The National Mental Health Association (NMHA) believes that mental health consumers deserve the same degree of personal autonomy as other citizens without disabilities when they receive services. This includes contributing to the decision-making process regarding treatment. This position is an extension of a value articulated in our Vision, Mission, Values and Goals statement that states, "Justice demands that everyone, regardless of disability, has the rights and responsibilities of full participation in society."

However, NMHA also recognizes that there are very limited circumstances when involuntary commitment must be used as a last resort. Involuntary treatment is only appropriate for a very small subset of people with mental illness, and then only if the person is at imminent risk of danger to themselves or others, or substantially incapable of self-care. For example, if one discovers that a friend is on the verge of committing suicide, that person needs help as soon as possible so they will not harm themselves. That person needs to be constantly monitored, counseled, and treated so that they will find alternative ways to deal with their problems. To immediately respond to the crisis situation, it may be necessary to invoke involuntary inpatient commitment. If involuntary inpatient treatment is determined to be necessary, it should be provided in the least restrictive manner possible.

Although NMHA recognizes that involuntary treatment may sometimes be necessary, we do not support the use of involuntary outpatient treatment. It is an overly simplistic and misguided solution to an extremely complex problem. Treatment can only be effective when a consumer embraces it, not when it is coercive and the consumer is forced by the state to submit to treatment. As previously mentioned, much of the legislation that is currently being proposed focuses on outpatient commitment. This legislation is a reaction to crimes that have been committed by consumers who have stopped taking their medications. In comparison to the overall crimes committed, those committed by people with mental illness are few. Similarly, those people who actively refuse available treatment are a small minority.

Involuntary outpatient commitment is not an appropriate way to address people who are mentally ill and are dangerous. The appropriate response is through the involuntary inpatient commitment laws that are already in place. However, it is imperative that these laws are used properly and that the consumer's rights are protected. Furthermore, if involuntary outpatient commitment legislation is successfully passed in a state, it is essential that patient rights be protected through such mechanisms as ombudsman programs, grievance and appeals procedures, and advocacy. Far too often a consumer is forced to submit to whatever treatment is deemed to be professionally appropriate, yet they are provided no outlet or methods in order to object. They either comply, or invoke the penalties of disobeying the court.

Background

In the 1960s and 70s the United States Supreme Court addressed the issue of involuntary civil commitment, and confirmed what consumers and mental health advocates had learned long before - involuntary commitment to a psychiatric facility is "a massive curtailment of liberty." Prior to this determination, the Court also found that "involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law."

The court system was not the only branch of government to address the issue of involuntary commitment. State legislation in the context of involuntary commitment, be it inpatient or outpatient, is not a new occurrence. As of 1995, at least 37 states have laws that focus on involuntary outpatient commitment. What does appear to be a new state trend is the willingness of states to use legislative proposals regarding involuntary commitment in order to respond to isolated incidents of violence, instead of trying to address the root of the problem or to improve the mental health service delivery system.

These proposals largely focus on either amending or implementing involuntary outpatient commitment procedures. At the time of this writing, Arizona, Connecticut, Massachusetts, Nevada, New York, North Carolina, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Virginia, and Wyoming have introduced legislation regarding involuntary outpatient commitment just this year. Several of these states have introduced numerous pieces of legislation. For example, the New York legislature introduced eight bills, one at the urging of the Attorney General. Although these bills range in focus, their purposes are to create and/or simplify the legal procedure for involuntary outpatient commitment.

Definition of Terms

When discussing this complicated, critical and controversial topic, it is important to clarify the terminology used in relation to civil commitment. Although this document will only focus on involuntary commitment, there are several other terms one should be familiar with when discussing this topic.

Civil Commitment. A legal, civil procedure whereby a person is directed by a court to comply with specified psychiatric treatment requirements. Civil commitment can be distinguished from the criminal system in that a person is not imprisoned in a criminal facility, although it can be similar in that it usually involves the loss of liberty. There are two main types of civil commitment, outpatient and inpatient. Some states have separate criteria for each, while others use the same criteria. These categories can be further subdivided into involuntary and voluntary.

Involuntary Inpatient Commitment. Involves continuous supervision and treatment in a residential facility, usually a mental hospital or institution. Purpose is to improve and restore a person's mental or emotional functioning. Results after a court determines that a person is dangerous to self or others. Other standards may include "the likelihood of serious harm", "substantially incapable of self-care" and "gravely disabled."

Involuntary Outpatient Commitment. Court-ordered psychiatric treatment that does not occur in a residential facility. Treatment may consist of taking prescribed medication, reporting to a facility which monitors the person's condition, or participating in individual or group therapy. Hospital release may be conditioned on treatment compliance in an outpatient setting.

Lack of Insight. Clinical term used to describe a person's inability to recognize that they have a problem that needs to be addressed.

Advance Directive. Allows a consumer to provide in advance a clear, written statement of his or her wishes that may apply at some future time when that person's capacity for decision-making or ability to consent to or to refuse treatment may be legally determined to be impaired. Although today every state has some form of this type of statute, its applicability in psychiatric cases may be challenged.

NMHA's Concerns

NMHA is concerned that policy-makers and society continue to make erroneous assumptions about those with mental illness. The stigma associated with mental illness still rears its ugly head and feeds the fear that people with mental illness are violent and dangerous. There is no empirical support for the connection between the two. In reality, the factors of prior violent acts and current substance abuse are much more accurate indicators of violent behavior. Moreover, the risk posed by mental illness is low, and only a small percentage of the violence in our society can be attributed to people with mental illness. (Mulvey, 1994).

Related to the issue of the link between mental illness and violence is society's belief that the only problem is that people with mental illness refuse to take prescribed medications. Therefore, the solution is simple -- consumers must be forced to take their medication. What the media fails to mention is the fact that consumers are sometimes forced to take less effective medications due to restrictive formularies and in order to reduce costs. These medications often have intolerable side effects, and consumers choose to live without medication rather than endure them. To compound the problem, consumers are often faced with the additional obstacle of inadequate or discriminatory healthcare coverage. For example, the lack of parity between physical and mental healthcare coverage often results in higher co-payments for psychiatric medications.

Another major concern is that people are using involuntary commitment as a means to access treatment. For example, in rural communities in the state of Virginia, when a consumer decides that they need to admit themselves into a treatment facility, they are told that if they agree to be involuntarily committed they will be transported to the facility. However, consumers may not realize the consequences of their actions, and are not aware of the ramifications. For instance, inpatient voluntary commitment may require a 72-hour hospital stay, but requires that notice be given to the facility 48 hours prior to the consumer's release. In effect, the consumer is forced to stay in the hospital for five days.

Furthermore, some community systems are so overwhelmed and underfunded that the only people who can access services are those whose treatment is mandated because they are coming out of institutions or are subject to a court order for outpatient treatment. This reality continues to stigmatize individuals instead of confronting the real problem of inadequate systems. The problem is systemic, yet it is the consumer who is penalized and who suffers. Making it easier to legally commit people to treatment is not the answer. The answer is making comprehensive systems of care available to consumers in their own communities.

Research is lacking in this area. Anecdotally, we as advocates know that the legal status of the person (i.e., whether they have been involuntarily committed or not) has little to do with whether their treatment is successful. However, the research that has been conducted, for example, the Bellevue Study on Outpatient Commitment, has its limitations. While the study is limited due to its forced design by the New York Legislature in 1995, it suggests that court-ordered outpatient commitment does not produce a better outcome for the consumer or community than enhanced services alone.

Despite the quality of the studies and their outcomes in this area, involuntary outpatient commitment appears to increase the use of services because it forces the system to make those services available. Expanding service options would accomplish the same goal, but without coercion, the trauma of a court appearance, or the denial of individual rights to make decisions about one's own healthcare.

Another concern is the moral dilemma that such a system creates for providers. If a provider knows that the only way a consumer can receive the services they need is through involuntary treatment, should they urge the consumer to agree to involuntary commitment? Once a consumer agrees to do that, they lose a great deal of decision-making power, not to mention the stigma associated with the process. However, if there is no real treatment alternative, can a provider, in good conscience, allow the consumer to mentally and emotionally decompensate due to lack of services?

Lastly, involuntary commitment, especially inpatient, is expensive to implement and can be detrimental to the consumer. If a consumer can voluntarily receive the services they need in a community-based setting, why spend the money on involuntary inpatient commitment? Why not spend money on services that are consumer-centric instead of forcing treatment that the consumer will naturally resist. The latter forces consumers to conform to mandated treatment instead of allowing them to contribute to their own recovery and treatment. In addition to the expense, this practice degrades the spirit and integrity of the consumer.

Recommendation

NMHA believes that mental health consumers deserve the same degree of personal autonomy as those citizens without disabilities. However, NMHA also recognizes that there are very limited circumstances when involuntary commitment must be used as a last resort. Consistent with this philosophy is the idea of advance directives. Although there are several alternatives to involuntary commitment, NMHA recommends the use of advance directives. By allowing consumers to use this construct, policy-makers can help assure that mental health services are as effective as possible, and that consumers are involved in decisions about their treatment.

Advance directives can be found in both the mental health and physical health context. Only a few states exclude psychiatric healthcare from their generic advance directive statutes, and those that do often have laws that specifically address advance directives in the mental health context. There are two types of advance directives. The first is an instruction directive, which refers to a legal document that stipulates a consumer's wishes regarding his or her treatment. The legal document is consulted in the event that the consumer's mental illness renders him or her incapacitated or unable to make decisions regarding their treatment. As long as their wishes are not inconsistent with acceptable medical practice, physicians and other professionals are expected to follow the instruction directive.

The second type of advance directive is termed a durable power of attorney. This instrument allows consumers to proactively assign decision-making authority to another person of their choosing when they are unable to do so. This is the more common form of advance directive. The agent is then responsible for carrying out the consumer's wishes if the person is legally determined to lack the capacity to make decisions.

Although advance directives can be a real method of empowerment for consumers, they are not the perfect solution. In fact, their effectiveness can be reduced by a variety of circumstances, including: healthcare providers who refuse to honor the advance directive; lack of knowledge that it exists; the advance directive conflicts with the family's wishes; people with mental illness may not be able to identify someone to assign decision-making authority to; and uncertainty around the legal significance of advance directives.

Conclusion

Clearly, the topic of involuntary commitment is extremely complex and controversial. Each state must fight its own battle regarding the balance between the safety of the general public and the rights of people with mental illness. NMHA has pledged to provide leadership to the policy-makers who choose to look at the bigger picture rather than focusing on the stereotypes and stigma that still run rampant.

¹Humphrey v. Cady, 405 U.S. 504, 509 (1972).
²Specht v.Patterson, 386 U.S. 605, 608 (1967).