U.S. involuntary mental health commitment statutes: requirements for persons perceived to be a potential harm to self

The civil commitment statutes of all 50 states and the District of Columbia were reviewed to determine: (1) What is required for a person who is believed to be at serious and imminent risk of self-harm to be eligible for involuntary hospitalization; and (2) Whether an attempt to involuntarily hospitalize was required or was merely an option when the requirements found in number 1 were met. The analysis revealed that nearly 85% of the jurisdictions require dangerousness to self to be the result of a mental illness, and only two jurisdictions mandate attempts at involuntary commitment if a person is deemed to be an imminent harm to self. These results have implications for practice with individuals who are suicidal.     

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.     

Sexually Violent Predators: Toward Reasonable Estimates of Recidivism Base Rates

The sexual recidivism rate of sex offenders is a controversial issue. Perhaps as controversial is the sexual recidivism rate of the select group of sex offenders who are examined pursuant to sexually violent predator (SVP) statutes. At present, reliable estimates of SVP recidivism are unavailable. We propose that reasonable estimates of SVP recidivism can be reached by considering three available pieces of data: (i) a likely recidivism rate of the general population of sex offenders; (ii) procedures typically followed by jurisdictions that civilly commit sex offenders; and (iii) classification accuracy of procedures. Although sexual recidivism rates vary across jurisdictions, the results of our analyses suggest sex offenders referred for examination pursuant to SVP statutes recidivate at substantially higher rates than typical sex offenders. Our results further suggest that sex offenders recommended for commitment as SVPs recidivate at even greater rates than SVP respondents who are not recommended for commitment. We discuss practice and policy implications of these findings. Copyright © 2013 John Wiley & Sons, Ltd.     

Expert Testimony and Sexual Predator Statutes after Hendricks

The recent decision of the United States Supreme Court in Kansas v. Hendricks (1997) upheld a sexual predator statute that authorizes civil commitment of certain sex offenders who have been convicted of sexual offenses and have served criminal sentences for those offenses. This case raises a variety of Constitutional questions in the United States, but it also raises a series of interesting questions about the appropriate scope of expert testimony by psychologists regarding commitments under these statutes. These issues regarding expert testimony are significant both in their own right and because addressing them confronts one with serious difficulties regarding the normative foundations of the statutes. This paper examines the significance of the Court's brief substantive due process analysis for the role of psychological expert testimony regarding commitment under these statutes, and it identifies but does not attempt to resolve the associated normative concerns regarding the justification for commitment under these statutes.     

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.     

Short-term involuntary examination of older adults in Florida

The elder population continues to grow rapidly in many countries. Florida's elder population is growing faster than most states', with over one-quarter of the Florida population projected to be aged 65 and over by 2025. Involuntary examination (i.e. emergency commitment) under a state's civil commitment law is one means by which older adults experience assessment for acute mental health care. In Florida, the civil commitment law permits the involuntary examination of an individual for up to 72 hours to determine whether the person meets standards for involuntary treatment. From calendar year 2001 through 2005, there were 531,091 involuntary examinations in Florida for 301,886 people of all ages. Thirteen percent were 60 years and older at the time of their examination. The purpose of this paper is to describe the characteristics of older adults subject to involuntary examination and the nature of their examinations. While these data permit a number of inferences, there is an expansive area of research and policy analysis that remains untapped and would permit better understanding of how older adults experience such examinations. These research and policy issues will also be discussed.     

Potential erosion of psychotherapist-patient privilege beyond California: dangers of "criminalizing" Tarasoff.

The "dangerous patient exception" to psychotherapist-patient privilege, adopted almost a decade before the celebrated case of Tarasoff v. Regents of the University of California (1976), was mentioned in a footnote to that decision in the context of an analogy. Although intended to permit testimony in civil commitment proceedings, this exception has been used to "criminalize" the Tarasoff duty in California. California courts eroded the privilege initially primarily to permit victims to sue psychotherapists and later to require psychotherapists to testify against their patients in criminal proceedings and appear to have confused evidentiary privilege and confidentiality. If consistent, similar reasoning in California in the future should allow therapists to testify against their patients if they were civilly committed in the past for dangerousness and attorneys to testify against their clients in criminal cases if at some earlier time they believed their clients represented a risk of future harm. Although most other jurisdictions may not word their privilege exceptions for civil commitment in the same way as California, most states have some type of privilege exception for civil commitment that could allow for such an interpretation. The United States Supreme Court in Jaffee v. Redmond (1996) found a psychotherapist-patient privilege, but stated in a footnote that an exception to the privilege would exist if a serious threat of harm to the patient could be averted only by means of disclosure by the therapist. Other jurisdictions have begun to consider these issues. Rather than being unique to California, similar reasoning could lead to the "criminalization" of Tarasoff in other jurisdictions and thereby compel therapists outside California to testify against their patients in criminal proceedings.     

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.     

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.     

Elder abuse policy: considerations in research and legislation

Elder abuse has become the most recently "discovered" form of intrafamilial violence. Most states have enacted elder abuse statutes or have amended their adult protection acts to specify the elderly. A majority of jurisdictions have included mandatory reporting requirements within their statutes. Commentary has been fiercely opposed to mandatory reporting for a variety of reasons. Compelled reporting does not appear to increase the number of reports filed, while enforcement of the schemes depletes much of the funds devoted to elder abuse. Definitions of elder abuse are contradictory and vague. Mandatory reporting requirements suggest that legislators believe elders are unable to determine whether reporting is in their own best interests and thus is an ageist response to the problem of elder abuse. Finally, few services are available to families in which elder abuse has been verified and even fewer program evaluations have been performed to assess these services. Mandatory reporting to identify elder abuse is not appropriate in the absence of programs found to be helpful.     

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.     

Fetal Homicide

Summary

Under common law, a crime resulting in the death of a fetus that was viable but not “born alive” was viewed as a transgression less serious than murder. Accordingly, courts did not allow parents to bring wrongful death suits for the death of a fetus. In the past decade, however, several states have amended their criminal or civil statutes to include the specific crime of “feticide” or “fetal homicide,” and the Federal government is considering similar legislation. This paper examines the history and current status of criminal and civil law regarding the third-party killing of a fetus.     

The application of civil commitment law and practices to a case of delusional disorder: a cross-national comparison of legal approaches in the United States and the United Kingdom

Legal approaches to civil commitment in the United States and the United Kingdom are compared. A concise overview of the historical evolution of civil commitment in both countries precedes a discussion of the present scheme of commitment standards in each system. These current standards in U.S. and U.K. jurisdictions are then applied to a hypothetical case of delusional disorder. A discussion of the constructive use of civil commitment in patients with delusional disorder who may be dangerous focuses on its value as a preventive measure against potential harm to self or others, as well as the pros and cons of coercive assessment and treatment. Despite the many differences in approach to commitment, the authors concur that in both countries the patient with delusional disorder was committable before the commission of a serious criminal offense.     

societal reaction to sex offenders: a review of the origins and results of the myths surrounding their crimes and treatment amenability

Examination of societal reaction to sexual offenders reveals a history of harshness exemplified by the sexual psychopath laws of the 1930s. The latest round of legal attempts to control sex offenders uses Severe sentencing laws, civil commitment procedures and community notification statutes to confine and shame sex offenders. This paper shows these laws to be based on popular beliefs about the predatory nature of these men, the probability of their re-offense and their amenability to treatment rather than the facts about the sex offenses and offenders. The severe reaction to sexual offenders is a vindictive one based on myth and misunderstanding that serves many interests. The paper exposes the contradictory myths and skewed emotions that guide our view of sex crimes and compares these with the facts about re-offense rates and the effects of treatment.     

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.     

How psychiatrists and judges assess the dangerousness of persons with mental illness: an 'expertise bias"

When assessing dangerousness of mentally ill persons with the objective of making a decision on civil commitment, medical and legal experts use information typically belonging to their professional frame of reference. This is investigated in two studies of the commitment decision. It is hypothesized that an 'expertise bias' may explain differences between the medical and the legal expert in defining the dangerousness concept (study 1), and in assessing the seriousness of the danger (study 2). Judges define dangerousness more often as harming others, whereas psychiatrists more often include harm to self in the definition. In assessing the seriousness of the danger, experts tend to be more tolerant with regard to false negatives, as the type of behavior is more familiar to them. The theoretical and practical implications of the results are discussed.     

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.     

Firearm legislation and statewide suicide rates: The moderating role of household firearm ownership levels

Firearm legislation is associated with statewide suicide rates; however, prior research has often relied upon older data and categorical legislative grades while also failing to consider the nuanced role of firearm ownership. Therefore, the robust literature base on legislation and suicide has not directly examined regarding the extent to which the value of legislation hinges upon the rate of firearm ownership in a given state. The current study examined 2015 US statewide firearm legislation strength scores from Giffords Law Center to Prevent Gun Violence and 2016 statewide suicide rates from the Centers for Disease Control and Prevention. Firearm legislation strength was inversely associated with statewide overall and firearm suicide rates, but not with non‐firearm suicide rates. Firearm ownership rates moderated the association between firearm legislation strength and statewide overall suicide rates. Specifically, firearm legislation strength was inversely associated with statewide overall suicide rates at mean and high levels of firearm ownership. Findings support the potential utility of firearm legislation as part of a national effort to decrease US suicide deaths, particularly in areas with higher firearm ownership rates.