Civil Commitment — the American Experience

Isr J Psychiatry Relat Sci Vol 43 No. 3 (2006) 209–218

Civil Commitment — The American Experience

Stuart A. Anfang, MD,1 and Paul S. Appelbaum, MD2

1 Western Massachusetts DMH Area Medical Director, Assistant Professor of Psychiatry, University of Massachusetts Medical School, Worcester, Mass., U.S.A. 2 Professor of Psychiatry, Director, Division of Psychiatry, Law and Ethics, Department of Psychiatry, Columbia

University College of Physicians and Surgeons, New York, New York, U.S.A..

Abstract: TheevolutionofU.S.civilcommitmentlawneedstobeunderstoodwithinthecontextofchangesinpsychia- try and medicine, as well as larger social policy and economic changes. American civil commitment law has reflected the swinging pendulum of social attitudes towards civil commitment, oscillating between more and less restriction for both procedural and substantive standards. These standards have evolved from a “need for treatment” approach to a “dangerousness” rationale, and now may be moving to a position in which these justifications are combined, particularly in the context of involuntary outpatient commitment. Civil commitment in the United States has been shaped by multiple factors, including sensitivity to civil rights, public perception of psychiatry, availability of resources, and larger economic pressures. We suggest that current American commitment practice is influenced more by economic factors and social perceptions of mental illness than by changing legal standards.

Introduction cesses, and offer analysis and perspective that may inform other nations working to improve their own Involuntary civil commitment is often considered civil commitment laws (4). the primary intersection of psychiatry and law, and is typically one of the most publicly visible and conten- tious roles of psychiatrists within the larger society. History In the United States, the legal struggles and changes in the process of civil commitment over the past 200 In Colonial times (i.e., pre-1776) and the early years years reflect social ambivalence about the extent to of the United States, there was little formal legal reg- whichanindividual’srighttolibertycanbere- ulation of the care of the mentally ill — likely due in stricted for the ostensible sake of protecting his in- part to the few options for treatment or institutional terests or the interests of others (1). The evolution of care (5). Mentally ill persons who could not care for U.S. civil commitment law needs to be understood themselves and lacked family care and support were within the context of changes in psychiatry and med- typically ignored or managed in jails or almshouses icine, as well as larger social policy and economic for the poor. This approach had no real therapeutic changes. American civil commitment law has re- aspects, but served purely as containment or punish- flected the swinging pendulum of social attitudes to- ment. From a social perspective, the practices were wards civil commitment, oscillating between more driven largely by the interests of public safety (the and less restriction for both procedural and substan- “police power” of the state), with little consideration tive standards. As Israeli psychiatrists, jurists and of treatment or the rights and needs of mentally ill policy makers consider their own civil commitment persons. Conditions in jails and almshouses were laws, it may be helpful to consider the American ex- universally poor, with only basic sustenance in typi- perience (2, 3). cally filthy settings, invariably mixing the mentally ill In this article, we briefly trace the historical evo- with criminals, vagrants, the retarded, the senile, and lution of civil commitment in the United States, de- other social outcasts. scribe some of the past and current controversies, As jails and almshouses became crowded with reflect on the empirical data relevant to these pro- mentally ill persons, there were some early efforts to

Address for Correspondence: Dr. Stuart Anfang, One Prince Street, Northampton, MA 01061, U.S.A. E-mail: [email protected] 210 CIVIL COMMITMENT — THE AMERICAN EXPERIENCE develop private psychiatric units and hospitals, cal opinions of need for treatment, and may have sometimes with public funds, albeit with little legal also served cost control and resource allocation (8). regulation. The first psychiatric admission in the By the start of the U.S. Civil War in 1860, commit- colonies occurred in Philadelphia in 1752; by the ment was predicated only on a mentally ill person re- early decades of the 19th century, a few small private quiring care, and state-run asylums were assumed to and public facilities had developed across the states. be the best places to care for such people. Admission Admissions were involuntary (“insane” persons were was made simple, essentially left in the hands of fam- considered by definition to be unable to recognize ily members and physicians whenever possible. Hos- their own interests and make decisions about hospi- pitalizations were involuntary and treatment was talization), typically initiated by family or friends, coerced, since it was presumed that all mentally ill andthelengthofstaywaslinkedtoongoingprivate patients had compromised reason to the extent that financial support. It is important to point out here, they were unable to request (or refuse) care on their especially for the sake of comparison to Israel or own behalf. other national systems, that institutional care of the Over the next 100 years, changes to commitment mentally ill — and the regulations guiding that pro- laws focused almost entirely on procedures. After cess — is largely a state-specific issue in America (6). the Civil War, allegations were made of sane persons Although federal court decisions and national health being forced into mental institutions by greedy rela- and welfare programs have had some impact on tives and unscrupulous physicians. Reformers advo- commitment practices, civil commitment laws and cated for jury trials or formal judicial hearings for regulations are devised by each state — there are persons faced with involuntary hospitalization, and over 50 jurisdictions (including the District of Co- other procedural safeguards borrowed from the lumbia and Puerto Rico), each with their own spe- criminal justice system. Physicians were required to cific system and regulations. As we describe below, examine patients before testifying to the need for there are considerable similarities between the dif- commitment, and confirm they were not related to ferent jurisdictions, and evolutionary changes or ex- the patient nor had a financial interest in the hospi- periments in a few states have often quickly spread to talization. States broadened the scope of regulations other jurisdictions. to apply to non-public facilities. Further procedural As America moved into the middle decades of adjustments cycled along with public sentiment to- the 19th century, reformers fought for a more hu- wards psychiatry and concern for civil liberties. In mane alternative to jails and almshouses, inspired by the Progressive Era prior to World War I, “psycho- English models for “moral treatment” of the men- pathic hospitals” were developed in major cities, tally ill (7). For the first time, therapeutic optimism dedicated to caring for acute cases, in the hope that and concern for the care of the individual began to early intervention and treatment would have greater guide state policy. This led to the broad development therapeutic impact. States developed special emer- of state-supported asylums, beginning in 1833 with gency commitment procedures that would bypass Worcester (Massachusetts) State Hospital. The time-consuming judicial hearings, allowing physi- movement was spurred across the country by the cians (and sometimes police) to hospitalize patients work of reformers such as Dorothea Dix, who trav- emergently for brief periods of time without court eled the nation in the 1840s and 1850s documenting review. Later concern about potential adverse conse- the poor conditions of almshouses and arguing for quence of rigorous, criminal style procedures (in- the construction of hospitals to treat the insane. As cluding mentally ill persons being detained in jail or state-run hospitals proliferated, there was now a by law enforcement personnel as part of the process) need for enabling legislation and some degree of reg- led to proposals to abolish mandatory judicial hear- ulation. These early commitment laws focused more ings, with the power to commit given to one or two on need for treatment — the state acting in its parens physicians and patients having the right to request a patriae function, the traditional power to care for hearing after the fact if they desired. In 1948, the those incapable of caring for themselves. Judicial in- prestigious Group for the Advancement of Psychia- volvement was typically limited to endorsing medi- try released a report complaining about excessive STUART A. ANFANG AND PAUL S. APPELBAUM 211 criminal-like regulations and procedures (9). In basis for commitment was justified by an appeal to 1951, the newly established National Institute of parens patriae principles, it was limited to more ur- Mental Health (NIMH) issued the landmark “Draft gent, life-threatening situations. Commitment of Act Governing Hospitalization of the Mentally Ill” those dangerous to others was seen as a pure exercise which proposed streamlining commitment proce- of the state’s police powers. Dangerousness as the dures, including a certification process that was en- sole ground for civil commitment was first adopted tirely in medical hands (10). The substantive by the District of Columbia in 1964 and then by Cali- standard for commitment remained largely linked to fornia, the most populous state and frequently a the state’s parens patriae powers, although by the trend-setter for the rest of the nation. California’s mid-20th century critics began to question the state’s 1969 Lanterman-Petris-Short Act — permitting civil role in forcing those able to make decisions to un- commitment only for those who were imminently dergo unwanted treatment. The NIMH Draft Act dangerous to themselves or to others, or who were so proposed a modified version of the traditional “need “gravely disabled” as to be unable to meet their mini- for treatment” formula — to be committable a pa- mal needs for survival (a variant on danger to self) — tient must be “in need of care or treatment in a men- became a model quickly adopted by many other tal hospital, and because of his illness, lacks states. Need for treatment was no longer a substan- sufficient insight or capacity to make responsible ap- tive factor for civil commitment. Court decisions plication therefore,” limiting parens patriae to those embraced the dangerousness model and need for genuinely unable to make decisions for themselves. tighter procedural standards, led by the Wisconsin By the late 1960s, civil commitment became federal district court decision in Lessard v. Schmidt caught up in wider changes within psychiatry and (1971, p. 13). That court criticized earlier vague larger society. The legitimacy of psychiatric diagno- “need for treatment” statutes, and subsequent deci- sis and the concept of mental illness were being chal- sions in other states endorsed a constitutional ratio- lenged from many quarters (11); there was increased nale for the belief that the state can intervene only recognition that little effective treatment was being whenthelivesofthepatientorothersareindanger. provided in many state hospitals, which seemed to By the end of the 1970s, nearly every state had re- offer primarily containment in increasingly run- vised its commitment statutes to conform to the dan- down facilities (12); and American psychiatry itself gerousness criteria (14). began to embrace an ideology of “community psy- As noted above, American civil commitment chiatry” that questioned the benefit of long-term laws, and the responsibility of care for the mentally hospitalization. With the advent of antipsychotic ill, are responsibilities of the individual states. In fact, medications in the mid-1950s and federal support the U.S. Supreme Court has never clearly spoken on for community-based mental health services, states the question of whether dangerousness criteria must began the “deinstitutionalization” process of closing be preferred over need for treatment in civil commit- large state hospitals due to questionable efficacy and ment. In its only case directly addressing civil com- increasing cost. With fewer hospital beds available, mitment criteria, O’Connor v. Donaldson (1977), the the practical availability of civil commitment began Court’s comments (particularly the words “without to be a factor. While these changes were stirring more”) were so ambiguous that they could be inter- within psychiatry, wider social policy evolved, in- preted to support either position (15). Declaring that cluding several decisions from the U.S. Supreme a state cannot constitutionally confine “without Court that emphasized the rights of the individual more” a non-dangerous individual who could safely against the state, restricting practices that infringed survive in freedom, the Court appeared to say that on individual liberty or violated constitutional rights commitment was unconstitutional if a non-danger- to equal protection and due process. ous patient was confined without something “more” In this context, states began to shift away from the being provided to improve his condition (i.e., with- traditional “need for treatment” standard to a nar- out treatment). Thus, if treatment is provided or if rower set of circumstances defined by “dangerous- the patient is dangerous, commitment can continue. ness”toselforothers.Althoughself-dangerasa Others, including the Court itself in later cases, read 212 CIVIL COMMITMENT — THE AMERICAN EXPERIENCE the decision as more clearly endorsing the danger- 1980s (19). The next 20 years have seen increasing ousness model. attentiontotheuseofIOCasa“lessrestrictivealter- A later Supreme Court case, Zinermon v. Burch native” to involuntary hospitalization, with treat- (1990), requiring patients to be competent to give in- ment mandated for individuals with impaired formed consent for voluntary psychiatric hospital- capacity and the potential to deteriorate into danger- ization, also seemed to side with the dangerousness ousness. This trend has been fueled by several fac- standard for involuntary civil commitment (16). De- tors, including limited inpatient resources and brief spite the lack of clarity from the U.S. Supreme Court, hospital stays, insufficient community-based re- most states and lower federal courts moved aggres- sources, a growing homeless mentally ill population, sively towards the dangerousness model and more and highly publicized cases of untreated mentally ill rigorous procedural protections. On procedural is- persons and substance abusers causing havoc or sues, the U.S. Supreme Court again has been more harm (20). Pilot programs, first started in states such cautious than lower courts. In Addington v. Texas as North Carolina, Georgia and Hawaii, have be- (1979), the Court did not equate civil commitment come a growing movement now, with the majority of to a criminal prosecution (which requires the strict- states having IOC statutes (at least 38 as of 2002) est standard of evidence, “beyond a reasonable (21). However, these programs are often limited in doubt”), accepting the more moderate “clear and impact depending on available community resources convincing” evidence standard for the state to prove and enforcement mechanisms. need for civil commitment (17). In Parham v. JR In 1987, the American Psychiatric Association (1979), the Court allowed parents to authorize a (APA) issued model guidelines for IOC, revised in non-consenting minor’s psychiatric admission with- 2000 (22). These updated guidelines propose a re- out the full due process protections that adults would newable commitment after a court finds by clear and receive (18). Although the Supreme Court has been convincing evidence that the person suffers from a more flexible about commitment procedures, most severe mental disorder, needs treatment to prevent a states as a matter of state law have adopted models relapse or severe deterioration that would predict- grossly analogous to the criminal system, including ably result in danger to self or others or inability to several states opting for proof “beyond a reasonable care for himself [“grave disability”], due to the men- doubt.” tal disorder is unlikely to seek or comply with needed treatment without the court order, and has been hospitalized for treatment within the last two years and Recent Evolution fails to comply with prescribed outpatient treatment. Over the past 20 years, the pendulum has begun to The guidelines require a detailed treatment plan, change directions, as policymakers have recognized close monitoring of compliance, and engagement the value of commitment for persons who are chron- with the local responsible treatment team and physi- ically at risk, but perhaps not imminently dangerous. cian. The patient under IOC may not be forced to Several states have broadened the definition of take medications without an additional legal process “grave disability” for inpatient commitment to in- to determine incapacity. Many state legislatures have clude the prospect of severe deterioration, disabling included some aspects of the APA guidelines when illness,orgeneralinabilitytocareforself.Thismay writing their statutes, which generally fall into three reflect the perception (further discussed below) that basic patterns: conditional release for involuntarily civil commitment was too difficult to achieve with hospitalized patients; “less restrictive alternative” to the strict dangerousness model, or that too many pa- hospitalization for those patients who meet inpatient tients needing treatment were being excluded. commitment criteria; and as an alternative for pa- Themajorfocusofevolutionoverthelasttwode- tients who do not meet inpatient commitment crite- cades has been a growing trend towards involuntary ria, but are at risk for severe decompensation. This outpatient commitment (IOC). Although many latter “preventive commitment” or “predicted deteri- states had some legislative provisions for IOC, they oration”modelhasbeenseenbysomeasamove were confusing and infrequently used until the mid- away from imminent “dangerousness” back towards STUART A. ANFANG AND PAUL S. APPELBAUM 213 a “need for treatment” model. In this approach, a untary patients might have the right to refuse treat- court may order IOC for a patient who is not cur- mentneverarose—iftheywereinvoluntarilycom- rently dangerous, but who has historically demon- mitted due to need for treatment, that was logically strated the potential for substantial risk of violent or assumed to allow for involuntary treatment, if neces- self-injurious behavior without treatment. sary. However, when the criteria shifted to dangerousness, courts began to consider whether the state was allowed to intervene beyond confinement, to Analysis and Critique force involuntary treatment. Beginning in the early The reactions of psychiatrists to the evolution of 1980s, a number of state and federal court decisions American commitment law mirror the shifting ten- created a right to refuse treatment based on patients’ sions and perceptions of psychiatry, society and the constitutional rights to privacy and due process (25). resources available for the mentally ill. Initially, psy- This typically led to further processes to determine chiatrists were enthusiastic about some of the proce- incompetence and need for appropriate involuntary dural reforms, embracing the idea that involuntary treatment as determined by an outside reviewer, hospitalization should be used infrequently and with with procedures varying by jurisdiction in terms of careful due process, as reflected in a 1972 APA posi- the medical and legal roles and standards. The tion statement (23). Psychiatrists were less enthusi- disjunction between criteria for involuntary com- astic about dangerousness-based criteria, and were mitment and criteria for involuntary treatment not ready to abandon the need for treatment model. could create a group of committed patients who can- As changes in commitment law gained momentum not be treated and for whom the psychiatric hospital and more psychiatrists acquired experience working becomes simply a place of detention. This seeming under the new statutes, critics became more vocal, paradox reflected public and legal ambivalence in arguing that their patients were being turned away balancing individual autonomy rights versus the from care and “dying with their rights on” (24). public protection afforded by involuntary confine- Citing anecdotal cases, psychiatrists called for a ment for non-criminal behavior. The clinically chal- more reasonable middle ground between unlimited lenging outcome illustrates the frustrating tensions hospitalization and the current “belegaled” restric- facing a mental health system designed for treat- tive approach. Three general attacks were made on ment, but with goals increasingly linked to public the dangerousness standard: the system made it too safety. difficult to obtain involuntary treatment for those A particularly influential critic of the new civil patients who are not overtly or imminently danger- commitment laws was psychiatrist Alan Stone, a ous, but desperately in need of care; dangerousness is professor at Harvard Law School who served as pres- not reliably determined by clinicians, who now were ident of the APA in 1979–80. He raised concerns asked to predict dangerousness without any particu- about particular procedural requirements, but fo- lar skills or expertise; and basing commitment on cused his opposition on the exclusive dangerousness dangerousness, particularly to others, changes the standard (26). Stone proposed a “thank you” theory treatment mission of the mental health system to a of civil commitment, emphasizing patients’ need for quasi-police function of protecting the public from treatment, incapacity to make their own decisions, harm. and reasonable expectations that they might benefit Critics suggested that as the threshold for invol- from care. He suggested that, after successful treat- untary hospitalization became too restrictive, pa- ment, these patients would be grateful that commit- tients would needlessly suffer or end up in the ment and helpful treatment had occurred. Building criminal justice system due to illegal behavior that on Stone’s theory, the APA developed a model statute did not meet strict imminent dangerousness criteria. that allowed civil commitment beyond the typical They also cited an additional challenge posed by re- dangerousness-based criteria if the untreated patient moving treatment need from the commitment crite- would suffer severe emotional distress causing func- ria. When commitment was explicitly for the tional impairment, lacked capacity to make in- purpose of treatment, the question of whether invol- formed decisions regarding treatment, and 214 CIVIL COMMITMENT — THE AMERICAN EXPERIENCE treatment was available in the facility in accord with cases, fewer patients were committed on the basis of the least restrictive alternative (27). Overall, the APA suicidality or danger to others, but more were com- model law tried to incorporate many of the proce- mitted on the grounds of inability to care for their dural reforms of the 1960s and 1970s, but allowed a basic needs — the “grave disability” standard that partial return to treatment-oriented commitment had become a catch-all for patients who appeared to criteria. No state adopted in full the reforms sug- need hospitalization on clinical (i.e., need for treat- gested by the APA model law, but as noted above, ment) grounds (32). Looking at patients who were severalstateshavemovedtowardsexpandingthe not committed after emergency room evaluation, re- “grave disability” parens patriae-oriented criteria or searchers found few if any patients who were rated have developed IOC alternatives. high on need for treatment, but low on The critiques offered by American psychiatrists committability (33). Ill patients who were unwilling were typically grounded in anecdotal evidence. to sign in voluntarily were usually evaluated as dan- Many of the published studies were observational or gerous and were committed. Patients who were not had serious methodological flaws. For the few well- in need of treatment were typically not referred for done empirical studies, it was difficult to assess cau- emergency evaluation (34). Again, some researchers sality and the impact of other factors separate from suggested that local financial, administrative and lo- commitment standards. Several researchers looked gistical factors and barriers had more impact on at aggregate statistical data from different states be- what happens to patients than specific statutory or fore and after the change in criteria, testing the hy- procedural requirements. Overall, despite claims pothesis that stricter commitment laws would lead that uncommitted patients were “dying with their to fewer involuntary hospitalizations. In some states, rights on” due to an overly restrictive commitment researchers found dramatic decreases in total admis- process, the studies tended to show that the new dan- sions and involuntary commitments, with a smaller gerousness-based laws had far less impact than ex- rise in voluntary admissions (28). However, the ma- pected on the nature and number of committed jority of studies in other states have shown little or no patients. Although there was often regional varia- permanent effect of the statutory changes on aggre- tion, predictions of widespread patient and commu- gate commitment rates (29). Analyzing these studies, nity suffering went unproven, and analysts struggled Bagby and Atkinson explained the contradictory re- to explain the discrepancy between the dire predic- sults by noting that the studies with significant tions and actual outcomes. changes generally limited their observations to one Observers of the commitment system, such as year post-reform (30). For studies that followed ad- California sociologist Carol Warren, described a missions over a longer period of time, initial drop- “common sense” approach, where judges, attorneys, offs were followed by a gradual return towards pre- families and physicians all seemed to work together reform commitment rates. A 1992 study suggested towards a consensus outcome, hospitalizing patients that changes in commitment rates more likely re- whom they all believed were clearly in need of care, flected other changes in the mental health system regardless of the statutory details (35). In actual (i.e., availability of beds, financing patterns) even practice, these participants in a nominally ad- after some states liberalized their commitment laws versarial and legally bound process seemed reluctant in the 1980s (31). to place liberty rights above obvious suffering and Several studies evaluated the characteristics of need for treatment. Although the vast majority of the patient population, both those committed and committedcasesappearedtomeetthestate’sdanger- not committed under the dangerousness criteria, ousnesscriteria,whenitcametothecasesatthe testing the hypothesis that the tighter standards margins that most concerned opponents of the re- wouldleadtoasickerandmoredangerouscommit- strictivestatutes,theimpactappearedtobemodu- ted patient population. Studies in California, Penn- lated by a generally “beneficent” willingness to sylvania and other states suggested no significant achieve what all agreed was the most practical result changes in the characteristics of committed patients (36). Similar studies found that attorneys tended to from before to after a statutory change. In some think of their clients’ best interests rather than auto- STUART A. ANFANG AND PAUL S. APPELBAUM 215 matically advocating for their clients’ expressed de- over three years claimed an 82% decline in sire for outright release (37). Attorneys frequently readmissions and shorter lengths of stay, although advocated for a more restrictive disposition than the study did not adequately control for other factors their client-patient wanted, and defense attorneys that may have affected hospitalization (such as insti- wouldoftensharetheperceptionthatsomeindivid- tutional changes in the mental health care system) uals needed to be hospitalized for treatment, collab- (41). A later randomized controlled trial of IOC in orating in that process. Despite training to take a North Carolina showed positive outcomes on multi- more aggressive adversarial stance, attorneys in one ple measures (42). Studies in different states demon- study continued to believe that their clients would strated similar outcomes, while other states reported benefit from treatment and commitment (38). Psy- no significant impact from IOC, including an early chiatrists similarly seemed to find ways of flexibly randomized controlled trial in New York City using the commitment criteria to achieve desired (which may have been limited by study design and clinical outcomes, such as increased use of the “grave lack of enforcement mechanisms at the time) (43). A disability” standard to hospitalize patients who may more recent 2005 study from New York suggests require care but did not appear imminently danger- more positive results (44). Overall, these studies sug- ous (39). Similar language was seen in commitment gested that aggressive case management with ade- petitions filed by family members, presumably quate community supports was more likely to lead to coachedintheprocessto“saytherightthing”toget improved outcomes for IOC patients (45). By con- their ill family member into the hospital and needed trast, for states where inadequate resources were pro- treatment (40). Overall, these studies suggested that vided along with inconsistent implementation, mere many lawyers, judges, families, and physicians were passage of an IOC statute seemed to accomplish lit- working together, guided by clinical/legal realism tle. Proponents see IOC as offering more consistent and Warren’s “common sense” model even in the care for those who need it (a return to the need for context of restrictive standards and procedures, to treatment approach), increased availability of com- commit those patients in clear need of treatment munity resources (“committing the system” to care of who were unprepared or unable to obtain it for the patient), and an answer to the “revolving door” themselves. Even with all of these studies suggesting problem of brief inpatient stays alternating with out- that the statutory changes in criteria towards danger- patient non-compliance or irregular community ousness had less impact than expected (or feared), support (46). Treatment can be offered in familiar there still remain several unanswered questions community surroundings with significantly more about civil commitment, including whether men- freedom and flexibility, allowing for rapid interven- tally ill persons actually fare better or worse with one tionsbeforeapatientdeterioratestothepointofa or another set of substantive and procedural stan- significant risk of violence or self-harm. Opponents dards. of IOC fear more state coercion and loss of the right Most recent research has been directed at invol- to refuse treatment, less regulatory oversight, and untary outpatient commitment (IOC), increasingly overburdening of limited community resources (47). the focus of legislative and programmatic efforts in In an era of increasingly limited inpatient resources, the states. The limited body of empirical studies sug- IOC seems a useful “treatment”-driven model, if ad- gests generally positive results, although outcomes equately monitored, resourced and enforced, but it depend largely on adequacy of community resources remains unclear who are the most appropriate pa- and system coordination/implementation. A num- tients for IOC, and whether legislatures are willing to ber of studies in North Carolina, the first state to provide the community resources necessary to sup- allow less restrictive criteria for mandated outpatient port the court-ordered treatment. treatment, found significantly improved compliance and higher retention in treatment for IOC patients comparedtopatientswhowereinvoluntaryhospi- Discussion talized or released at the hearing without further It seems fair to conclude that changes in American treatment. A study of 4,000 patients assigned to IOC commitment law towards more restrictive substan- 216 CIVIL COMMITMENT — THE AMERICAN EXPERIENCE tive and procedural criteria had less impact than cost of public mental health services, and the federal originally expected, for a variety of reasons as noted government provided limited if any funding for above. At the same time, it is obvious on urban state-run hospitals. As state hospitals closed, general streets throughout the United States that there is a medical hospitals began to fill the gap with acute in- large homeless, often untreated, population of patient psychiatric wards, which allowed the states chronically mentally ill patients. Similar visits to our to shift part of the hospital costs to the federal gov- state prisons and county jails reveal large numbers of ernment through the Medicaid and Medicare pro- violent and non-violent criminals with mental grams (50). A similar shift of formerly long-term health issues, some with clear severe and persistent inpatients “transinstitutionalized” to nursing homes, mental illness, who in an earlier era might have been rest homes or other community-based living also al- long-term residents of a state hospital (48). A variety lowed increased sharing of costs with the federal of financial, economic and policy factors have had a government. Faced with internal fiscal pressures, much more dramatic impact on who gets hospital- state mental health authorities seek to maximize op- ized than the language of commitment laws. The portunities to get the federal “matching share” for changes in American commitment laws over the past Medicaid expenditures. [Although the Medicaid 35 years coincided with enormous changes in the programs for the indigent are operated and funded at public mental health system brought on by the state level, each state receives a federal reim- deinstitutionalization, a deliberate process of reduc- bursement match, a minimum of 50% of the state’s ing the inpatient population in public psychiatric expenditures.] Over the past 15 years, the U.S. has hospitals. In 1955, there were over 550,000 public in- seen increasingly managed mental health care, both patient (typically long-term) psychiatric beds in the in the private and public sector, in an effort to con- U.S., for a population of 165 million. Spurred first by tain costs and ration care. These efforts have pushed the successful advent of anti-psychotic and other towards increasingly shorter lengths of stay in acute psychotropic medications, then by the growing com- inpatient units; thus, even if a patient is legally community psychiatry movement, and later by mittable, the stay is typically brief (one week or less) underfunding of state facilities and fiscal pressures, except for the most severely ill individuals (51). For the number of these beds fell rapidly, to 150,000 in patients without private insurance or financial re- 1980 (for a population of 227 million) and to fewer sources, waiting lists abound for underfunded public than 60,000 in 2000 (for a population of 281 million) mental health resources in the community, as well as (49). Although many of these patients could be for the rare long-term inpatient beds left in the dwin- maintained in the community with improved treat- dling number of state hospitals. ment and adequate supports, often these commu- As other nations analyze their commitment laws, nity-based alternative resources were not fully and more generally, their approach to providing care funded. Acute inpatient bed capacity in general hos- for the mentally ill, it can be useful to draw some les- pitals and private facilities did not fill the gap. With sons from the American experience. Civil commit- fewer public inpatient beds available, there would be ment in the U.S. has been shaped by multiple factors, increased pressure to admit only those patients most including sensitivity to civil rights, public perception severely in need of commitment; once admitted, of psychiatry, availability of resources and larger eco- there would be pressure to discharge quickly to keep nomic pressures. The American experience has been up with demand for the reduced number of beds. that clinicians, families and courts generally find a When mentally ill patients, especially the chronically legally acceptable way to commit individuals who ill and indigent, fail to gain admission to psychiatric “need” it, regardless of the substantive and proce- facilities, this may not be due to restrictive commit- dural details of the statute. There is significant local ment standards or overly rigorous legal procedures. variability based on 50+ legal jurisdictions and re- There may simply be no appropriate place to which source issues. (This may be less problematic in a to admit them. smaller country such as Israel with national regula- Financial factors also play an important role. Tra- tions and coordination of resources. Furthermore, ditionally, states were responsible for much of the Israeli civil commitment does not rely on judicial STUART A. ANFANG AND PAUL S. APPELBAUM 217 process, although the courts oversee appeals and su- 7. Grob GN. Mental institutions in America: Social policy pervision.) Although we should not underestimate to 1875. New York: Free, 1973. the impact of changing legal commitment standards, 8. Appelbaum PS, Kemp KN. The evolution of commitment law in the nineteenth century: A reinterpretation. we also must not underestimate the substantial im- Law Human Behav 1982;6:343-354. pact of economic factors, cost shifting and availabil- 9. Group for the Advancement of Psychiatry. Commit- ity of sufficient inpatient and outpatient resources in ment procedures. Topeka, Kansas: GAP, 1948. shaping actual commitment patterns. Our review 10. National Institute of Mental Health. A draft act govern- suggests that, when writing new inpatient or outpa- ing the hospitalization of the mentally ill. 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