Dangerousness and mental health treatment: civil commitment in the USA.

Civil commitment standards in the USA have undergone dramatic changes over the past 50 years. The relevant statutes have largely focused on treatment, but how this treatment has been administered and the placement of individuals undergoing commitment have been dynamic. There have also been changes in commitment as it relates to sexual offenders and individuals deemed not competent to proceed to trial. As legislatures strive to find a balance between mandated treatment and civil liberties, changing standards of commitment provide opportunities for scholarship and research.

Civil commitment, a mechanism for mandating treatment due to dangerousness, is one of the most contentious areas of mental health law. In the USA the contentiousness is related to the often precarious balance of protecting the civil liberties of an individual with a mental illness versus protecting society from potentially violent individuals. The government has a right under parens patriae to protect individuals who are unable to care for themselves or are a danger to themselves; in addition, the government has authority under police power to protect society. When properly done, these two apparently orthogonal ideas can work harmoniously, and both the rights of the individual and the protection of society will be safeguarded. This paper reviews several issues related to the civil commitment process in the USA, including laws and due process, recent developments in civil commitment and treatment issues in civil commitment.

Civil commitment law, dangerousness and due process

Civil commitment laws have recently undergone greater scrutiny as they are viewed as a potential prophylactic to violence in the wake of mass killings at Virginia Tech University in Blacksburg, Virginia, a political event in Tucson, Arizona, and a shooting at an elementary school in Newtown, Connecticut. This was especially evident in the case of Seung-Hui Cho, who underwent a civil commitment hearing prior to the murders of 32 people at Virginia Tech. During that hearing it was decided that Cho did not meet the criteria for civil commitment because he was deemed not ‘imminently dangerous’ (Pfeffer, 2008). Likewise, there is evidence that Jared Lee Loughner, who killed 6 and injured 14 more in Tucson, Arizona, has a significant mental illness requiring treatment (Winter, 2012). Unfortunately, these events have continued to perpetuate negative stereotypes, although the actual relationship between mental illness and violence is relatively slight (Elbogen & Johnson, 2009).

The early laws authorising civil commitment were not predicated on dangerousness; instead, states could commit people to an in-patient facility for treatment if they had a mental illness and were good candidates for in-patient care. Such commitments generally relied on the opinion of one mental health professional. Behaviours that would qualify an individual for commitment included mild forms of mental illness and even behaviours that might be considered only annoyances. With the deinstitutionalisation of the 1960s, civil commitment laws began relying on imminent dangerousness. Imminent dangerousness standards are geared towards the use of governmental powers to protect the public from dangerous individuals with mental illness, but have been criticised as unnecessarily narrow, in that few individuals (only the most impaired) qualify for treatment under them.

Early commitment laws involved few due process rights. Individuals did not have a right to cross-examine witnesses, present their own rebuttal witnesses or petition for release. In the landmark case of Lessard v. Schmidt, Alberta Lessard was civilly committed because of her ‘mental illness’. Lessard, on her own accord, hired an attorney and argued that allowing for detention up to 145 days without a hearing was a violation of her civil liberties. In the United States District Court for Eastern Wisconsin, Lessard prevailed on numerous grounds, including that individuals undergoing civil commitment proceedings should be afforded basic due process rights and that in order for the state to prevail in a civil commitment hearing there needed to be a finding of dangerousness.

Although limited to Wisconsin, other states soon attached due process rights to civil commitment proceedings. Notably, the Supreme Court of the United States in Baxstrom v. R.E. Herold ruled that prisoners in the New York correctional system referred for commitment at the time of their discharge were entitled to a jury hearing to protect their due process rights. The case of O’Connor v. Donaldson exemplified the rights of the individual as the Supreme Court ruled that a hospital was not allowed to detain a non-dangerous person with a mental illness who could survive independently or with available help. This decision underscored the notion of least restrictive placement, especially with an individual who was deemed not dangerous to self or others. Finally, in Addington v. Texas, the United States Supreme Court spoke directly to the issue of burden of proof and evidentiary standards related to civil commitment and proposed that the minimum evidentiary requirement for commitment was ‘clear and convincing evidence’; however, states would be free to adopt the more stringent ‘beyond a reasonable doubt’ criterion.

Recent changes in the construct of civil commitment

In recent years, civil commitment standards again have changed as two classes of individuals have garnered attention: individuals committed after a legal finding of not competent to stand trial and sex offenders civilly committed after serving prison sentences but still deemed to be a danger to others. In Kansas v. Hendricks, the United States Supreme Court held that a Kansas law authorising the civil commitment of sex offenders, for the ostensible purpose of providing them with treatment in order to prevent future sex offences, was constitutional. These civil commitment laws, now enacted in several states, are typically referred to as ‘sexually violent persons’ or ‘sexually violent predator’ (SVP) acts and allow the state to commit individuals, providing the individual is judged to remain sexually dangerous. Three things are noteworthy regarding these laws. First, they are highly controversial, with arguments about their constitutionality and the high cost to taxpayers. Second, as elucidated in Kansas v. Crane, states have wide latitude in defining mental illness under these laws. Third, the concept of dangerousness is not narrowly construed, as it has expanded in terms of both imminence and behaviour.

States have needed to develop innovative strategies to manage individuals deemed not competent to proceed to trial and committed as in-patients due to dangerousness. Rooted in the landmark case of Jackson v. Indiana, which placed limits on the time allowed for the commitment of an incompetent defendant, states have routinely struggled with individuals committed for competency restoration. This is especially true if the individual is found not competent to proceed to trial and not likely to be restored. Unfortunately, the criteria elucidated in the Jackson case are often not employed (Hoge, 2010). Legislatures must continue to balance the rights of the individual found not competent to proceed to trial and community safety.

Civil commitment and treatment

The purpose of civil commitment is to provide treatment, with the goal of reducing risk, whether that involves risk to self, violence to others, or recidivism specific to sexual offences. Legislatures have several options for administering commitment laws. For example, the creation of out-patient civil commitment laws represents a vital paradigm shift in mandated treatment. Out-patient commitment has the dual advantage of protecting individual liberties in the context of mandated treatment (Erickson et al, 2005). By providing an alternative to in-patient commitment, states save money, treat persistent mental illnesses with community-based programmes and minimise problems associated with the non-treatment of mental illness. A prime example of the move to out-patient commitment in New York occurred after an individual with a chronic mental illness pushed Kendra Webdale in front of a subway train, leading to her death. This led to the creation of Kendra’s law (Appelbaum, 2005).

Conclusions

Civil commitment laws continue to evolve, with changing standards in mental healthcare often spurred by tragic events that bring the nexus between violence and mental illness into our living rooms. There appear to be two certainties regarding civil commitment standards in the USA. First, commitment laws will remain controversial and contentious as states try to strike a balance between rights and safeguards. Second, there are likely to be further changes in civil commitment standards with the advent of new treatments and, unfortunately, further acts of high-profile violence.