Volume 29 Issue 2 Article 2 1983 Involuntary Civil Commitment of the Mentally Ill: A System in Need of Change John E. B. Myers Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Law and Psychology Commons Recommended Citation John E. Myers, Involuntary Civil Commitment of the Mentally Ill: A System in Need of Change, 29 Vill. L. Rev. 367 (1983). Available at: https://digitalcommons.law.villanova.edu/vlr/vol29/iss2/2 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Myers: Involuntary Civil Commitment of the Mentally Ill: A System in Nee 1983-84] INVOLUNTARY CIVIL COMMITMENT OF THE MENTALLY ILL: A SYSTEM IN NEED OF CHANGE JOHN E. B. MYERSt Table of Contents Introduction .................................................. 368 I. THE RISE OF INSTITUTIONS ............................. 368 II. DEVELOPMENT OF INVOLUNTARY COMMITMENT LAW... 375 A. HistoricalDevelopment ..................... .......... 375 B. The Authority of the State to Impose Involuntay Commit- ment-The Parens Patriae Power ..................... 380 III. THE DEINSTITUTIONALIZATION MOVEMENT ............. 388 A. HistoricalDevelopment ................................ 388 B. The Contribution of the Courts to Deinstitutionah'zation.... 394 C. Treatment in the Least Restrictive Environment ........... 400 IV. FAILINGS OF THE DEINSTITUTIONALIZATION MOVEMENT ......................................................... 40 3 A. The "Community's" Failure to Provide Adequate Commu- nity-Based Treatment Resources ......................... 403 B. The Shortcomings of Denstitutionah'zationare Exacerbated by Restrictive Commitment Laws ........................ 409 V. ALTERNATIVES FOR CHANGE IN THE SYSTEM OF INVOL- UNTARY TREATMENT OF THE MENTALLY ILL ........... 412 A. Abolition of Involuntary Treatment ...................... 413 B. Fine Tuning the Present System ......................... 414 C. Guardianship Law .................................... 414 D. Adult Protective Services Statutes ....................... 416 E. A Proposalfor Alteration of the System of Involuntay Civil Commitment .......................................... 418 1. Overview of the Proposal ........................... 418 2. OperationalAspects of the ProposedSystem of Involun- tagi Treatment .................................... 425 a. Procedural safeguards ........................ 425 b. Judicial supervision of the system ............ 426 t Assistant Professor of Law, McGeorge School of Law. The author wishes to express appreciation to Ms. Joanne Slotnick, Esq. for her assistance in the prepara- tion of this article. (367) Published by Villanova University Charles Widger School of Law Digital Repository, 1984 1 Villanova Law Review, Vol. 29, Iss. 2 [1984], Art. 2 VILLANOVA LAW REVIEW [Vol. 29: p. 367 c. Intervention is permitted only after efforts to secure voluntary participation fail ............ 426 d. Involuntary treatment may be ordered only when an individual is likely to cause harm to him or herself, or suffer substantial mental or physical deterioration ........................ 427 e. Lack of rational decisionmaking capacity .... 428 (i) The danger of benevolent paternalism... 429 (ii) Adjudication of capacity for rational decisionmaking ......................... 431 f. Police power commitment will continue to be available ..................................... 432 g. The problem of enforcement ................. 432 V I. CONCLUSION ............................................ 433 INTRODUCTION T HIS article is written to propose a change in the law of involun- tary civil commitment of the mentally ill. The impetus for such a change is found in the present commitment system, which is outmo- ded and unresponsive to the needs of the mentally ill in contemporary society. To set the stage for the proposed change, an examination of the development of institutions for the mentally ill and the concomi- tant development of involuntary civil commitment is necessary. Fur- thermore, the development and effects of the deinstitutionalization movement must be scrutinized. I. THE RISE OF INSTITUTIONS In 1842 Charles Dickens traveled through much of America.1 During his travels, he visited several types of institutions, including hospitals for the mentally ill. In Boston, he described in glowing terms a "State Hospital for the insane, admirably conducted on... enlightened principles of conciliation and kindness."' 2 Dickens' description of the physical plant could easily be applied to many state operated facilities in existence today: Each ward in this institution is shaped like a long gal- lery or hall, with the dormatories of the patients opening from it on either hand. Here they work, read, play at skit- 1. See 1 E. JOHNSON, CHARLES DICKENS: His TRAGEDY AND TRIUMPH 357- 446 (1952). 2. C. DICKENS, AMERICAN NOTES AND PICTURES FROM ITALY 45 (London 1970) (first published in London, 1842) [hereinafter cited as AMERICAN NOTES]. https://digitalcommons.law.villanova.edu/vlr/vol29/iss2/2 2 Myers: Involuntary Civil Commitment of the Mentally Ill: A System in Nee 1983-841 INVOLUNTARY CIVIL COMMITMENT ties, and other games; and when the weather does not admit 3 of their taking exercise out of doors, pass the day together. On a later visit to another "Lunatic Asylum," Dickens offered a much less optimistic assessment: I cannot say that I derived much comfort from the in- spection of this charity. The different wards might have been cleaner and better ordered; I saw nothing of that salu- tary system which had impressed me so favorably elsewhere; and everything had a lounging, listless, madhouse air, which was very painful. The moping idiot, cowering down with long dishevelled hair; the gibbering maniac, with his hide- ous laugh and pointed finger; the vacant eye, the fierce wild face, the gloomy picking of the hands and lips, and munch- ing of the nails: there they were all without disguise, in na- ked ugliness and horror. In the dining-room, a bare, dull, dreary place, with nothing for the eye to rest on but the empty walls, a woman was locked up alone. She was bent, they told me, on committing suicide. If anything could have strengthened her in her resolution, it would certainly have been the insupportable monotony of such an 4 existence. These few lines from Dickens' pen indicate that the use of large institutions for the confinement of the mentally ill was commonplace by the middle of the nineteenth century. Already present were many of the institutional abuses challenged in the courts more than a cen- tury later.5 Prior to American independence, the mentally ill did not fare well.6 The dangerous or violent were frequently incarcerated with criminals, 7 while the non-dangerous were treated like common pau- 3. Id 4. Id. at 93. 5. For a discussion of these challenges in the courts, see notes 151-205 and ac- companying text infra. 6. See A. DEUTSCH, THE MENTALLY ILL IN AMERICA 39-54 (1949); COMPRE- HENSIVE TEXTBOOK OF PSYCHIATRY 1-75 (H. Kaplan, A. Freedman & B. Sadock eds. 3d ed. 1980) [hereinafter cited as TEXTBOOK OF PSYCHIATRY]. See also AMERI- CAN BAR FOUNDATION, THE MENTALLY DISABLED AND THE LAW 1-14 (S. Brakel & R. Rock eds. 1971). This treatise contains a useful description of legal treatment accorded the mentally ill from prehistoric times through the twentieth century. 7. See genera/I; L. BELL, TREATING THE MENTALLY ILL FROM COLONIAL TIMES TO THE PRESENT (1980). Deutsch states that [u]ntil the last quarter-century of the colonial period there were no hospitals in all the land to which the mentally ill might be sent. Generally Published by Villanova University Charles Widger School of Law Digital Repository, 1984 3 Villanova Law Review, Vol. 29, Iss. 2 [1984], Art. 2 VILLANOVA LAW REVIEW [Vol. 29: p. 367 pers.8 Responsibility for poor relief fell to local authorities,9 who fol- lowed the lines set down by the Elizabethan Poor Law of 1601.10 The Act's guiding spirit was repression, rather than relief, of pauperism."I By the second quarter of the eighteenth century, the dependent men- tally ill were often found languishing in workhouses and alms- houses.' 2 These early institutions were anything but therapeutic, and the lot of the mentally ill was certainly not pleasant. 13 Many were left to wander aimlessly about the countryside. In fact, early town records reveal that local authorities not infrequently escorted such in- 4 dividuals to the edge of town and instructed them not to return.' Some officials, who were still more resourceful, physically removed hapless individuals from one town and, under cover of darkness, they were not considered as a special class, but were disposed of as criminals or as paupers, as the case might be. They were ordinarily confined in jails, workhouses, poorhouses, or in private pens, cages and strongrooms. The object of public provision was frankly repressive or custodial; no thought was given to therapy. A. DEUTSCH, supra note 6, at 420. 8. The American Bar Foundation has opined that the non-dangerous mentally ill were treated as a monolithic mass; there was no attempt to analyze its compo- nents. A "drifter" was a "drifter" and nothing more. Whether he was men- tally or physically disabled or simply lazy made no difference to the townspeople, who feared they would have to support him. For these rea- sons the mentally