Almost a Revolution: An International Perspective on the Law of

Paul S. Appelbaum, MD

To what extent have developments in commitment law around the world paralleled trends in the United States in the last three decades? Although the American emphasis on dangerousness criteria and strigent procedural rights has been echoed in a number of other countries, it has not dominated reform in most nations. The leading alternative has been the 1983 Act in England and Wales, with its focus on the "health and safety" of the patient, as well as protection of other persons, and its avoidance of judicial hearings. How have these reforms fared? Extensive data from the United States, and more limited data from other countries, suggest that reforms in general are resisted when they are seen as shifting the focus away from patients' treatment needs. When law fails to reflect widely held moral sentiments, it is molded in practice to conform more closely to those sentiments. It is helpful to recognize that a variety of approaches to mental health law are consistent with reasonable protection of civil liberties in a democratic society. Greater attention to practices in other countries may help reformers expand the menu of options in policy debates.

To what extent have developments in ern societies? This article explores the mental health law around the world par- answer to these questions as they relate to alleled trends in the United States in the one of the most important and contentious last three decades? Have we been unique areas of mental health law: the law gov- in the orientation that our statutes and erning involuntary commitment of men- jurisprudence have taken, or have we tally ill persons. moved in directions common to all mod- In undertaking this task, I begin with a brief overview of the recent evolution of Dr. Appelbaum is A. F. Zeleznik Distinguished Profes- sor and Chair, Department of Psychiatry, and Director, civil commitment law in the United Law and Psychiatry Program, University of Massachu- States. before moving on to consider de- setts Medical Center, Worcester, MA. This article is a revised version of the Manfred Guttmacher Award Lec- velopments in other parts of the world. ture presented at the Annual Meeting of the American The portion of this article that portrays Psychiatric Association and the Semi-Annual Meeting of the American Academy of Psychiatry and the Law, the situation in the United States draws New York City, May 1996. It was completed while the heavily from the description and analysis author was the Fritz Redlich Fellow at the Center for Advanced Study in the Behavioral Sciences, Stanford, in my book, Almost a Revolution: Mental CA. Address correspondence to: Paul S. Appelbaum, Law MD, Department of Psychiatry, University of Massachu- Health and the Limits of change.' setts Medical Center, Worcester, MA 01655. The remainder of the article considers the

J Am Acad Psychiatry Law, Vol. 25, No. 2, 1997 135 Appelbaum extent to which the findings in that work seemed dubious. Exposes revealed abys- are helpful in understanding changes in mal conditions in many state hospitals, mental health law in other parts of the where the majority of chronically ill pa- globe. tients were h~s~italized.~,~Sociologists and some psychiatrists suggested that Reform of Civil Commitment Law long-term hospitalization per se might be in the United States the cause of many of the symptoms asso- From the formulation of the first stat- ciated with chronic mental illness. repre- utes governing civil commitment to the senting a syndrome they called "institu- new asylums in the early 19th century to tionali~m."~, Community-oriented roughly the mid-1960s, the focus of civil psychiatrists simultaneously argued that commitment law was unchanged and un- patients could be better taken care of in challenged: persons who were mentally their own communities, as outpatients ill and in need of treatment could be com- when possible and as voluntary inpatients mitted for that care. Moreover, although when not.'' the degree of judicial oversight waxed Third, the civil rights revolution of the and waned over time, the procedures by 1950s and 1960s reinvigorated theories of which commitment could be effected law that emphasized the rights of disen- were often entrusted to medical hands. franchised groups against the power of Whatever the legal procedures required, it the government: first blacks, then prison- was rare for them even to approximate the ers, students, women, and persons with protections against incarceration associ- mental illness. The prevalent dissatisfac- ated with the criminal model.2 tion with involuntary hospitalization of By the mid-1960s, however, the con- mentally ill persons was thereby chan- fluence of a number of trends brought the neled in a direction likely to result in appropriateness of this approach into change: into the courts." question. First. skeptics asked-in popu- Finally, with budgets of departments of lar and scholarly literature alike- mental health accounting for the largest whether mental illness really existed, was share of expenditures in many states- a "myth," or simply represented a higher comparable to the position held by Med- state of consciousness.3~4Notions that icaid today-legislatures were eager to was simply a construct embrace any option that, by making hos- that allowed society to exercise social pitalization more difficult to effect, of- control over unpleasant but harmless de- fered the prospect of lower costs of care viant behavior attracted a great deal of for persons with mental disorders.I2 upp port.^ The idea of involuntary hospi- These forces, taken as a whole, culmi- talization for a disorder that might not nated in a radical transformation of the exist was clearly problematic. law of civil commitment that essentially Second, even for those critics who did altered the status quo in every state in the not doubt the existence of mental illness, nation over the course of 15 years (1964 available means of treating such disorders to 1979). Use of involuntary commitment

136 J Am Acad Psychiatry Law, Vol. 25, No. 2, 1997 International Perspective on Involuntary Commitment was limited to persons who were likely to felt impelled to be "modern" or "up-to- be dangerous to themselves or others, the date," which implied following the lead latter category including those so im- of the United States. paired as to be unable to meet their basic Among the countries that emulated the needs. The law allowing hospitalization United States (I rely of necessity on the of persons solely because they were "in English-language literature here, what- need of treatmentm-the historic standard ever its shortcomings), to one degree or of commitment in this country-was another, in adopting dangerousness-based abandoned. In addition, a set of proce- commitment criteria were Austria.14 Bel- dural rights was imported from the crim- gium, ls Germany, '"srael, l6 the Nether- inal law, including rights to a hearing, lands.153l7 Northern Ireland," Russia,ls notice, representation by an attorney. to ~aiwan,'~and closer to home, Ontario. testify on ones' own behalf, to call and ~anada.~'Many more countries altered cross-examine witnesses, and to exclude their commitment procedures to increase evidence that did not meet the ordinary the procedural protections they afforded standards of admissibility. Although patients who were subject to involuntary states varied in the details of their stat- hospitalization. utes. the basic thrust of the reforms was A good example of these American- similar in every state.'" style laws is the 1983 Mental Health Act Before considering the effects of these in New South Wales. Australia, which reforms, however. it may be useful to demonstrates at the same time that other sketch out the parallel processes that were countries felt free to depart somewhat occurring elsewhere in the world, where from the confines of the American mod- similar pressures were leading other e~.~'The basis for involuntary hospital- countries to rethink their approaches to ization under the New South Wales stat- commitment law. ute is limited to various formulations of danger to self or others, with some unique Reform of Civil Commitment Law provisions. Danger to self. for example, Elsewhere in the World includes the risk of financial harm. but Within a decade of the changes in com- only for persons who are manic. Curious mitment law in the United States, similar about the motivation for including this reforms began to be seen in other coun- provision, I asked an Australian col- tries. They were often driven by related league, who told me that the advocacy concerns about overuse of hospitaliza- group for persons with bipolar disorders tion, its cost, and its inherent limitation of had lobbied for its adoption, seeking to individual rights. Often, reformers prevent families of manic patients from pointed explicitly to the United States' being left destitute by patients' spending experience as a model for their own pro- sprees. Spendthrift schizophrenics, how- posals: sometimes because they believed ever, are not covered by its provisions. that the United States was moving in the Danger to others in the New South right direction; sometimes because they Wales statute includes not only the risk of

J Am Acad Psychiatry Law, Vol. 25, No. 2, 1997 137 Appelbaum physical harm, but also harassment "so The 1983 Mental Health Act in En- far beyond the limits of normal social gland and Wales is perhaps the leading behavior that a reasonable person would example of an alternative approach.23In- consider it intolerable." This willingness terestingly, the momentum for reform in to use involuntary hospitalization to pro- the United Kingdom came from a cam- tect the social milieu is decidedly not a paign led by a transplanted American provision of American statutes: witness civil liberties lawyer who pushed for the celebrated case of Larry Hogue, the adoption of an American-style model. homeless crack addict, subject to repeated Nonetheless, the criteria for commitment psychotic episodes, who so terrorized the in the English statute require that patients people living on and near West 96th be suffering from a mental disorder "of a Street in an hat tan.^^ Nor is New South nature or degree which makes it appro- Wales the only jurisdiction to take this priate for [them] to receive medical treat- approach. The new Israeli statute of 1991, ment in a hospital," and that admission is for example, also allows commitment of necessary for the health and safety of the mentally ill people with considerable im- patient or the protection of other persons. pairment of reality testing or judgment, The term "health and safety" is inter- who cause severe mental suffering to oth- preted to include mental health, thus al- ers.I6 lowing hospitalization when that is con- Procedures in the New South Wales sidered necessary for the treatment of law draw heavily on formal legal due patients' psychiatric disorders. process. Although commitment can be ef- Procedurally, there is no immediate fected by one physician if confirmed by a mandatory review of physicians' commit- second. patients have the right to rapid ment decisions. Patients have the option review of their commitment by a magis- to request postcommitment review. but trate at a full hearing, with mandatory legal assistance for the patient, and peri- studies suggest that only about 25 percent odic review occurring before a Mental do so.24 Review occurs automatically af- Health Review Tribunal after three ter six months of commitment and then months of hospitalization, and then every every three years. The reviewing body, six months thereafter. however, is a mental health tribunal (typ- It would be a mistake, however, to as- ically composed of a lawyer, a doctor, sume that the American model, or even and a lay member) and not a court. What- close variations of it, has become the ever we may think about the degree of dominant approach around the world. Al- protection afforded by the British statute though many countries have moved in the (and I find troubling the absence of man- direction of better-defined commitment datory review soon after admission), criteria and additional procedural protec- there is no question that this statutory tions, most have not turned to strict dan- reform-motivated by the same kinds of gerousness-based statutes and criminal- considerations that drove the changes in style procedures to achieve those ends. the United States-follows a path very

138 J Am Acad Psychiatry Law, Vol. 25, No. 2, 1997 International Perspective on Involuntary Commitment different from the American or New deterioration (as well as danger to self or South Wales models. others).30 Italy, which undertook Eu- Even a cursory review of recently en- rope's most radical reform of a mental acted statutes in other jurisdictions, how- health system in 1978, permits confine- ever, suggests that the British approach is ment when urgent intervention is re- more typical of international trends than quired. treatment is being refused, and is the more rigorous American model. For there is no less restrictive alternati~e.~' example, beginning our overview in Interestingly, dangerousness is explicitly Scandinavia, the Danish MH Act of 1989 rejected as a basis for commitment be- allows commitment for dangerousness or cause of its stigmatizing effect on persons to avoid deterioration of the prospect for with mental illness. Ireland's government recovery or impr~vement.~'A guardian, is now proposing a new commitment stat- who meets regularly with the patient, is ute that would permit commitment for appointed immediately, but judicial re- impaired judgment leading to serious de- view occurs only on the patients' request. terioration or a failure to receive appro- Norway's law is similar. 15. 26 Sweden's priate treatment, as well as for dangerous- 1992 statute permits hospitalization when ne~s.~~,33 a serious mental disturbance results in an Trends are similar outside of Europe, "absolute need for full-time psychiatric although considerable variation can be Care.'-15,27 Court review occurs after four seen from country to country. Japan's weeks. Finland's 1990 law requires find- 1988 Mental Health Act requires danger- ing that, for a patient to be committed, the ousness as a basis for commitment if hos- patient's condition will deteriorate if left pitalization is initiated by the authorities, untreated, or the patient's own health or but if a responsible family member con- the safety of others will be seriously en- sents to admission, all that is required is dangered.28 Hospitalization is permitted that the patient be mentally disordered for three months before court review. and in need of h~s~italization.~~One Elsewhere in Europe, the 1990 statute glimpses in this distinction Japan's tradi- enacted in France allows hospitalization tional reliance on the family as the pri- on the physician's discretion for persons mary locus of decision making for its in need of treatment and relegates deci- members. In India, involuntary hospital- sions about commitment for dangerous- ization can be accomplished on the appli- ness to the prefect of police (with physi- cation of a relative or friend of the pa- cian review).'' Switzerland allows tient, if two doctors concur that it is "detention in the interest of the patient's necessary for the interests of the mentally welfare," when "the necessary personal ill person, whose condition must be ame- care is otherwise not guaranteed."29 nable to tre~itrnent.~' Greece's 1992 law has the criterion of Australasia, apart from New South incapacity to judge one's own health in- Wales, has tended to favor English-model terests and requires that a failure to com- approaches. New Zealand permits com- mit would lead to an inability to treat or to mitment for a serious danger to the health

J Am Acad Psychiatry Law, Vol. 25, No. 2, 1997 139 Appelbaum or safety of the patient or others, or seri- many, but by no means all, psychiatrists, ously diminished capacity to care for agreed that this was likely to occur, dif- self.36 In Australia, the Northern Terri- fering only on the desirability of the tory. South Australia, Queensland, and changes. The "battle cry" of the skeptics Victoria employ criteria focused primar- was coined by Wisconsin psychiatrist ily on the patient's need for treatment; in Darryl Treffert, who maintained that pa- contrast, the Capital Territory utilizes tients who could no longer be committed dangerousness-based criteria.37 were "dying with their rights on" because To summarize, the 1980s and 1990s of the new laws3* Commenting on the have witnessed an unprecedented wave of best known of the court decisions striking reform in commitment laws around the down the older generation of statutes, in world, partially in response to the same the federal district court opinion in Les- forces that resulted in reforms in the surd v. Schmidt, Alan Stone maintained United States a decade or more earlier, that "if followed exactly, [it would] put a partially driven by the American actions virtual end to involuntary confine- themselves. Although most changes were ment."39 aimed at more clearly defining the popu- How well were these expectations re- lations eligible for commitment and pro- flected in reality? We can sum up the viding some oversight of physicians' de- considerable data on the effects of the cisions, most countries have not gone as new civil commitment statutes by saying far with either of these initiatives as have that it has been much more difficult than almost all jurisdictions in the United anyone anticipated to demonstrate signif- States. icant and persistent changes in commit- ment practices as a result of the new laws. The Consequences of Reform Three bodies of data are relevant here. What happened as a result of the re- First, more than two dozen studies have forms in the United States and other been performed of changes in commit- countries? Characterizing legal reforms is ment rates before and after reform.' A relatively straightforward. Identifying few studies showed marked drops in the their actual impact is somewhat more rate of commitment when new statutes complex. There is no question as to the replaced need for treatment with danger- expectations of most persons in the ousness criteria and implemented new, United States, at least when the reforms stricter procedures. This is what both pro- of late 1960s and 1970s were enacted. ponents and critics of the reforms ex- The reformers themselves sought a drop pected. An even larger number of studies, in the number of persons susceptible to however, demonstrated no change in civil commitment and a shift in their char- commitment rates as a result of the re- acteristics to a more impaired group of forms (although in many states rates of patients, who placed themselves and oth- commitment had been declining for some ers at clear risk of harm. years and continued to do so). Opponents of the reforms, including How could these two sets of data be

140 J Am Acad Psychiatry Law, Vol. 25, No. 2, 1997 International Perspective on Involuntary Commitment reconciled? Two Canadian psychologists, identify those patients who are in need of Bagby and ~tkinson,~'offered a way out treatment (and therefore eligible for com- of the dilemma. They noted that when mitment under the old criteria), but not follow-up periods were limited to the im- dangerous, and thus now must be turned mediate postreform era, often one year, away from care. These are the patients sharp drops in commitment rates were whom Treffert feared were "dying with found. But researchers who extended their rights on." One group of researchers their data collection beyond the first year led by Mulvey and Lidz in ~ittsburgh,~' almost invariably found a rise in commit- reviewed 390 psychiatric emergency ment rates, in some cases a return to or room patients and found only one person increase above pre-reform levels. Thus, who was rated as being in need of imme- although the Bagby and Atkinson analy- diate treatment, resisting that treatment, sis does not imply that commitment law and not eligible for commitment under reforms had no impact-indeed it sug- the Pennsylvania statute. In the end. she gests the opposite-it does indicate that was committed anyway. A second study, the impact was much less than expected by Segal and colleagues in Calif~rnia,~~ and in most cases faded over time. I will found a strong correlation in their 251 return later to what might have accounted cases between severity of symptoms and for this phenomenon. indicators of dangerousness. They argued A second way of assessing the effect of that the group about which many critics changes in commitment law is to see of the new laws were worried, very ill, whether the nature of committed popula- but nondangerous patients. did not appear tions was altered in the expected direc- to exist in any substantial numbers. tions: did they become sicker and more Thus, the changes expected as a result dangerous to self and others after the re- of the new laws have been exceedingly forms? Of the many studies of this type, I difficult to document. Although rates of have not been able to find one that dem- commitment fell in many states, they re- onstrates significant changes in the char- flected a preexisting pattern related to the acteristics of committed populations.' shutdown of state facilities and a shift to Demographically and diagnostically, the community care. When new commitment groups look the same before and after statutes accelerated this process. the reform. Of even greater interest, the post- greater part of the effect was temporary. reform groups appear to be no more likely Further, although a review of the relevant to meet the new commitment criteria than data would go beyond the scope of this the groups committed prior to the changes article, it appears that the decrease in pub- in the law. These findings add to the lic sector psychiatric beds, rather than evidence suggesting that there might be changes in the law, accounts for the lim- less going on with commitment reform itations most often faced by mental health than first meets the eye. professionals in attempting to hospitalize The final way to assess the impact of patients in need of care. Clearly, some- new commitment laws is to attempt to thing is happening in the United States to

J Am Acad Psychiatry Law, Vol. 25, No. 2, 1997 141 Appelbaum modify the expected impact of commit- as well? The key to understanding the ment law reform. difference between commitment law on Before considering what processes the books and commitment law in prac- might account for these unanticipated tice is to recognize that laws are not self- findings, we need to note the difficulty in enforcing. Indeed, implementation of in- drawing conclusions about the effect of voluntary hospitalization is delegated to a commitment law changes in other coun- variety of participants in the commitment tries. Several factors are relevant here. process, all of whom have the potential to First, the international reforms are much affect how the law is applied. When the more recent than those in the United results of a law narrowly applied will be States. Sufficient time may not have contrary to the moral intuitions of these passed in many countries for studies like parties, they will act at the margins to the American ones to have been per- modify the law in practice to achieve formed. Second, it seems clear that the what seem to them to be more reasonable cottage industry of empirical studies of outcomes. commitment that was spawned in the This process is easiest to see in the United States in the 1970s and 1980s has behavior of judges and other nonclinical not developed in most other countries, decision makers involved in the commit- probably because resources for these pol- ment process. In an observational study icy-oriented investigations are much of a California commitment court, soci- more limited. (Of course, some studies ologist Carol Warren found that the judge may exist in foreign language journals applied "commonsense" notions to his and thus be inaccessible to this review.) decisions.43 That is, he believed that Thus, with only a few exceptions (e.g., crazy people who were likely to be helped there are data suggesting no consistent by treatment should be in the hospital. change in rates of commitment after even if the narrow terms of California's changes in the law in ~ustria),'~we lack commitment statute were not met. Simi- data on the impact of the laws on the rates larly, in North Carolina, Hiday and of commitment and the nature of commit- Smith44 found that in 47.5 percent of ted populations. As we shall see, how- commitment cases in which the petition ever, there are reasons to suspect that lacked any information concerning the limitations similar to those in the United statutory dangerousness criteria. respon- States on the extent of changes induced dents were committed anyway. by the new laws may obtain in other Clearly, this tendency is not limited to countries as well. the United States. Several observers in ~ngland~~-~~have noted that mental Civil Commitment in Practice health review tribunals often behave pa- How can we explain the relative lack of ternalistically, with decisions frequently impact of commitment law changes in the turning not on whether patients meet United States. and do the explanatory commitment criteria, but on whether, if processes seem to occur in other countries released, they will cooperate with treat-

142 J Am Acad Psychiatry Law, Vol. 25, No. 2, 1997 International Perspective on Involuntary Commitment ment in the community. (Although a sub- genuinely ill.49 Warren's observational stantial percentage of appeals-up to study in the California courts resulted in 20% in three series cited by wood4'- similar findings: attorneys were often not result in release, these are not reviews of playing the adversarial role anticipated by acute hospitalizations, but decisions con- the law.43 Again, the phenomenon is not cerning whether to continue to hold pa- limited to the United States. ~ottomle~'~ tients after several months of hospitaliza- in Australia noted that many lawyers tion. The same is true of a similar study of there elect to argue for their version of release decisions in New ~ealand.~~Re- patients' needs rather than for patients' lease decisions, therefore, may reflect pa- expressed wishes to be released. Law- tients' readiness for discharge rather than yers' presence, he concluded, does not their failure to meet commitment crite- guarantee an adversarial proceeding. ria.) Likewise, in Norway, an indepen- With judges and lawyers. who are dent review of 212 patients whose com- trained to be respectful of individual mitments were upheld by a review board rights, bending the law when that seems found that about 15 percent of these de- to be necessary for patients to receive cisions seemed not to meet even that treatment, it is no surprise that psychia- country's broad commitment criteria trists, whose primary interest is in provid- ("necessary to ensure recovery or im- ing treatment, do the same. Reviews of pro~ement").~~ commitment petitions completed by psy- We can understand these results as in- chiatrists and other mental health profes- dicating that decision makers, including sionals routinely reveal a failure to spec- judges, have intuitive criteria for involun- ify legally required criteria in a large tary commitment that they apply even percentage of cases: 16.1 percent in a when a narrow reading of the law might North Carolina study of cases that led to lead them elsewhere. Note that this does judicial ~ommitrnent~~;even higher num- not mean that all respondents get commit- bers in a set of Canadian studies.'" 52 ted-they do not-or that the law gets One might wonder whether these find- ignored-it does not. But at the margins. ings merely reflect sloppy completion of when the outcome would be troubling, the forms, but chart reviews attempting to the law is bent to accommodate judges' document the presence or absence of moral sense. commitment criteria, regardless of Surprisingly. perhaps, lawyers repre- whether they are recorded on commit- senting patients at commitment hearings ment forms, have found similar results. often seem to behave in a similar fashion. ~oyer~%howedthat Norway's criterion Poythress. who trained attorneys in Texas allowing commitment when necessary to on how to challenge expert testimony at ensure recovery or improvement was fre- commitment hearings. found that none of quently used in cases when deterioration them used the training, because they did (not covered by the statute) was feared. A not see it as their job to achieve the re- Finnish revealed that the mental lease of people whom they viewed as illness criterion, interpreted as requiring

J Am Acad Psychiatry Law, Vol. 25, No. 2, 1997 Appelbaum

that patients be psychotic, was not clearly expected? First, insofar as law fails to met in 20 percent of involuntary admis- reflect widely held moral sentiments, it is sions. These were largely cases in which subject to being molded in practice to patients were suicidal or in which psycho- conform more closely to those senti- sis was suspected but not proven and in ments. This seems to be particularly the which it was believed that treatment case for mental health law; in my book I would be helpful. Similarly, in California suggest that responses to changes in the after the implementation of the Lanter- law regulating the right to refuse treat- man-Petris-Short Act in 1969, a study by ment and the insanity defense can be un- the ENKI research group54 found that be- derstood similarly. ' tween 21 and 53 percent of patients com- When commitment law in the United mitted (depending on jurisdiction within States changed from a need-for-treatment the state) failed to meet commitment cri- orientation to a focus on the prediction teria. and control of dangerous behavior. it How do mental health professionals ac- threatened to violate the commonsense complish these commitments? Many intuitions of the majority of the popula- studies have pointed to the flexibility in- tion that severely mentally ill people who herent in the "grave disability" or "unable could be helped by treatment should re- to care for self' provisions of most com- ceive treatment, even if it must be pro- mitment laws. Researchers in Pitts- vided against their will. In part, this di- burgh4' found that almost all persons who vergence between legal reform and are deemed greatly in need of treatment, generally held moral sentiments repre- but who are not overtly dangerous to sented the capture of the policy-making themselves or others, are committed on apparatus in the courts and legislatures by this basis. Indeed, a Georgia sug- persons whose view of mental health law gested that mental health professionals was dominated by skepticism regarding may help coach patients' family members the reality of mental illness, the pain it on how to describe their behavior, thus produced in patients, the effectiveness of accounting for the changes in these de- treatment, and the degree of trust that scriptions recorded in commitment appli- could be placed in psychiatrists and other cations as commitment law changed. mental health professionals. After an initial period of adaptation. during which the rules were interpreted Lessons from the Revolution narrowly and commitment rates in many That Wasn't jurisdictions declined, all those involved What can we learn from the revolution in the commitment process-judges, law- that wasn't-the sweeping changes in yers, mental health professionals. and commitment laws in this country, and to a family members-found mechanisms to lesser extent around the world, that made make the outcomes of the process more much less of a difference than anyone had nearly identical to their moral intuitions.

144 J Am Acad Psychiatry Law, Vol. 25, No. 2, 1997 International Perspective on Involuntary Commitment

This process is by no means unique to only because failing to do so will defeat mental health law. It can be seen in the purpose of reform, but also for the America's reaction to prohibition as well intrinsic value of achieving a just com- as in our current ambivalence about man- promise. Compromise should be consid- dating the use of seat belts in cars. ered the goal, not the second-best out- Moreover, although the data are come, of policy formulation in mental skimpy at this point, it appears that this health law. reaction is not unique to the United Third, I would like to suggest that there States. When commitment law in Europe, is wisdom in the maxim that "travel Australia, and elsewhere became more broadens one's horizons." As we struggle restrictive than public sentiment could en- to fashion mental health law in the United dorse, similar responses were seen among States, there is a strong tendency for us to all participants in the process. The simi- succumb to the belief that only American larities are particularly striking given the experiences can be relevant; we have differences in "set point" for the statutes; nothing to learn from the rest of the that is, reforms that seem modest by world. The general belief in America's American standards nonetheless evoked absolute uniqueness contributes mightily strong responses from people in countries to our tendencies toward solipsism, often unaccustomed even to that degree of lim- resulting in a much constricted domain of itation on their abilities to confine persons choices from which we make policy. This for treatment. survey of law around the world suggests Second, assuming this analysis is accu- that there are a variety of approaches to rate, it suggests that there are good rea- the substantive and procedural conundra sons to avoid taking extreme positions, of civil commitment that are consistent especially those motivated by ideological with reasonable protection of civil liber- purity, in developing mental health law. ties in a democratic society. Indeed. some Inherently, mental health law involves the of the countries that share most closely in compromise of conflicting interests, of- our legal traditions, including Britain and ten, as noted here, interests in providing other members of the Commonwealth. treatment to those who are suffering have chosen very different approaches to posed against interests in protecting the commitment law. As we think about the liberty of persons to make decisions about future evolution of our own statutory ap- their own care. When a balance is struck proaches, we might keep this expanded that fails to reflect a social consensus, the menu of options in mind. result is what I have described here: law There is, I think, a final word of wis- on the books that bears little resemblance dom here. Not everything that comes ad- to law in practice. It is arrogant to assume vertised as a revolution turns out to be that widely held values do not reflect one. De Toqueville was right; one ought some truth that ought to be taken into not to underestimate the power of the account in the policy-making process, not ancien regime.

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