Why is “Dangerous” the Criteria?

      I receive emails and letters from parents and family members who have tried to get their loved ones help by having them involuntary committed into a hospital only to be stopped by our legal system. One of the sadder notes came this week from a father whose daughter was so sick that the psychiatrist who first examined her and the independent examiner appointed by the court to review her case quickly agreed that she needed to be hospitalized.

     But when the young woman appeared before a special justice here in Fairfax County, Virginia,  he ignored the two professionals’ recommendations and released the woman because, in his opinion, she did not pose a danger either to herself or to others.

    “Where did this dangerousness criteria come from?” the frantic father asked me in an email.

     The key legal ruling can be found in Donaldson v. O’Connor, a landmark case that made its way to the U.S. Supreme Court in 1975. Kenneth Donaldson was 34 years old, married with three children and working in a defense plant when he suffered a “nervous breakdown.”  He was hospitalized at Marcy State Hospital in New York in 1943 for four months, during which time he underwent 23 electric shock treatments. He returned home and resumed his life until 1956 when he started acting paranoid again. His parents had him taken before a judge.

     Although Donaldson had not committed any crimes nor harmed anyone, he was involuntarily committed to the Florida state mental hospital in Chattahoochee. The judge told him, “You go up there to Chattahoochee for a few weeks and take some of that new medication – what’s the name for it? – and you’ll be right back.” This was when Thorazine was first being touted as a wonder drug.

     But Donaldson learned that getting discharged was not so easy. In fact, he would spend 14 years fighting to be discharged. He would later write about his experiences in a book, Insanity Inside Out, published after he won his freedom. He would insist that one reason doctors refused to discharge him was because he would not admit that he had a mental illness. His refusal was prima facie evidence that he was, the doctors said.

    Donaldson wrote to Dr. Morton Birnbaum, who was both a medical doctor and lawyer, and who is an unsung hero in the history of mental health reform. Birnbaum agreed to defend Donaldson, without charge, and later was joined by a group of civil rights attorneys who would go on to found the Bazelon Center for Mental Health.

     Donaldson’s case eventually reached the U.S. Supreme Court which issued a ruling written by Justice Potter Stewart. Birnbaum argued that if the government locked-up someone in a mental hospital against their will, then it was obligated to provide that person with adequate treatment. To do anything less was to violate their constitutional civil rights to due process. He was trying to use his “right to treatment” argument to force states to improve  their state hospitals and offer meaningful treatment to patients.

     But the court skirted that issue, much to Birnbaum’s dismay.  “There is no reason now to decide whether mentally ill persons dangerous to themselves or to others have a right to treatment,” Justice Stewart wrote. Instead, the majority of the court decided to comment on when a person could be involuntarily committed.

    “This case raises a single, relatively simple but nonetheless important question concerning every man’s constitutional right to liberty,” Stewart explained.

May the State confine the mentally ill merely to ensure them a living standard superior to that they enjoy in the private community? That the State has a proper interest in providing care and assistance to the unfortunate goes without saying. But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution. Moreover, while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends. May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty. In short, a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends. …

       If you had trouble understanding that last sentence, you are not alone. The court did not explain what “without more” means, leaving it up to lawyers to fight over its definition.

    So what did this ruling establish?

      The justices said that a finding of  “mental illness” alone cannot justify a State locking a person up against their will and keeping them indefinitely in simple custodial confinement. It also ruled that there is no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom. Hence the “dangerous” requirement that the father in Fairfax ran into.

    In the wake of that decision, several states further defined dangerous by adopting criteria that required an “imminent danger” or “immediate danger.”  Those standards made it even more difficult to involuntarily commit a person. One of the champions for these tougher standards was an attorney named Bruce Ennis who helped establish the Bazelon Center. He did not believe that anyone should ever be involuntarily committed regardless of how mentally incapacitated that person might be. Ever.

    Over the years, states began to lessen criteria, in part, because persons who were clearly mentally incapacitated where literally dying on the streets because they were not dangerous and they were not getting any meaningful treatment or services. This is where criteria, such as “gravely disabled” or “unable to care for self or others” came into play. The court’s “without more” ambiguous language provided the states with a opening that could be used to add these lesser criteria.

     As the Fairfax father discovered, many judges, especially those with a strong civil rights background,  refuse to consider anything but dangerousness when an ill person is brought before them– even if it means releasing someone who is clearly psychotic — even if it means putting their lives in jeopardy.

      The court’s decision was issued at the peak of the civil rights movement for persons with mental illnesses. It was in the midst of “deinstitutionalization” when states were closing mental hospitals in favor of community treatment.

       What’s your opinion? Is the “dangerousness criteria” a critical protection or a hindence to getting people help? And if dangerousness is outdated, what should be the criteria?