(9-28-18) This week, the Treatment Advocacy Center released a study of commitment laws by state, assigning each a letter grade. I will provide highlights of that report in a bit but first a personal story.
I rushed my adult son to a local emergency room when he was having a psychotic break but was told to leave after four hours because the doctor said my son didn’t pose an “imminent danger” to himself or others.
Forty-eight hours later, my son broke into a stranger’s unoccupied house to take a bubble bath and was arrested. He was charged with two felonies – breaking and entering and destruction of property.
Ever since my son’s arrest, I have spoken out against the “imminent danger” criteria. I consider it a fools’ standard. No one can accurately predict dangerousness.
This doesn’t mean that I am against safeguards.
I simply believe waiting until someone becomes dangerous is a recipe for disaster. Our misguided “dangerous” standard contributes to psychotic individuals remaining homeless on our streets, being arrested, and being incarcerated. In certain instances, it has played a key role in mass murders, including the shootings at Virginia Tech and in Tucson.
Many European countries use what is called a “need for treatment” standard. Typically, these countries follow a three doctor rule. It requires a doctor, who is acquainted with the patient, to determine if an individual is having a mental breakdown. A government doctor also investigates and determines if the state has services that can help in recovery. Finally, an independent psychiatrist examines the person to offer an impartial judgment.
Such a system is designed to protect individuals from being wrongfully forced into a hospital. Most have strict guidelines about how long an individual can be held against his or her will with regularly scheduled reviews. At these hearings, a lawyer represents the patient.
Given our sordid history of abuses, I am not certain Americans will ever fully embrace a three doctor rule, but I believe that helping someone – a need for treatment – should be our priority, not waiting until someone becomes dangerous.
Now, let’s take a look at the TAC report.
The United States is effectively running 50 different experiments, with no two states taking the same approach. As a result, whether or not an individual receives timely, appropriate treatment for an acute psychiatric crisis or chronic psychiatric disease is almost entirely dependent on what state he or she is in when the crisis arises.
This inconsistency is not only found between states. It is within them too. In Virginia, administrative law judges decide whether someone needs to be involuntarily hospitalized. For many years, Fairfax County was known as the most resistant in the state when ordering involuntary commitments.
Lack of uniformity often is based on each judges’ personal attitudes, rather than adherence to a standard. If you get a judge who believes involuntarily committed should rarely be applied, those petitioning will have a much higher bar to meet than if the reverse is true.
Summary of key findings from TAC Grading States report:
- Wisconsin achieved the highest combined score when judged by TAC, with 96 out of 100 points. Maryland received the lowest combined score, with 18 out of 100.
- Only seven states (Alabama, Delaware, Georgia, Hawaii, Oklahoma, Pennsylvania and Tennessee) retain an outdated standard requiring that harm to self or others be imminent for a person to qualify for inpatient commitment.
- Five jurisdictions still fail to incorporate grave disability criteria for treatment (Alabama, Delaware, District of Columbia, Maryland and New York).
- Twenty states have incorporated a more modern psychiatric deterioration (need for treatment) standard.
- All but three states (Connecticut, Maryland and Massachusetts) have statutory authority for some type of assisted outpatient treatment (AOT).
- Only two states (California and New Mexico) require local adoption or legislation to implement an AOT program. Tennessee is the only one of the other 48 states and the District of Columbia whose statute directly forecloses the use of AOT from the community.
- Length of order is vitally important for AOT’s effectiveness. However, two states (Arkansas and West Virginia) fail to allow for an initial outpatient order of at least 90 days. Seven states (Alabama, Delaware, Florida, Indiana, Kansas, Minnesota and Mississippi) fail to allow for a renewal order of at least 180 days.
Grave disability standards
* Five jurisdictions have no grave disability criteria for treatment (Alabama, Delaware, District of Columbia, Maryland and New York). Of the 46 that do, we found that 15 have at least one of the identified barriers to treatment, including:
- Three states have vague or ambiguous criteria (New Hampshire, Pennsylvania, Tennessee)
- Ten states require imminent harm (Georgia, Hawaii, Nevada, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Wisconsin, Wyoming)
- Two states require an unreasonably high risk of harm (Massachusetts, New Jersey)
- Three states require that family and friends refuse assistance for an individual to qualify (Florida, New Jersey, Wyoming)
Psychiatric deterioration
Twenty states have adopted a psychiatric deterioration standard.
- Five states have adopted a psychiatric deterioration standard that is vague or ambiguous (Alaska, Arkansas, Colorado, New Hampshire, Oklahoma)
Outpatient Civil Commitment
* All but three states (Connecticut, Maryland and Massachusetts) have explicit statutory authority for some version of outpatient civil commitment. Twenty-two states use the same criteria for both inpatient and outpatient treatment, while twenty-six use at least one separate criteria for outpatient commitment.
One of the recommendations of the Interdepartmental Serious Mental Illness Coordinating Committee (ISMICC) is for states to revisit state civil commitment standards. (Recommendation 2.4) This state-by-state review also was a recommendation that I made when I testified before Congress. Several rights groups oppose any change that is seen as a loosening of an individual’s right to refuse treatment. This has included the Bazelon Center for Mental Health Law.
It is important to remember that the issue is not whether a state has the authority to involuntarily hospitalize someone. Every state already has decided there are times when society is obligated to overrule individual rights for the good of all concerned. The question is when, not if.
One reason why the Treatment Advocacy Center was formed was to seek passage of Assisted Outpatient Treatment laws and its report views involuntary commitment through that perspective.
TAC’s report offers us an important snapshot of what states are currently doing and makes recommendations on what states could do better.
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