment, and are unable to live successfully in the community without treatment. They often cycle in and out of hospital emergency rooms, where they receive the minimum amount of care necessary to stabilize them, and are discharged. Long-term treatment in the community is often unavailable, and without that care, many people with serious mental illness live on the streets, commit crimes for which they are sent to prison, or become victims of crime themselves.

Access to appropriate mental health care is a problem with tremendous scope in this country and there is no easy solution. Issues ranging from funding, to delivery, to quality of care have led many to conclude that the "mental health care system is 'in shambles.'" (9) For some people with serious mental illness, however, it is not just a question of the delivery or quality of the care they receive; it is that they receive almost no mental health services at all. Civil commitment is one way to ensure that people who are otherwise not receiving treatment for mental illness receive those services. Although most states have statutes that ostensibly allow for commitment when a person is not dangerous to herself or others but is nevertheless unable meet her basic needs for food and shelter, these standards are often interpreted strictly to require dangerousness. In these cases, the individual's lack of ability to meet her basic needs must be so grave that death is likely to result. For this reason, some people with untreated serious mental illness do eventually harm themselves or another person, further increasing public perceptions of a link between mental illness and violence, and stigmatizing those with mental illness. Meanwhile, people with serious mental illness who are not dangerous often do not have access to appropriate mental health care, or the resources to obtain available care.

This Article proposes that courts and psychiatrists go beyond a finding of dangerousness as a predicate for civil commitment, and instead interpret gravely disabled statutes to allow for commitment when an individual is unable to provide for her basic needs but does not pose a danger to herself. An expansion of civil commitment is far from an ideal solution, but it is one that could potentially provide access to mental health care and treatment to individuals who will not otherwise receive it.

Part I of this Article traces the history of civil commitment in the United States, as well as shifts in attitudes about the role of the state in providing mental health care to people with serious mental illness. Part II reviews current state statutes and trends relating to civil commitment, including dangerousness and gravely disabled grounds. Part III examines the role of psychiatrists and courts in civil commitment proceedings and the tendency of both to read a dangerousness requirement into gravely disabled grounds for commitment. Part IV considers the public perception of the link between mental illness and violence and argues that this perception has been perpetuated by civil commitment statutes that incorporate connections between mental illness and dangerousness. This Part also examines the current research on the lack of a direct connection between mental illness and violence. Part V examines the effect of deinstitutionalization and heighted commitment standards on access to mental health treatment for people with serious mental illness. Part VI concludes and recommends that courts and psychiatrists recognize states' obligations to provide health care to people with serious mental illness by interpreting gravely disabled statutes to allow for commitment when an individual is unable to provide for her basic needs but does not pose a danger to herself.

1. The History of Civil Commitment in the United States

   The United States has undergone enormous shifts in its treatment of people with mental illness, which has taken various forms from a more paternalistic model--one that sought to commit people whenever they might benefit from intervention--to a more libertarian model, or one that seeks to limit any form of commitment to people who might harm themselves or other members of society. (10) In this way, mental health differs markedly from physical health; patients must give informed consent to medical treatment for any physical disorder and any person "of adult years and sound mind has a right to determine what shall be done with his own body." (11) When an illness is mental rather than physical, however, the state is empowered by civil commitment statutes to impose its decision-making and requirements on that treatment. The scope of that power, however, has long been a subject of controversy.

   State intervention in the mental health treatment of citizens in the form of civil commitment statutes is a fairly recent development in this country. In Colonial America, family members were the source of most care for the mentally ill, and those without familial support often formed groups of itinerant "drifters" who moved from town to town. (12) If a mentally ill person became violent or otherwise posed a threat to the community, he was imprisoned. (13) Because...