For the purpose of this paper a friend of mine has asked me for help with his elderly father. My friend’s father lost his best friend after a long battle with cancer. He is very concerned about his father because now he spends each day sitting on the porch drinking a bottle of whiskey and smoking non-filtered cigarettes. He is very concerned that his father is killing himself with the excessive drinking and smoking. He wants my help in his attempt to have his father undergo a civil commitment. This paper will provide a detailed analysis of what my friend must prove at a civil commitment hearing. It will be based on an examination of the process and standards of the civil commitment process. I will also give an analysis of why I agree or disagree with my friend’s desire to have his father committed to a state institution for his own good.
All the literature examined for this paper define civil commitment as involuntary treatment during or after a psychiatric crisis. To have a complete understanding of civil commitment one must first examine the history of involuntary psychiatric hospitalization which is highlighted in an article by Testa and West (2010). It is important to understand how the first asylum came about in the era of institutionalization to the era that became the movement toward deinstitutionalization. Amid the institutionalization era it appears that the providers were faced with an ethical conflict between their patient’s ethical duties of beneficence and respect for the patient’s autonomy.
The commitment standards in the United States evolved from just the right to treatment for mental illness to being based on whether their behavior presented a danger to themselves and/or others. What my friend must prove to a court, is that his father is a danger to himself because of his excessive whiskey drinking and excessive non-filtered cigarette smoking. According to Testa and West (2010) ethical issues that occur such as the one being presented by my friend is what makes civil commitment one of the most controversial practices in the psychological community today. He must prove to a court that his father’s mood, thoughts and daily functions are impair his insight and judgement.
Civil Commitment Process
Through the course of analyzing the process of civil commitment or involuntary treatment I found that it was important to know the laws and standards that determine eligibility for intervention in your state. According to a treatment advocacy center (Carroll, 2018), there are three types of civil commitment that are authorized in 46 states and the District of Columbia:
- Emergency hospitalization for evaluation- In the event my friends’ father is subjected to a crisis response that would result in his being admitted to a treatment facility for a short period for what may be describes as a “psychiatric hold” or a “pick-up.”
- Inpatient civil commitment- If after an emergency evaluation period a judge orders hospital treatment because his father meets the state civil commitment criteria.
- Outpatient civil commitment- A judge can order his father to adhere to assisted outpatient treatment that involves mental health treatment plan while he is living in the community. For example, a mandated outpatient treatment because his father is stopped by the police driving while intoxicated. The plan may consist of group and/or individual therapy.
According to an article that lists state standards for initiating involuntary treatment (2018), it appears that any reasonable adult in most states can petition a court to proceed with determining if an intervention is appropriate for inpatient and outpatient treatment. For emergency evaluations however, a peace officer, psychiatrist, physician, singularly or in combination may be required. They all must be licensed in the state of the crisis intervention. In one article (Stone, 2018), it is said that a mental ill person’s freedom might hinge on the outcome of a single hearing. The article also raises several legal questions:
- What would be his fathers’ constitutional protections against self-incrimination and the right to remain silent?
- What is the process in deciding who presides over the hearing?
- Do the rules of evidence (particularly hearsay) apply?
- In his fathers’ case will the burden of proof stand be, by the preponderance of evidence, clear and convincing, or beyond a reasonable doubt?
- Should his father have the right to an independent evaluation of his psychiatric condition to contest the view of the appointed psychiatrist?
- Is the adversarial hearing the best suited process to address his fathers’ need of crisis intervention?
- If my friend is not his fathers’ legal guardian, or not designated as power attorney, should he be given the right to voluntarily admit his father into a psychiatric hospital?
Stone (2018) also highlights the fact that a criminal defendant is guaranteed greater protection than an alleged mentally ill patient facing civil commitment. The article (Stone, 2018) identifies the term “dangerously mentally ill” as a term that can take away his fathers’ freedom and at the very least his son should require a critical review of whether he should continue addressing the need for psychiatric treatment and at what level. Stone (2018) also highlights a Supreme Court hearing that say the State has a legitimate interest under the parents patriae power to provide care to the mentally ill who are not capable of caring for themselves.
The court also has the authority, with respect to police power, to protect the community from the “dangerously mentally ill.” The two roles of government just described present a conflict that should be addressed when his father’ rights are at stake and he may be involuntarily confined. In the case of Addington v. Texas (1979), the Supreme Court recognized that civil commitment, “constitutes a significant deprivation of liberty. I would also like to inform my friend that in this very important case it sounds as if the courts held the proper burden of proof at the civil commitment hearing would have to be a clear and convincing evidence standard of proof that his father is a danger to himself.
In fact, if my friend was able to get his father into involuntary treatment it could only be for a reasonably short time. It was the Jackson v. Indiana case (1972), that ushered in prohibition on indefinite confinement which holds that it violates the 14th amendment’s guarantee of due process. I believe the bottom line was, that without a finding of dangerousness your father who would be committed through the civil commitment process could only be held there for a reasonable amount of time.
I ran across an article (‘Position Statement 22: Involuntary Mental Health Treatment’, 2018), that highlights the fact that a group called “Mental Health America,” believes that there are limited instances where involuntary treatment must be used as a last resort, for a limited subset of people. They have agreed on guidelines that they believe are designed to ensure the rights we should recognize his father may have:
- Presume his father is competent, because it is basic principal of American law, that states that all adults are presumed competent. Capable of making their own decisions about their own lives and medical decisions that includes mental health care.
- His father should have a test performed to determine if a declaration of incompetence can be declared. I would also be sure to inform my friend that only a small percentage of people with mental health conditions have ever benefited from being declared competent.
- His father would more than like be held to the standard, which is, is he a serious risk of physical harm to himself or to others in the near future.
- The least restrictive alternative when it is necessary for your father to be treated in the least restrictive environment and in a manner to preserve his dignity, autonomy and maximizes his father opportunity to recover.
- Procedural Protections – which gives his father substantial rights to procedural protections that include:
- A judicial hearing where at least one mental health professional is required to testify.
- Your father would have the right to competent counsel, including appointed counsel should he be declared indigent.
- He has the right to be only briefly detained pre-hearing.
- He has the right to an independent mental health evaluation.
- He has the right to appeal an adverse decision
- He has the right to expect that there would be a strict adherence to the standard clear and convincing evidence, that is required by Addington v. Texas, 441 U.S. 418 (1979).
Why I disagree with my Friend
As my friend told me about his father losing a friend, I was taken back to earlier studies in psychology that open my eyes to the notion that we might consider at least five different responses to grieving death that has been outlined by this article (‘Five Stages of Grief by Elisabeth Kubler Ross & David Kessler’, 2018). Easily made available on the internet. Perhaps we could examine the site together so that we could discuss if there are indications of the any of the responses outline that includes: Denial, anger, bargaining, depression, acceptance. I may even seem bias in my belief that if his father were to need help, he would have a greater chance of achieving his desired goal if it is voluntary and is of collaborative design.