Legal Issues in Emergency Psychiatry and Involuntary Commitment

Legal Issues in Emergency Psychiatry and Involuntary Commitment



A middle-aged man shuffles into the office of the psychiatrist on duty in the emergency room and slumps into the chair; his deep sigh releases a whiff of alcohol, and he remarks, “Perhaps I shouldn’t have come.” He is graying, unshaven, and his somewhat disheveled clothes fit him loosely.

Empathic questioning reveals that 2 months ago he lost his job because of alcohol-related absenteeism. This event proved to be the last straw for his wife, who took the children and decamped to her parents’ home. He is sleeping little; his appetite is gone. His drinking buddies no longer find him “fun to be with,” his parents are not interested in hearing from him, and he has no relatives or close friends in town. He has been thinking seriously of suicide.

The doctor on call recommends hospitalization. The patient demurs at first, then argues, and then threatens. The doctor is firm. The patient looks searchingly at the doctor for a long moment, sighs quietly, and says, “Okay, Doc, you’ve convinced me. I’ll go pack some things and meet you here in an hour.” Rising, he turns toward the door.


A middle-of-the-night call to an emergency service of a psychiatric hospital announces the imminent arrival of a transfer from a nearby general hospital. The patient in question, aged 28 years and mildly intoxicated, had just received extensive stitching for two self-inflicted superficial lacerations running the length of each arm. After the lacerations were sutured, the patient went into the bathroom of the emergency ward and removed each stitch. He was resutured and is now being transferred for psychiatric hospitalization.

On his arrival, it is apparent that he is not psychotic but is furiously angry with his stepbrother, with whom he has been staying since his arrival in the city 3 weeks ago. When his stepbrother ordered him to leave the house after an altercation, the patient procured a razor blade from the bathroom and, in front of his stepbrother’s little daughter, carved up his arms. He will not say whether he intended to kill himself or if he is still bent on self-destruction. He does give a history of previous hospitalizations after other self-destructive acts, all of which ended with his angrily signing himself out of the hospital within a few days. After eliciting this story, the psychiatrist pauses to consider his options for handling the case.


Nearly frantic with concern, the mother of a 23-year-old woman calls a psychiatric center to ask for help. Her daughter, who until last month had held a responsible secretarial job, has, since then, been acting rather strangely. She has withdrawn large amounts of money from her bank account to buy flashy clothes, has begun to drink a good deal, and has threatened her relationship with her boyfriend of 2 years, beginning a series of wild one-night stands with men she meets in bars. In addition, she is now extremely suspicious of her mother, with whom she formerly had a very close relationship.

On the previous night, the daughter had gone with her boyfriend to a disco but soon left the establishment somewhat intoxicated in the company of another man. Her boyfriend discovered that she had taken his car and, not far from the disco, had smashed it into a guardrail on the highway, causing extensive damage but no injuries. He does not wish to press charges but would like to see her obtain psychiatric care. She was last seen leaving the scene of the accident in the company of a cabdriver who had stopped to help. A friend reported that she had called to say that she was spending the night with the cabdriver. The mother pleads that something be done to give her daughter the care she needs.



The clinician who sees patients with presenting complaints of an emergent nature, whether in the office or in the psychiatric emergency room, is faced, as the examination proceeds, with two critical clinical-legal decisions: (1) does this patient require hospitalization or is some less drastic form of
intervention preferable and (2) if hospitalization is required and the patient refuses to consent to admission, does the patient meet those criteria that would permit hospitalization against his will? Clinicians are also concerned with the impact of both of these decisions on their potential liability should something untoward occur. Although most of the court cases arising from emergency treatment settings have involved physicians, the principles elaborated are applicable in most circumstances to other clinicians as well.


1. When A Duty of Care Exists

A clinician becomes responsible for a patient’s care only when a treatment relationship is established between them. Thus, a clinician accosted in the street by someone whom he has never previously met and who threatens suicide is, moral considerations aside, not legally obligated to undertake an evaluation or to arrange a disposition. When a patient is seen in a treatment setting, however, such as a private office or a walk-in clinic, and it becomes apparent even during the initial assessment that an immediate intervention is required, a therapeutic relationship is assumed to exist despite the absence of a formal contract. Facilities advertising emergency services have a duty under a federal statute, the Emergency Medical Treatment and Labor Act (EMTALA), to provide urgent care to all comers. Failure to provide for proper care (which, under EMTALA may consist merely of stabilization and referral to another, more appropriate facility) leaves the clinician open to a charge of abandonment. Before a patient is permitted to leave, an assessment ought to be made sufficient to rule out the possibility that further immediate steps are required.

The determination of whether the caregiver has assumed a duty of care toward the patient is not always clear-cut. Phone calls from people who have not previously been in treatment but who are seeking aid, or the casual inquiries of friends that reveal emergent issues, leave the clinician in an ambiguous position. Although no definite pronouncement is possible, courts have frequently held that when a physician has responded to the inquirer as a physician—not merely as a friend—a therapeutic relationship has been established and a duty of care exists.

2. Clinicians’ Duties in the Emergency Setting

Clinicians have two general obligations toward patients once a duty of care is established in an emergency setting: evaluation and proper disposition.

a. Evaluation. The nature of the duty to evaluate the patient differs somewhat in the emergency context. Mental health evaluation in office, clinic, or hospital-based outpatient practice need not be an expeditious process. Information can be gleaned from patients over more than one visit. Records of previous mental health contacts can be requested. Once the therapist has a reasonably firm relationship with the patient, family members or other informants may be invited to join the patient for a session at which their perspectives can be explored. As long as no symptoms require urgent attention, the completion of the evaluation, along with formulation of a working diagnosis and initiation of definitive treatment, can be postponed until more information is available.

Emergency evaluations have quite a different character. In a brief period, the clinician must gather sufficient information about the patient to assess his or her current condition and to formulate plans for immediate intervention. This data-gathering process is focused and rapid. Interviews are highly structured. Information from other caregivers is obtained by telephone rather than by mail. Informants who have accompanied the patient to the evaluation are interviewed on the spot. Laboratory tests may be performed, with results returned before the evaluation is completed (e.g., serum lithium level, blood alcohol level, toxicology screen). If a definitive diagnosis cannot be established, at least a differential diagnosis is formulated, with the most likely possibilities identified.

Several important legal implications flow from the unique nature of the emergency assessment. First, the standard of thoroughness to which the clinician is held is not the same as in a nonemergent context. The law recognizes that, should legal proceedings ensue as a result of the evaluation, the resources (including information and time) available to the emergency evaluator are restricted. Although the resources at hand should be used, decisions may need to be made before all the information that one would desire is available. For example, the patient’s therapist may be unreachable during the evaluation, and critical data concerning the patient’s functioning may have to be foregone. Thus, the questions asked to evaluate the clinician’s performance are: Did he or she
make reasonable efforts to obtain the necessary information? Given the constraints on available data, was the assessment performed as well as could be expected?

An important corollary to this limited amount of information for the evaluation is that a decision about the nature of the patient’s condition, at least sufficient to make disposition plans, cannot be deferred simply because not all of the information is in. Clinicians dealing with emergencies have to tolerate a fair degree of uncertainty but must make their best judgments. A decision to defer intervention pending further data is equivalent to a judgment that the situation is not emergent enough to require intervention. When some intervention is clearly required, the law shields the mental health professional who acts despite gaps in the database, but it also may hold culpable clinicians who cannot make up their mind.

b. Disposition. Three options are available to the emergency evaluator: no further treatment, outpatient treatment, and inpatient hospitalization.

i. No further treatment. The clinician in an emergency setting is not obliged to recommend further psychiatric treatment. Psychiatric emergency rooms are frequently visited by persons who may neither need nor desire psychiatric care. These include homeless people hoping for bed and board in a psychiatric hospital; persons brought by family members or friends because the latter perceived a problem (e.g., premarital sexual activity) that on evaluation turns out not to be indicative of psychopathology; and persons brought by the police because of bizarre or violent behavior but who are personality disordered, unreceptive to treatment, and therefore essentially untreatable. Once an appropriate evaluation has been performed and both its conclusions and the recommendations given to the patient carefully documented, the clinician may decide that the perceived emergency does not represent a situation that requires further involvement from the mental health system.

ii. Outpatient treatment. Even the presence of a genuine emergency does not mandate hospitalization. Most patients who present to psychiatric emergency rooms or walk-in clinics are referred for outpatient follow-up. To recommend outpatient treatment, the emergency evaluator does not have to reach conclusions concerning the patient’s definitive diagnosis or ultimate treatment plan. The evaluator need only determine that the patient can be safely maintained in the community until the follow-up visit is scheduled, at which time reevaluation of the patient’s status can take place. The timing of that visit should be commensurate with the urgency of the clinical situation. Some patients may need to be seen days later; others, weeks later.

Ordinarily, the degree of anticipated cooperation by the patient and the availability of supports in the community are important determinants of whether outpatient therapy is feasible. If the patient resists the referral, or it appears clearly that he or she will not follow through, consideration must be given to whether the patient meets the criteria for involuntary treatment, on an outpatient basis, as allowable in some states (see Sec. II-F-4), or on an inpatient basis. If the patient is not committable, and the patient is not willing to negotiate an acceptable treatment plan, there may be no alternative but to allow the patient to leave. For patients whose competence to make decisions about treatment may be in question, family members can be advised to seek an adjudication of incompetence, allowing the appointment of a substitute decision maker to consent to treatment on the patient’s behalf (see Chap. 5, Sec. II-C-1).

The outpatient option remains available even if the patient qualifies for involuntary hospitalization under applicable state laws (see Sec. II-D). These laws are permissive, not mandatory. That is, they define circumstances in which commitment may occur, not conditions under which it must. In fact, many statutes incorporate a “least restrictive alternative” criterion, permitting commitment only when no outpatient option is feasible. Studies showing that only a minority of “committable” patients are hospitalized involuntarily may help ease the fears of clinicians about treating such patients in the community.

iii. Hospitalization. Often, the only reasonable option for dealing with a psychiatric emergency is to seek the patient’s hospitalization. This may occur on a voluntary (see Sec. II-C) or involuntary (see Sec. II-D) basis. When the patient is amenable to the recommendation, voluntary hospitalization is usually the most desirable course of action. If the patient resists hospitalization, however, the clinician must determine whether the patient meets the criteria for involuntary commitment and, if so, begin that process.

Confusion often exists as to whether patients who desire voluntary hospitalization may be committed anyway. Some states limit this practice, but the majority have no barriers to it. Involuntary hospitalization may be preferable when the patient has a history of signing out of the hospital soon after admission; in these circumstances, it simplifies the task of treating the patient and provides a message to the patient about the seriousness with which the staff views his or her situation. Commitment may also be the best choice when state laws would make it difficult to hold the patient if he or she later elected to sign out of the hospital but would probably allow commitment in the emergency context.

As if the clinician did not face sufficient difficulties in considering whether to hospitalize a patient, an additional worry exists. Common law rules, codified in some places, have held those who unjustly deprive a person of his freedom to be liable for suit in tort for false imprisonment. Although any patient can claim that he or she has been unjustifiably committed, the key point is that the courts are unlikely to hold liable a clinician who acts in good faith, in accordance with the laws of the state, to hospitalize a mentally ill person. Many state commitment statutes have provisions that grant immunity to clinicians who act in compliance with statutory mandates. Liability is limited to those cases in which the clinician has acted willfully and maliciously to deprive a person of his or her freedom, knowing that the patient did not meet the required criteria. Good record-keeping, with a clear recitation of the basis for the decision, should effectively foreclose liability.

c. Managed care in the emergency setting. Emergency evaluation has been complicated by the tighter oversight of insurers and managed care companies, which typically require that they be contacted before dispositions requiring insurance coverage (e.g., inpatient hospitalization, intensive outpatient treatment, referral to a drug or alcohol detox facility) are initiated. Such requirements increase the pressure faced by emergency clinicians, who may find themselves spending precious time trying to justify their recommendations to a reviewer on the telephone, while their emergency service is overwhelmed with urgent cases.

Despite these complications, the clinician’s legal duties to the patient in the emergency setting remain largely unchanged. Adequate evaluation must take place, and an appropriate disposition must be recommended. If a managed care company refuses to authorize payment for the disposition chosen by the evaluator (e.g., inpatient hospitalization), the clinician must make a further determination of the degree of urgency posed by the patient’s state. In circumstances in which the patient or others would be endangered by a failure to follow the recommended intervention, the clinician may be obligated to engage in vigorous advocacy with the managed care company—and with his or her own facility or others that can provide the needed care—while an appeal of the coverage decision is made. When the situation is less urgent, or other treatment options may be acceptable, the emergency clinician can work with the patient to review his choices and help select the best available course of action (a decision in which economic considerations may play a sizable role). For a more complete discussion of the clinician’s legal obligations and risks of malpractice in a managed care environment, see Chap. 4, Sec. II-C.

d. Boarding patients in the emergency room. An unfortunate consequence of the steady contraction in the number of psychiatric beds in the United States has been increasing resort to a practice that has come to be known as “boarding.” When patients require hospitalization, but no psychiatric bed is available in the facility or other local hospitals, patients may be kept in the emergency room for days and sometimes weeks on end. Busy emergency rooms, of course, with the 24/7 pace and limited privacy are not conducive to psychiatric treatment, and mental health personnel are often in short supply in such settings. At least one state’s supreme court, Washington’s, has ruled that prolonged detention of psychiatric patients in an emergency violates their rights under state law, leading the state to create additional inpatient beds to ease the shortage. The difficulties of managing, much less treating, patients in the emergency room also heighten liability risks for psychiatrists and other staff should patients hurt themselves or others, escape and come to harm, or become markedly worse in that setting. There may be little that any single clinician can do to ease the boarding problem; it reflects systemic failures that have to be addressed at a systems level.


1. History

The idea that persons with mental illness might be able to sign themselves into psychiatric hospitals voluntarily caught on relatively late in the history of psychiatric hospitalization. Although the first statute allowing a mental patient to enter voluntarily was enacted in Massachusetts in 1881, by 1949 only 10% of patients were voluntarily admitted. It was not until 1972, after two decades of widespread revision of commitment laws to encourage voluntary status, that the majority of admissions were accomplished in a voluntary manner.

The reasons voluntary admissions took so long to become common are twofold. First was the issue of administrative convenience; it was feared for many years that permitting a patient to leave a psychiatric facility at will, as the concept of voluntary admission seemed to allow, would paralyze the treatment program and overwhelm the paper-processing apparatus. Second, many thought that the presence of mental illness per se rendered a person incompetent to consent to hospitalization, and such an act required the intervention of a court.

Psychiatrists were the strongest advocates of voluntary hospitalization, particularly after the psychoanalytic movement made its mark on the country. They thought that a patient’s cooperation was essential for effective treatment and that such collaborative treatment should begin at the time of admission. For many years, advocates of patients’ rights had also favored voluntary status as less restrictive of patients’ freedom.

Today, the debate over voluntary hospitalization has changed somewhat. Some advocates of patients’ rights oppose any admission without court review, holding that people with mental illness are often subject to unwarranted coercion at the time that the admission decision is made. These proposals, if adopted, would represent a return to the situation as it existed in most jurisdictions in the 1940s; they evoke the arguments that were then urged in favor of removing the admission process from the courts: a lessening of the stigma of admission to a mental hospital, which resulted in part from the quasi-criminal procedure; a greater sense of autonomous functioning on the part of the patient who has chosen to sign himself or herself into the hospital; and an explicit contract for treatment between the patient and the hospital. In addition, substantial practical problems exist in requiring scarce psychiatric resources to be spent in hours of court hearings, not to mention the burden on the courts themselves. For all of these reasons, almost all mental health professionals, and probably a majority of the mental health bar, favor the retention of voluntary admissions as the most frequently used means of ingress to a psychiatric hospital.

Finally, an ironic note should be mentioned. The percentage of voluntary patients in state hospital systems has been falling in recent decades as the policy of deinstitutionalization has drastically reduced the number of available beds. Some public mental health systems now restrict hospitalization only to involuntary patients in an effort to hold down inpatient censuses. Others accept only patients who meet commitment criteria, although they may allow them to sign in voluntarily. Although voluntary but noncommittable patients with insurance coverage might once have been sent to the private sector, many insurers and benefit management companies have acted similarly in limiting authorizations for payment for hospitalization to those patients who meet commitment criteria. Thus, dangerousness-based criteria, developed largely out of concern for the civil liberties of patients faced with involuntary commitment, have become a tool for restricting the hospitalization of patients who desire inpatient treatment. Voluntary hospitalization, once encouraged as a means of enlisting patients in their treatment, has become a victim of widespread retrenchment in mental health services, public and private.

2. Types of Voluntary Admission

All states today permit patients voluntarily to enter psychiatric hospitals, with some statutes additionally requiring that the patient be in need of care and that the facility be capable of providing such care. The age at which adolescents can consent to their own care ranges from 12 to 18 years. The different types of voluntary status vary as to the procedure for ultimate egress.

a. Pure. Under the pure status, sometimes called “informal” admission, the patient is free to leave the hospital whenever he or she chooses. Because of the potential for manipulation of the therapeutic situation by patients with such leeway, some states limit, by law or policy, the scope of pure voluntary admissions.

b. Conditional. A modification of the pure form, the conditional status allows the facility to detain a patient for a certain period, usually several days, after notice is given of a desire to leave. This interval is designed to be used for the evaluation of the patient with respect to the possibility of instituting proceedings for involuntary commitment and for preparing discharge plans if the patient must be released. If the facility decides to seek commitment, the patient can continue to be held until the commitment hearing takes place. Otherwise, the patient is free to go. This period is frequently used in practice as an interval during which an angry, impulsive, or manipulative patient can reconsider his or her decision to leave.

3. The Question Of Competence

If one were to analogize the act of voluntarily entering a mental hospital to other acts of great importance to the individual, such as making a will, one would assume that the person would need to be legally competent to be able to do so. Early statutes authorizing voluntary admissions, indeed, made this requirement explicit. More recent laws, however, designed to encourage voluntary admission on the theory that it aids treatment, omit such requirements in all but a handful of states.

The dilemma is that requiring competence to consent to hospitalization would probably deprive many patients of the benefits of such admission; some empirical data exist to support this conclusion, although the strictness of the definition of competence has an obvious impact on the proportion of patients found to be incompetent. On the other hand, ignoring the question of competence leaves psychiatrists and facilities open to charges of improperly manipulating clearly incompetent patients (e.g., severely demented patients). In addition, some legal experts argue that the benefits of voluntary status are illusory and are easily outweighed by the lack of automatic judicial review and the potential deprivation of freedom that follows from it. At present, the issue is unresolved, although in practice, absent state law or regulation to the contrary, the question of competence is usually ignored.

A 1990 US Supreme Court decision (Zinermon v. Burch) has drawn increased attention to this issue. The court held that in those states, such as Florida, that require a patient to be competent before signing in voluntarily, the failure to screen out incompetent patients violates those patients’ constitutional rights. It is unclear whether the court would actually restrict voluntary hospitalization only to those patients found competent, assuming a state’s statute is silent on the issue. The decision itself did not address this question, but some of its wording suggested that the court may be leaning in this direction. Clearly, there are legitimate interests on both sides.

A reasonable resolution of the competing values was suggested by the American Psychiatric Association (APA)’s Task Force on Consent to Voluntary Hospitalization (see Suggested Readings, American Psychiatric Association). Recognizing that little benefit exists for anyone in preventing voluntary hospitalization of a person who understands in general terms what is involved and desires admission, especially when a psychiatrist concurs in that judgment, the task force suggested that only a minimal level of capacity be required. If a patient understood that he was entering into a hospital (rather, for example, than believing that he was checking into a motel) and recognized, as is true in most states, that he might not be able to leave at will if he were thought to be a danger to self or others, that understanding would be sufficient to render the patient competent for this purpose. Even incompetent patients might be admitted (at least for a limited time) if they agreed to enter the hospital and some in-hospital review process were available to pass on the appropriateness of their decision. This approach seems decidedly preferable to judicial review of each admission in which a question of competence is raised, either prospectively or retrospectively, which would face severe practical problems of implementation, delaying treatment and overburdening the resources of both the courts and the treatment system.


Although the power to hospitalize a psychiatric patient against her will is often taken for granted by many caregivers, it actually represents a marked deviation from the traditional tendency in Anglo-American jurisprudence to maximize individual autonomy. To understand the unique position of the mental patient (e.g., no competent medical patient can be admitted against her will) one needs to examine the evolution of the concept and the underlying rationales.

1. History

a. Confinement of the mentally ill in the colonies and the young republic. In the earliest years of the settlement of North America, no facilities for the specialized care of persons with mental illness were created. Indigent persons with mental illness who did not present a threat of violence were cared for in poorhouses by their own communities. Here they were mixed with the physically ill, widows and their children, and the unlucky destitute. All of these groups could be detained against their will at the order of the overseers of the poor. Occasionally, towns or counties made provision for harmless persons with mental illness to be boarded out to local families at public expense.

Separate provisions were made for violent persons with mental illness, sometimes called the “furiously mad.” They might be detained in jail until it was thought safe to release them. At that point, in New England, if they were not residents of the town, they would be transported to the borders of the community and “warned out,” responsibility for their care falling to the next town along their path. A similar fate befell nonresident, harmless persons with mental illness who wandered into a New England town.

As the colonies matured, hospitals began to be established, the first in Philadelphia in 1751. These institutions treated both physically and mentally ill persons, with similar procedures for admission used in each case. Ordinarily, family members brought prospective patients to the hospital, where admission was determined by two factors: a doctor’s judgment as to the need for hospitalization and the family’s ability to pay for a period of care in advance. Patients played little or no role in negotiating these admissions or in deciding when they might leave.

b. Involuntary commitment in the nineteenth century. This informal system of hospitalization, free of statutory control, began to change in the second quarter of the nineteenth century, as the first great wave of building state hospitals got underway. With the states taking responsibility for care of the mentally ill, a statutory framework was required. The earliest statutes, though, did little more than formalize the existing system. Families and hospital superintendents (then always physicians) dominated the admission process, with overseers of the poor standing in for families in the case of indigents. The only criterion applied to determine the appropriateness of commitment was whether the patient was in need of treatment. If patients felt unjustly confined, their sole recourse was to seek a writ of habeas corpus from the courts, which precipitated a hearing on the issue. It appears from the extant records that relatively few cases went that route.

In the 1860s and 1870s, allegations of abuse began to rise, probably in connection with a decline in the quality of institutional care. Included among these were legendary stories of wives who were “put away” by their malevolent husbands, with the connivance of psychiatrists. These protests led to the introduction of criminal-style procedures, designed to ensure that deprivation of liberty was not arbitrarily undertaken. Judicial hearings were required, representation by counsel was allowed, free communication with the outside world was guaranteed, and, in some states, even trial by jury on the issue of mental illness was afforded. Although some states clung to a family- and physician-dominated model for several more decades, by the end of the nineteenth century most jurisdictions had adopted judicial review of commitment.

c. Involuntary commitment in the twentieth and twenty-first centuries. With a single exception, all of the major changes in commitment law after 1900 were prefigured before that time. The first two-thirds of the twentieth century saw an alternation between periods in which the primary concern was that criminalized commitment procedures made it too difficult to hospitalize those in need of care and in which worries about protecting patients from unjust confinement predominated. Marked relaxation of procedures occurred during the Progressive Era (1900-20), when short-term, emergency commitment on physician certification was introduced. A similar
period followed World War II, with psychiatry’s prestige at its peak, when statutes were widely revised and judicial procedures relaxed. Every period of procedural relaxation was followed by an era of tightened procedures, as no permanent accommodation between the conflicting interests could be achieved.

The period of widespread reform, however, that began in the early 1970s, differed from all that preceded it. To be sure, the usual, periodic recriminalization of commitment procedures took place. In addition, an assault was made on the standards for involuntary hospitalization for the first time in American history. Standards based on need for treatment were rejected by many courts (the leading case was Lessard v. Schmidt, a 1972 federal court decision in Wisconsin) as unconstitutionally vague and overbroad. Such courts ruled that only standards based on clear evidence of patients’ likelihood of endangering themselves or others were permissible. Meanwhile, legislatures had been coming to similar conclusions, albeit generally for a different set of reasons. They saw narrowed commitment criteria as an easy mechanism for trimming the size of state hospitals, encouraging deinstitutionalization, and saving money. By the end of the 1970s, every state in the nation had shifted to commitment criteria primarily based on dangerousness, an approach that continues today.

2. Legal Rationales for Involuntary Commitment

Contemporary common wisdom holds that two separate bases exist for involuntary hospitalization of the mentally ill.

a. Police powers. The government has always had the power, reserved in this country by the US Constitution to the individual states, to take those actions necessary to maintain the safety of society. These are broadly referred to as police powers. The extent to which each state can protect the public is limited by the state’s constitution and by the Fourteenth Amendment of the US Constitution, which guarantees all citizens “due process” and “equal protection” of the laws.

Use of police powers to confine people with mental illness dates back to colonial times, when the “furiously mad” were incarcerated in local jails. These days, some theorists would argue that all dangerousness-based commitment laws rely for their validity on the state’s police powers. The legitimacy of confinement, in this view, is based on the state’s power to prevent persons with mental illness from hurting others or themselves. Police powers are also exercised in so-called criminal commitments, including hospitalization of defendants whose competence to stand trial is in question or (at least for the period immediately after trial) who have been found not guilty by reason of insanity.

b. Parens patriae. The concept expressed by the Latin phrase parens patriae denotes the state as acting in place of the parent. It derives in Anglo-American law from the power of the English kings, who were viewed as the fathers of their subjects, to act in their subjects’ presumed interests when the subjects were not capable of protecting themselves. Historically, this meant that the king might appoint a representative to oversee the castle and estate of a nobleman gone mad. Parens patriae justifications for involuntary confinement of persons with mental illness in this country date back to colonial confinement of the insane in poorhouses to allow the community to provide them effective support. As statutes began to be passed establishing need for treatment as the main criterion for commitment, parens patriae became the theoretical linchpin of commitment law. The state was acting, in theory at least, from purely beneficent motives in hospitalizing persons with mental illness. Many observers believe that the shift to dangerousness-oriented statutes in the 1970s rendered parens patriae justifications irrelevant to American commitment law.

c. An alternative perspective: survival of parens patriae justification for commitment. The widespread belief that current commitment laws are based solely on the state’s police powers is almost certainly mistaken. Although the state may have a substantial interest in protecting the public order, by itself that interest is insufficient to justify commitment of persons with mental illness. Persons who are likely to harm others, but who do not have a mental illness, cannot be detained against their will until they have committed a crime. This is true even for criminal recidivists with long histories of violent behavior. Similarly, persons who behave in ways likely to cause themselves injury, rock climbers who do not use safety equipment, for example, cannot be confined unless they too are mentally ill.

If the state’s police powers are at issue here, why should the presence of mental illness make a difference? Why is the presence of dangerous behavior by itself not sufficient to justify state intervention? The only reasonable conclusion is that actions to protect society’s interests, standing by themselves, are insufficient bases for state action when significant deprivation of liberty is the cost. The difference between a dangerous psychotic person and a dangerous non-mentally ill criminal is that hospitalization of the former is likely to benefit him and, not incidentally, allow ultimate return to society in a more functional state. Confinement of the latter would be solely for preventive purposes and might have to be indefinite to achieve that end. In short, the availability of care and effective treatment justifies dealing differently with persons with mental illness. Parens patriae rationales are therefore inherent in any system of commitment, even one limited to dangerous persons. The commonly accepted dichotomy is false (see also Chap. 5, Sec. II-E-1).

3. Current Standards of Involuntary Hospitalization

Standards for involuntary commitment vary from state to state, even under prevailing dangerousness-based approaches and are frequently subject to revision by courts and legislatures. Here we outline the principles underlying the various criteria. It is the obligation of every clinician to remain informed about the most recent developments in his jurisdiction. Professional societies can often supply copies of current statutes and keep members up to date on changes as they occur. Every clinician should take the time to read the state’s commitment statute and other legislation relevant to mental health practice.

a. Emergency commitments. Most jurisdictions provide for the short-term hospitalization of patients in emergency situations until a court hearing can be held. The period before the hearing may vary from as little as 2 days to as long as 10 days. Usually, a physician or psychologist must sign the commitment certificate, but some states require more than one professional to sign and some allow agencies, such as the police or the courts, to initiate commitments when no mental health professional is available. Some states have screening requirements of varying degrees of rigor. At the lower end of the spectrum, states mandate that the committing clinician call in to a central screening officer to obtain permission for commitment, at least when the patient’s bill will be paid by a public mental health agency. More significantly, other states require a full investigation by an independent agency of the need for hospitalization and the availability of alternative placements in the community.

Most often, the criteria that must be met are identical to those required for court-ordered commitment, although sometimes emergency commitment criteria are broader. Facilities must decide at the end of periods of emergency commitment whether to release the patient or to petition for court-ordered hospitalization. The strict time limits on the duration of an emergency commitment are sometimes subverted in practice by the long periods required for the court to schedule a hearing. Thus, patients may be involuntarily detained for many weeks before a hearing. The power to commit represents such a significant limitation on the freedom of the individual that those who hold it should exercise it only with extreme care.

b. Court-ordered commitments. Before the expiration of an emergency commitment, or if imminent dangerousness is not an issue at the time the decision to hospitalize is made, the court of appropriate jurisdiction can be petitioned for an order of commitment. The hearing that follows may take place, depending on the state, in a district, superior, family, or probate court. A small minority of states substitute an appearance before an administrative board or hearing officer in lieu of a formal judicial hearing at this stage, reserving the courts for review of subsequent, longer-term commitments; these are sometimes called “probable cause” hearings, since the decision maker is charged with determining whether probable cause exists to believe that the patient meets commitment standards.

Some states guarantee the patient the right to have a jury decide on the question of commitment, but the vast majority of cases are heard by judges. In some states, the duration of the commitment is explicitly limited (e.g., to 30 days, 6 months, or 1 year); recommitment after that period requires a rehearing. Other states specify no period for commitment or allow an indefinite period, depending on the patient’s condition. Court decisions suggest that, even in this latter group of states, a periodic review of the patient’s status is constitutionally required to determine if the criteria for involuntary commitment continue to be met. The standards that the patient, as a result of having a mental illness, must meet to be committable include the following six criteria.

i. Danger to others. Many states require “danger to others” to be imminent, and some require proof of a threat, attempt, or occurrence of harm (often called an “overt act”). These demands for concrete evidence of dangerousness reflect society’s trade-off of some measure of protection of the public at large in favor of a more stringent limitation on the number of those who face involuntary commitment. Although these requirements appear to objectify the decision-making process, in fact, a great deal of discretion remains in the hands of the committing physician, who now must judge the dangerousness of a person’s threats or acts, rather than the degree of danger represented by his mental state.

ii. Danger to self. The “danger to self” criterion addresses suicidal or severely self-destructive behavior (e.g., self-mutilation). Criteria tend to be less strict here than for dangerousness to others, but even so there are states (e.g., California) that do not allow long-term commitment of competent, suicidal patients. Immediate likelihood of harm and direct evidence of threat or attempt are other frequently included requirements.

iii. Unable to care for self. Usually limited to an inability to provide for the essentials of food, clothing, shelter, and medical care, such that the patient is at risk of serious physical harm, the “unable to care for self” standard can be subsumed under a broad definition of dangerousness to self. The ability of care need not meet middle-class levels; many patients with chronic conditions who live on the streets have developed remarkable talents for meeting their basic needs. In some states, this standard is known as gravely disabled. Even if the patient cannot care for himself or herself, hospitalization may not be permitted if alternative provision is available in the community.

iv. Danger to property. “Danger to property” is an infrequently used criterion. Court decisions have indicated that involuntary commitment on the basis of danger to property in general is unconstitutional, but statutes requiring that the danger be one of substantial property loss or damage may pass constitutional muster.

v. In need of treatment. “In need of treatment” is the old pure parens patriae standard but no longer stands on its own. It is frequently used in combination with the “danger to others,” “danger to self,” “unable to care for self,” and “danger to property” criteria; patients not in need of treatment, despite dangerousness to self or others, may not be committable in these states.

vi. At risk of deterioration. A few states, beginning with Washington state in 1979, have permitted involuntary hospitalization if a severe deterioration in the patient’s condition is likely, such that he or she will predictably meet dangerousness-based criteria in the future. This represents an effort to reinject something of a need-for-treatment approach into commitment law (see Sec. II-F-1).

vii. Miscellaneous criteria. A small number of jurisdictions require that patients be incompetent to make treatment decisions (see Sec. II-F-1-a), at least under certain of their commitment criteria (e.g., Kansas). An increasing number of states, spurred by court decisions, require that the option of commitment be the “least restrictive alternative” that meets the patient’s needs. This generally means excluding nursing home and group home placements, day hospitalization, and outpatient care as options before hospitalization is pursued. A number of practical difficulties exist in using a “least restrictive alternative” analysis. Although legal thought has always assumed that a lesser degree of governmental intervention is inherently less restrictive, that assumption may not always hold true in psychiatric settings. Critics of the concept have pointed out the difficulty in determining whether it is truly “less restrictive” for a psychotic patient to wander the streets uncared for or for him to be involuntarily hospitalized in a safe, clean, therapeutic milieu where not only his physical needs can be met but also the grip of the psychosis on his mind can be broken. Some clinicians and researchers have advocated a substitution of “most therapeutic alternative” in place of the “least restrictive” test. Courts, however, which are the final arbiters of any such change, have not yet shown themselves inclined to accept it.

4. Procedural Issues

a. Standards of proof. The degree of legal certainty required before commitment can ensue was the object of a 1979 US Supreme Court decision (Addington v. Texas). The possible standards include (1) a preponderance of the evidence—the standard in civil cases and generally conceived
of as “more likely than not” or 51 chances out of 100; (2) clear and convincing evidence—roughly 75 chances out of 100; and (3) beyond a reasonable doubt—the standard in criminal cases, approximately 90 to 95 chances out of 100. Deciding among these, the court ruled that the preponderance standard was insufficient when liberty was at stake but, given the difficulty psychiatry would have in meeting the most stringent standard (of beyond a reasonable doubt), clear and convincing evidence was all that was constitutionally required. Nonetheless, some states (e.g., Massachusetts) continue to require proof beyond a reasonable doubt. Given the inherent difficulties psychiatrists (or anyone else) have in the prediction of future behavior, this is a difficult standard to meet. But it should be kept in mind that what must be proven is not that it is beyond a reasonable doubt that dangerous behavior will occur. Rather, because almost all states specify that a “likelihood,” “significant risk,” or “imminent risk” of dangerous behavior is required, it is only the existence of that risk that must be proven beyond a reasonable doubt. It is a good deal easier to be certain that someone is at risk than to be certain that the risk will materialize.

b. Other procedural requirements. The trend toward criminal-style procedures in civil commitment cases reached its apogee in Lessard v. Schmidt, the 1972 Wisconsin case. In that case, the court required comprehensible and timely notice to the subject of the hearing of the allegations on which the request for commitment was based; similar notice of all rights, including the right to trial by jury; no detention longer than 48 hours without a hearing on probable cause; no detention longer than 2 weeks without a full hearing on the grounds for commitment; and the right to representation by adversary counsel, to exclusion of hearsay evidence, and to remain silent when examined by a psychiatrist or at trial. Some states, in addition, consider information revealed by patients to treating clinicians as privileged (see Chap. 1) and, regardless of relevance, exclude it from evidence at the hearing.

Not all courts, and certainly not most legislatures, have gone this far. The rights to notice, timely hearing, and assistance of counsel have been widely accepted. States vary considerably, though, in rules governing the need for and timing of a probable cause hearing, the use of hearsay evidence, and the right against self-incrimination. Considerable differences may exist between probable-cause hearings (usually conducted a few days after detention, often by nonjudges) and full-fledged commitment hearings. In general, though, the latter are required to stick fairly closely to the kinds of procedures seen in criminal cases.

How closely do the courts adhere to procedural requirements? Studies before the reforms of the 1970s showed hearings in many jurisdictions to be pro forma, with little effort made to investigate the patient’s status. Postreform studies show that many jurisdictions still have difficulty adhering to a full adversarial mode, but in many others, procedural requirements are rigorously observed.


Current approaches to civil commitment, which link dangerousness-based standards with criminalized procedures, are usually critiqued on three grounds, described in the following sections.

1. Exclusion of the Nondangerous Patient in Need of Hospitalization

Many, perhaps most, clinicians believe that existing commitment criteria and procedures make it too difficult to commit patients who are desperately in need of inpatient care. These patients are not dangerous to others and may, at this point, represent no immediate threat to their own physical safety. Yet they are experiencing great emotional distress and run the risk of severe deterioration. Included in this group are manic patients in the early stage of an episode, whose poor judgment is threatening their own well-being and that of their family; disorganized patients with schizophrenia, roaming the streets, but able to beg or find enough food to sustain themselves; and depressed patients in considerable anguish, but so pessimistic about the possibility of improvement that they reject care.

Numerous papers in the professional literature report anecdotes of patients not qualifying for commitment under current standards who later came to harm. Most clinicians can offer examples from their own experience. Surprisingly, though, it has been difficult to demonstrate the existence of such a group in the few empirical studies that have addressed the question. Those patients most in need of treatment seem to be admitted. The “unable to care for self” criteria apparently absorb most of them. Few are released without treatment.

Needless to say, the research to date is not without flaws; noncommittable patients may not make their way to the emergency room, as those who would ordinarily bring them have learned of the futility of the effort. But the failure so far to identify significant numbers of such patients is provocative. It suggests that, in most cases, dangerousness-based criteria, including inability to care for self, may not significantly restrict hospitalization of patients truly in need of care. Rather, it may be the sustained policy of reducing inpatient beds, followed in most states for over 50 years, that accounts for the largest part of the difficulty in hospitalizing persons with mental illness.

2. Difficulties Predicting Dangerous Behavior

Most persons with mental illness are not dangerous, either to themselves or others. In fact, existing research suggests that persons with mental illness are only marginally more likely to be dangerous to others than the non-mentally ill and that the group at increased risk may be substantially limited to those who actively abuse alcohol or drugs. As in the general population, therefore, prediction of future dangerousness requires identification of a small fraction of problematic people in a much larger group. A common objection to the prevalent dangerousness-based commitment criteria is that they require mental health professionals to perform a task that simply cannot be accomplished, the prediction of future behavior dangerous to self or others.

a. Theoretical considerations. Some authors have pointed to the statistical impossibility of accurately predicting a low-frequency event (e.g., violence or suicide) without accruing a large number of false-positive findings (e.g., nonviolent individuals incorrectly classified as violent). These authors cite examples similar to the following: Assuming 1000 individuals with mental illness are screened, of whom 5% are potentially violent, with a test that is 80% accurate in pre-dicting violence, then 40 of the 50 violent patients would be detained. However, given the 20% inaccuracy, 190 of the 950 nonviolent patients would also be detained. The use of a less accurate screening test, which is almost certainly closer to the actual situation, gives even poorer results.

Other factors have been cited as contributing to this tendency toward overprediction. These include the fear of the clinician that if even one violent or suicidal individual is mistakenly discharged, the clinician will be subject to public castigation and to damage suits in the courts; the desire of the clinician to treat illness wherever possible, leading him or her to err in favor of committing potentially treatable patients; and the apprehensions of violence that many psychiatric patients evoke, even in the professionals who deal with them daily. It is difficult to imagine measures that might be effective in reversing these biases, even though serious mental disorders account for only 3% to 5% of violence in the United States each year. Many question whether the benefits of detaining a small number of potentially violent or suicidal individuals are worth the costs of violating the rights of a large number of nondangerous patients.

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Oct 13, 2019 | Posted by in PSYCHIATRY | Comments Off on Legal Issues in Emergency Psychiatry and Involuntary Commitment
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