Our Focus On ‘Danger’ For Involuntary Commitments Is Out-of-Step With The World

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How do other countries handle civil commitments to mental hospitals?

Forcing someone into treatment against his/her wishes is not only controversial in our country, but in others too.  In the U.S., each state establishes its own specific criteria, but all states require someone to be a danger to themselves or others before he/she can be forced into a hospital. [Several have adopted looser language, such as  "gravely disabled" or "unable to care for self" to their criteria, but dangerousness  remains the key criteria.]

I was surprised recently when I discovered that our focus on dangerousness  is out-of-step with the rest of the world. Most other countries rely on what is called a  “need for treatment” standard.

Only one nation has more stringent rules than we do. That country is Germany and, I assume, the reason it has established so many hurdles in its civil commitment process is because of abuses in its NAZI era past.

Our checkered past also is at the root of why we adopted “dangerous” behavior as our threshold.  Before the 1970s, it was much to easy to force someone into a mental hospital and commitments were often de facto life sentences.

‘Danger to self or others’ is rooted in three key legal cases.

In O’Connor v. Donaldson,  the U.S. Supreme Court ruled that a:

“State cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”

In Lessard v. Schmidt, a federal district court in Milwaukee narrowed the criteria by ruling that  involuntary commitment is  only permissible when “there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others.” That same court for the first time required that commitment proceedings provide a person with a mental illness all of the protections accorded to a criminal suspect — among them a right to counsel, a right to remain silent, exclusion of hearsay evidence and a standard of proof beyond a reasonable doubt.

In Addington v. Texas, the U.S. Supreme Court toughen the law even more by raising the “burden of proof” required to commit persons for psychiatric treatment from the usual “preponderance of the evidence” standard required in civil cases to a much higher “clear and convincing” evidence standard.

Austria, Belgium, Germany, Israel, the Netherlands, Northern Ireland, Russia, Taiwan, and Ontario, Canada, have followed our lead by making dangerousness the key factor in civil commitments. Nearly all other nations use a “need for treatment” standard, which might consider dangerousness but does not require it.

The standard used in most countries is patterned after the United Kingdom’s laws. Although the 1983 Mental Health Act in England and Wales has been amended, its basic structure is the same as it has been for the past thirty years.  An individual can be involuntarily committed if he/she is suffering from a mental disorder:

1. of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital…

2. hospital admission is necessary for the health and safety of the patient or the protection of other persons.

Who makes those decisions?

In England, it takes two doctors. Normally, one of them is the patient’s primary doctor — someone who has known him/her for a period of time. The other is a psychiatrist who has examined the patient and has received specialized training in triaging patients. Once those two doctors agree, an order is presented to an Approved Mental Health Professional, usually a social worker, who also interviews the patient, reviews the doctors’ decisions, and implements the commitment. The patient is held for up to 28 days before his/her case is reviewed by a mental health tribunal that is composed of a doctor, a lawyer and lay person.  In England, family members are the most likely individuals to contact a doctor and seek a forced commitment.

In an article entitled, The Evolution of Law Regulating Psychiatric Commitment in France, published in the July 2013, of Psychiatric Services, the newest rendition of France’s mental health laws is explained. France is generally considered to have a “middle ground” standard between the U.S. and England. Under France’s July 2011 Act, an individual can be held up to 72 hours for observation without their consent simply at the request of  family members or friends. Of course, a 72 hour hold can also be filed by doctors, social workers or the police if they observe or suspect dangerous behavior.

French law requires an individual to undergo a thorough physical examination during the 72 hour hold. They must also be seen by a team of psychiatrists within the first 24 hours and then again at the end of the 72 hour hold. At least three doctors must agree that a person needs to be hospitalized. If that happens, the patient is held in a hospital for twelve to fifteen days before his case is taken before a judge. The patient can speak directly to the judge and argue for release only at that point.

Some countries have tweaked their laws in unique ways. In New South Wales, Australia, which adopted a U.S. like danger criteria, the law considers “the risk of financial harm” as evidence of “dangerous” behavior but for only persons who are judged manic. That provision was added at the request of families who were worried about individuals with bipolar disorder leaving their families destitute during wild spending sprees.

A 1991 statute in Israel allows involuntary commitment of individuals who pose a danger to others by causing them “severe mental suffering” which includes such acts as terrorizing  their neighbors with threatening actions, comments or by becoming a public nuisance.

While assisted outpatient treatment laws are controversial here, most European countries enforce “mandatory community treatment” as a cost saving step to hospitalization.

Forcing someone into a mental hospital should always be a last resort. If we had better community services, I believe the number of individuals who needed to be committed would drop dramatically. However, when commitments are necessary, a majority of nations have decided that doctors should be in charge of making those decisions.

Not us. We rely on administrative law judges who often have no specialized training and are appointed by their local chief judge to hear cases as a favor because it is a way for them to earn a few extra bucks on the side.

 

About the author:

Pete Earley is the bestselling author of such books as The Hot House and Crazy. When he is not spending time with his family, he tours the globe advocating for mental health reform.

Learn more about Pete.