An experimental analysis of the civil commitment recommendations of psychologists and psychiatrists

Legal and nonlegal factors influencing the civil commitment recommendations of psychologists and psychiatrists separately and as a whole were investigated using an experimental design. One hundred and seventy-six psychologists and psychiatrists made recommendations for or against commitment for a series of clinical vignettes wherein the five facets of commitment criterion, legal committability, clinical treatability, alternative resources and presence of psychosis were systematically varied. Results revealed that all facets contributed independently and in combination to the commitment decisions of participants as a whole. It was concluded that mental health professionals may utilize a variety of types of information, beyond the relevant legal criteria, in making actual decisions to initiate civil commitments.     

Psychopathy, criminal responsibility, and civil commitment as a sexual predator

Recent judicial decisions regarding commitment under sexual predator statutes and commentary addressing the legal significance of psychopathy provide an interesting opportunity to reflect upon the exculpatory significance of psychopathy and the appropriate relationship between criminal conviction and police power civil commitment. This paper examines the legal significance of psychopathy for the purposes of criminal responsibility and of civil commitment under sexual predator statutes. By examining the significance of psychopathy for each of these legal institutions, it clarifies our understanding of the legal significance of psychopathy and of the relationship between these institutions. This process illuminates the defensible functions and boundaries of each institution and clarifies the nature of the impairment that should qualify an individual for confinement by each. This analysis interprets criminal conviction and police power commitment, including sexual predator commitment, as integrated institutions of social control intended to provide a coherent approach to psychopaths as well as to others who require state intervention under the police power.     

Telepsychiatry with rural American Indians: issues in civil commitments

The use of live interactive videoconferencing to provide psychiatric care, telepsychiatry, has particular relevance for improving mental health treatment to rural American Indian reservations. There is little literature on civil commitments in telepsychiatry and none specifically addressing this topic among American Indians. This article reviews telepsychiatry in the mental health care of American Indians, civil commitments and telepsychiatry in general, and the current state of civil commitments in American Indian communities. We conclude by considering commitment through telepsychiatry in rural reservations and offering guidelines to assist practitioners in navigating this challenging landscape. Civil commitments of American Indian patients residing in rural reservations can be successfully accomplished through videoconferencing by thoughtful and informed clinicians. However, much more work is needed in this area, including research into the cultural attitudes and perspectives towards commitments and further inquiry regarding potential legal precedents, as well as case reports and examples of this work.     

Aesthetic Disobedience

This article explores a concept of artistic transgression I call aesthetic disobedience that runs parallel to the political concept of civil disobedience. Acts of civil disobedience break some law in order to publicly draw attention to and recommend the reform of a conflict between the commitments of a legal system and some shared commitments of a community. Likewise, acts of aesthetic disobedience break some entrenched artworld norm in order to publicly draw attention to and recommend the reform of a conflict between artworld commitments and some shared commitments of a community. Considering artistic transgressions under the concept of aesthetic disobedience highlights often‐overlooked features of modern artworld practices. Most significantly, it draws attention to the deliberative participation of a wide variety of citizens of the artworld, including not just artists and performers but also members of audiences, in the transformation of the rules and boundaries of the artworld itself.     

Predicting the present: expert testimony and civil commitment

This article uses the Supreme Court's decision in Daubert as an opportunity to address a chronic concern regarding the disparity between mental health law as officially enunciated and the practical application of that law. After Daubert, admissibility of expert evidence under the federal rules requires a qualified expert, a reliable basis for the testimony, and relevance to the legal issue. Ongoing psychological research pursues empirical data that expands the scope of psychological expertise and clarifies its limits. This article addresses the requirement of relevance by examining the logical relationship between the psychologist's actuarial and clinical expertise and the legal issues addressed by the court in civil commitment proceedings. Ideally, Daubert might stimulate a process of cooperative analysis in which psychologists and lawyers clarify the proper roles of psychological experts and of the courts with which those experts interact. This article begins that project by clarifying the legal determination required in civil commitment proceedings and by explicating the relationship between the responsibilities of experts and those of courts.     

Sexual predator commitment laws: lessons for law and the behavioral sciences

Sex offender commitment laws use a mental health commitment model to lock up the "most dangerous" sex offenders after their prison sentences expire. In Kansas v. Hendricks, the United States Supreme Court rejected the major constitutional challenges to these laws. The Hendricks case clarifies important ambiguities about the use of civil commitment to enforce "police power" interests, as opposed to "parens patriae" interests. Hendricks also clarifies the role of "treatment" in justifying civil commitment. While there remain some important legal issues to be resolved, the future direction of sex offender commitment schemes will turn most significantly on policy decisions. The behavioral sciences can play an important role in shaping these decisions. The most significant questions concern whether expensive commitment programs are the most effective use of scarce treatment and supervision dollars. Additional research should be directed to improving dynamic predictors of recidivism, operationalizing "inability to control" standards, judging the "social meaning" of commitment laws, and assessing the potential treatment disincentives of these laws.     

Competence to proceed in SVP commitment hearings: Irrelevant or fundamental due process right?

Sexually Violent Predator (SVP) civil commitment, intended to incapacitate offenders and protect the public, has been implemented in 21 jurisdictions. While respondents in traditional civil commitment proceedings need not be competent to proceed, SVP commitment may present a greater deprivation of liberty and therefore greater procedural protections may be merited. Statutes and case law regarding competence in this context address two issues: competence to challenge unproven sexual offense allegations and competence to participate in the SVP commitment process. Of the 14 states that have addressed the issue, one concluded that respondents must be competent to challenge unproven allegations and one concluded that all SVP respondents must be competent to participate in the commitment process. Differences between SVP and traditional civil commitment, the rationale underlying the competence requirement, and decisions regarding competence in SVP commitment are reviewed to inform debate regarding whether SVP respondents must be competent to proceed with the commitment process. Copyright © 2010 John Wiley & Sons, Ltd.     

A Lawyer in the Counseling Center

Today's college students are finding an increasing need for legal information. At California State College, Los Angeles, a lawyer from the community was retained by the college counseling center to consult with students who had legal questions. During the academic year 1968-69, 302 students took advantage of this service. Although most of their questions dealt with selective service, other areas of concern included landlord-tenant matters, domestic relations, and criminal and civil law. Student reactions were sampled by means of a questionnaire. The general response was highly favorable, thus supporting the need for a legal counseling service on the college campus.     

Civil commitment: An economic perspective

The rules governing the civil commitment of mentally ill persons result from complex legislative and judicial processes. In this article an economic approach to the evaluation of commitment laws is presented. A related economic model is applied to the process by which commitment rules are selected and changed. In the economic approach the benefits and costs of civil commitment are specified and analyzed to determine an optimal number of commitments. A graphical model is used to reinforce the conclusions. The distinction between private and social benefits and costs is used to derive the conclusion that some civil commitment is consistent with the economic principle of optimality. Failures in the political process are shown to generate a need for judicial intervention to correct for possible biases toward overcommitment and an inadequate quality of care. An alternative to the economic evaluation of commitment rules, based on the work of Rawls, is also presented.     

Law and LGBQ-Parent Families

This paper addresses how the law affects LGBQ-parent families. We first outline the legal landscape that LGBQ parents face in the US, underscoring that it varies drastically by state and creates inequity for families. Reviewing existing social science research, we then address how the law affects three processes for LGBQ people: desiring parenthood, becoming a parent, and experiencing parenthood. Our review indicates that the law affects if and how LGBQ people become parents. LGBQ people consider the law as they make decisions about whether to pursue adoption, donor insemination, or surrogacy and often view the latter two pathways as the most legally secure. Further, the law continues to be salient for LGBQ parents throughout parenthood and affects family well-being. Specifically, legal inequity diminishes parent’s well-being, the relationship among couples who are parenting, and parents’ ability to effectively advocate for their children in institutional settings like healthcare contexts. Finally, we address directions for future research for scholars interested in the law, family processes and outcomes, and LGBQ families.     

Why the gap? Practice and policy in civil commitment hearings.

The failure of civil commitment procedures to meet statutory requirements is one of the more reliable findings in the applied social sciences. Most states now require specific legal procedures and behavioral standards for involuntary hospitalization. Nonetheless, empirical studies have demonstrated that commitment hearings are rarely adversarial and clinical concerns continue to take precedence over legal issues. These findings are analyzed in the context of three related issues: the grounds for commitment that are used in civil commitment hearings, the particular difficulties of recommitment hearings, and the shortcomings of the national policy of deinstitutionalization. The authors conclude that a primary cause of the gap between legal standards and actual practice is the absence of viable, less restrictive alternatives to inpatient treatment.     

L’expertise judiciaire n’est pas un préalable obligatoire au changement de sexe à l’état civil pour les personnes transsexuelles

The changing of the sex designation on the civil status for transsexual persons in France is not governed by the legislator but by the case law, the Court of cassation. This system is now insufficient, given the unequal treatment between citizens among jurisdictions. Courts and ministerial orders cannot compensate such a situation. A legislative intervention seems to be necessary. The recent decisions from the Court of cassation have awakened fears regarding the so-called obligation of a legal and medical examination before a changing of the sex designation. We do consider that it is not a preliminary stage to succeed for such a proceeding.     

Kant on Ethical Institutions

This paper analyzes the ethical‐political dilemma in Kant’s work, sometimes expressed through the metaphor of the “crooked wood of humanity.” Kant separates external and internal freedom and the types of legislation each form of freedom requires (coercive and noncoercive). Yet, he also argues that corrupt political institutions adversely affect individual ethical development, and, reciprocally, corrupt inner dispositions of a populace adversely affect the establishment of just political institutions. I argue that a major way in which Kant addresses this vicious circle is through ethical institutions, that is, noncoercive public resources for articulating and disseminating the principles of the moral law. I discuss the idea of an ethico‐civil society or ethical community formulated in the Religion as an ideal model for ethical institutions mediating the ethical and the legal‐political in a noncoercive, progressive manner.     

Thought experiments without possible worlds

The method of thought experiments or possible cases is widespread in philosophy and elsewhere. Thought experiments come with variegated theoretical commitments. These commitments are risky. They may turn out to be false or at least controversial. Other things being equal, it seems preferable to do with minimal commitments. I explore exemplary ways of minimising commitments, focusing on modal ones. There is a near-consensus to treat the scenarios considered in thought experiments as metaphysical possibilities (most aptly treated as possible worlds). I challenge this consensus. Paradigmatic thought experiments do not have to come with a commitment to metaphysical possibilities. In the first section, I point out difficulties with the prevailing focus on metaphysical possibilities. In the second section, I present alternative formalisations of a paradigmatic thought experiment, the Gettier experiment. Gettier’s words leave open the kind of possibilities under consideration. The standard way of spelling out Gettier’s argument uses metaphysical possibilities. One alternative proposal uses nomological possibilities. A second one uses epistemic possibilities. My modest conclusion: as long as it is not established that a thought experiment requires a commitment to metaphysical modality, one should avoid such a commitment. My preferred way of doing so is to replace the commitment to one particular formalisation by a commitment to a disjunction of alternative formalisations.     

The effectiveness and ethical justification of psychiatric outpatient commitment

Studies link involuntary outpatient commitment with improved patient outcomes, fueling debate on its ethical justification. This study compares inpatient utilization for committed outpatients in the 1990s with those who were not under outpatient civil commitment orders. Findings reveal committed outpatients had higher utilization of inpatient services and restraint episodes prior to their commitment compared with a control group. Committed outpatients also were more likely to have been on discharge status at the time of admission, have been admitted involuntarily under emergency legal procedures, and have had a greater number of admissions and hospital days prior to their commitment. Following commitment, patients had fewer hospitalizations, shorter lengths of stay, fewer seclusion episodes and hours, and fewer restraint episodes and hours. Findings are discussed within the context of parens patriae and therapeutic jurisprudence, and support medical and public policy justifications for ethical uses of outpatient civil commitment laws for seriously mentally ill patients.     

The uneasy (and changing) relationship of health care and religion in our legal system

This article provides a brief introduction to the interplay between law and religion in the health care context. First, I address the extent to which the commitments of a faith tradition may be written into laws that bind all citizens, including those who do not share those commitments. Second, I discuss the law’s accommodation of the faith commitments of individual health care providers—hardly a static inquiry, as the degree of accommodation is increasingly contested. Third, I expand the discussion to include institutional health care providers, arguing that the legal system’s resistance to accommodating the morally distinct identities of institutional providers reflects a short-sighted view of the liberty of conscience. Finally, I offer some tentative thoughts about why these dynamics become even more complicated in the context of Islamic health care providers.     

Patient's choice to suicide v. treater's duty to prevent suicide: Some changing clinical dilemmas

The evolution of civil commitment procedures is seen as reflecting changing social and ethical values regarding individual liberty versus protection of self and others. The dilemma of dealing with the modern suicidal patient places the psychiatrist at the interface of conflicting societal expectations. The legal aspects of civil commitment are seen as not necessarily compatible with the best clinical course for the suicidal patient. The relationship of the process of the civil commitment to the process of treatment is briefly explored.     

Civil commitment: A review of empirical research

This article presents a comprehensive review of empirical micro-level research which has attempted to evaluate changes in civil commitment law in the United States. It groups studies by category of the general question they address: Who are being processed through civil commitment and who are being committed? How dangerous are civil commitment candidates on admission, in the hospital, and after release? To what extent are court officers adhering to procedural protections in form and in intent? To what extent have restrictive criteria influenced the behavior of medical professionals in processing individuals through civil commitment? and What happens to individuals after their civil commitment experience and their involuntary hospitalization? The article points to needed research and concludes by summarizing existing research from the perspective of finding a balance between civil liverty and benevolence.     

The right to refuse treatment in Oregon: A two-year statewide experience

The right to refuse treatment seems well established for psychiatric patients. Individual states, however, have very different procedures for managing this right and for overriding the refusal. Oregon's administrative procedure for override depends on an evaluation by an independent examining psychiatrist. This article empirically examines the 432 refusals leading to override requests in three Oregon psychiatric institutions in 1983 and 1984. Treatment refusal was found to be a common occurrence in all age groups. Those who refused treatment were seriously ill, unemployed, single individuals with previous psychiatric hospitalizations. Most refused treatment because of denial of their illness or delusional thinking about medication. Most refusals were overridden following the independent psychiatrist's examination. Because of the significant cost of the override procedure to the patient and the mental health system, the authors propose a new procedure which combines parts of the current procedure with a requirement that, at the time of the civil commitment hearing, the judge makes a separate decision as to the patient's competency to make treatment decisions.