Psychiatric hospitalization, although generally intended as a therapeutic intervention, has been also viewed as an incursion on civil liberties and a possible source of stigma, particularly when it is initiated involuntarily (1). Admissions to psychiatric hospitals fall into two general categories of legal status: voluntary and involuntary. In psychiatric emergencies, the legal status of the patient should be clarified on presentation. It is also important to consider whether the current legal status is appropriate to the patient’s clinical presentation and to make indicated changes via appropriate procedures and paperwork.

Voluntary admission is permitted by law in all states and is often seen as preferable in that it recognizes a patient’s autonomy and may help foster a therapeutic alliance. Some patients’ rights advocates take issue with voluntary admission,
arguing that mentally ill individuals are vulnerable to coercion and that voluntary patients forfeit court review of their admission. Research has indicated that a significant minority of voluntary patients experience coercion (2).

Statutes and practices pertaining to voluntary admissions vary significantly. Some statutes require that the patient be in need of treatment and that the facility admitting the patient be able to provide treatment. The age at which an adolescent patient may apply for voluntary hospitalization varies among jurisdictions. The capacity of a patient to consent to voluntary hospitalization is an important consideration, particularly in jurisdictions that necessitate by statute that an individual be competent to elect voluntary admission. In 1990, in Zinermon v. Burch, the United States Supreme Court held that if a state requires a patient to be competent to consent to voluntary admission, the failure to identify incompetent patients represents a violation of those patients’ constitutional rights (3). A tension exists between balancing the desire to make voluntary hospitalization as widely available as possible and the desire to ensure that incompetent individuals are not manipulated and are given access to court review of their admission. The level of decisional capacity required for a patient to consent to hospitalization is generally considered to be quite low (4).

The conditions for release of a voluntary patient are also variable. A “pure” or “informal” voluntary status allows the patient to leave the hospital at any time. A “conditional” voluntary status requires that, after announcing his or her desire to leave, the patient remain in the hospital for a period of time, often up to several days (5). This period may be used to allow the patient time to change his or her mind, for involuntary hospitalization to be initiated if appropriate, or for discharge planning to be undertaken. When a voluntary patient decides to leave when further inpatient treatment is indicated but grounds are not met for involuntary commitment, the discharge may be granted against medical advice and documented as such. Discharges against medical advice should occur after a discussion with the patient reviewing the reasons for continued hospitalization and the likely consequences of leaving and attempting to address the reasons the patient wishes to leave (6). Of course, follow-up treatment and referrals to outpatient resources should be provided.

In psychiatric emergencies, patients often pre-sent for treatment on an involuntary basis. Decisions regarding involuntary hospitalization require that respect for individual liberties be balanced with the risk for dangerous conduct or failure to provide for basic needs. This incursion on individual freedom, although commonplace in acute psychiatric settings, stands as unusual in medicine as a whole. It is important that clinicians be aware of this context and its implications for the treatment alliance, the required setting for treatment, and the required legal procedures.

The standards and practices for the involuntary commitment of psychiatric patients have evolved significantly. Prior to the 1970s, a philosophy of the state acting in the best interest of the patient was predominant, with commitment being triggered by a need for treatment. Since the 1970s, most states have moved to involuntary hospitalization founded primarily on the police power of the state to detain dangerous individuals. The Lanterman-Petris-Short act of 1969 made California the first state to move toward this model for commitment (7). Practically, what this has meant is that grounds for involuntary hospitalization now emphasize dangerousness to self or others or the inability to provide for basic needs, which is subsumed under a broad definition of danger to self in some jurisdictions. Some states have other criteria for commitment, such as the patient being at risk for deterioration in his or her condition. Others may require other findings, such as that no less restrictive alternative exists or that the patient is incompetent to make treatment decisions.

Under a police power model of civil commitment, individuals facing involuntary commitment have been viewed as having constitutionally guaranteed rights similar to individuals facing criminal prosecution. Equal protection of the law requires that such individuals not face differential treatment (i.e., involuntary hospitalization and the attendant loss of liberty) without a reasonable basis (e.g., a finding that a patient presents a danger to self or others on the basis of a mental illness). Due process requires that patients be given adequate notice, a timely hearing, and assistance of counsel. The high-water mark for this shift
was a 1972 case in a federal district court in Wisconsin, Lessard v. Schmidt (8). In Lessard, the court required notification of the right to a jury trial and the right to counsel, and proof of the need for commitment “beyond a reasonable doubt” (greater than 90% to 95% certainty). Subsequently, the U.S. Supreme Court in Addington v. Texas (1979) found that the minimum standard of proof for a court to uphold a civil commitment is “clear and convincing” evidence, about 70% to 75% certainty (1). Some jurisdictions allow patients to contest their detention at a probable cause hearing, which requires a fairly low standard of proof to uphold the commitment, before full judicial review is available.

Most states allow for the emergency, short-term, involuntary psychiatric hospitalization of patients prior to a hearing. Such emergency commitments commonly lead to presentation to a psychiatric emergency service. Depending on the jurisdiction, the emergency commitment process may be initiated by medical or mental health professionals, law enforcement, or a court. Generally, the criteria for emergency commitment mirror the grounds for commitments of longer term.

In practice, clinicians should determine the patient’s legal status promptly on presentation and consider whether it is appropriate to the patient’s clinical picture. The requisite documents indicating legal status should be obtained and reviewed promptly. If there is a legally appointed decision maker, such as a conservator, that individual should be contacted as soon as possible for involvement in treatment decisions. The time of expiration for the emergency commitment must be observed and, if needed, timely application for longer-term commitment must be made. Allowing a patient’s involuntary commitment to lapse inadvertently may result in a patient being discharged because of legal requirements rather than clinical considerations. Although most clinical settings will receive patients on familiar legal statuses, occasionally patients may present on types of commitments less familiar to them. In such situations, it is important to understand the reasons for and terms of the patient’s present legal status. In addition to looking at the commitment papers or the relevant statute, the commitment authority, hospital counsel, and patients’ rights advocates can be resources for consultation.

A clinician in an emergency psychiatric setting is often responsible for determining whether the criteria to sustain further involuntary hospitalization are met. This determination requires that clinical information be applied to legal criteria, generally specified in statutes. At times the decision to continue an emergency commitment may be straightforward, such as when the patient’s reason for presentation and his or her behavior and statements on interview clearly indicate acutely elevated risk of danger to self or others. For other patients, the decision may require rapidly obtaining collateral information from other sources, reviewing previous treatment records, and considering known risk factors and protective factors as well as available alternatives to hospitalization. Because decisions regarding commitment often require determinations of the risk for future behavior, it is worth noting that the accuracy with which clinicians are able to make such determinations is limited. A discussion of suicide and violence risk assessment is beyond the scope of this chapter; however, a rapid assessment of these issues is required for all patients and at times must be made with incomplete information. The reasoning underlying decisions relating to commitment should be carefully documented.

Patients may have other relevant legal aspects to their presentations, including mandated outpatient treatment, psychiatric advance directives, and concurrent criminal justice issues. Mandated outpatient treatment, also referred to as outpatient commitment, refers to a court’s order that a patient adhere to treatment in the community. Patients may be brought to psychiatric emergency settings when in violation of the terms of their mandated outpatient treatment. Mandated outpatient treatment may facilitate compliance with aftercare recommendations or allow access to outpatient resources. Although available in most states, the frequency and effectiveness with which mandated outpatient treatment is applied varies significantly, at times limited by the lack of effective enforcement and administrative infrastructure (9).

A psychiatric advance directive is a document, executed while an individual is competent, that specifies directions for treatment or appoints a person to make treatment decisions should the individual become incapable of making treatment
decisions during an acute episode (10). Advance directives pertaining to health care in general are available in all states and may be used to direct mental health treatment. Advance directives specific to psychiatric treatment are available in some states and may address issues such as hospitalization, administration of medication, or a surrogate decision maker (11). A psychiatric advance directive is generally to be heeded except when it runs counter to general standards of practice, the treatments requested are not available, or it conflicts with the needs of emergency treatment or prevailing law.