法律英语：38 Involuntary Commitment II（在线收听）

by Michael W. Flynn
 
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
This is the second is episode in a two-part series on involuntary commitment. This episode will discuss the practical procedures implemented for involuntary commitment.

As discussed in the last episode, American jurisdictions have passed laws that allow certain government bodies to force citizens to go to a mental health facility and receive treatment. The government body is often the county health commissioner or director of public health, or sometimes police.

In most jurisdictions, a patient can be held in a mental health facility without a court hearing for 48-72 hours when there is a showing of immediate physical danger. This often happens when a police officer approaches a citizen for a minor infraction such as loitering, and the citizen reacts violently or in a way that suggests they will harm themselves.

But, to keep a patient longer, the agency must obtain a court order. So, the agency must present evidence of why the patient is a danger, and the patient, or his agents (including family or an attorney), can present evidence to show why the patient is no longer a danger. Often, the initial commitment is done while the patient is under an acute episode of mental delusion, or because the patient is under the influence of drugs. So, the patient might submit evidence that he is no longer dangerous because the drugs have worn off, or the episode has passed.

The standard for involuntarily commitment of a citizen is high. The United States Supreme Court has held that due process requires that the government must present “clear and convincing evidence” that the patient needs to be committed for an unspecified period of time. The Court reasoned that the process involves a loss of liberty and stigmatization, and so the evidence must be higher than the normal “preponderance of the evidence” standard normally used in civil cases. A “preponderance” standard only means that it is more likely than not that the government has carried its burden.

But, the Court refused to require states to use the “beyond a reasonable doubt” standard that is used for criminal incarceration. The Court reasoned that the state has a strong interest in protecting the patient and other citizens, and so due process did not require this high burden. However, the Court also noted that a state was free to require a higher burden than “clear and convincing evidence” if it so chose. The state can require more than the constitutional minimum, just not less.

Last, the state must allow for periodic review procedures to confirm that the patient continues to be a danger to himself or others. This requirement recognizes that some patients suffer from temporary or episodic problems, and keeping the patient against his will when he is no longer a danger simply goes too far.

Turning to Jeff’s question about how to resist involuntary commitment, state courts have looked to various indications that the patient is not a danger to himself. The most common example comes in the form of testimony from family members and treating physicians where they testify that the patient voluntarily takes medications that keep the patient from being a danger. Conversely, testimony that the patient refuses medication or treatment is strong evidence that the patient needs to be committed. The other main point of contention is the link between the mental illness and dangerousness. So, several courts in Illinois and Alabama reversed commitment orders where the government proved that a patient suffered from a mental illness, but failed to present evidence showing that the mental illness was the cause of the patient’s behavior that caused harm.

And last, please note that involuntary civil commitment is a very different animal than a conservatorship or guardianship. A conservatorship establishes the authority for a private person, not the government, to care for another and make decisions about their property and sometimes health care. This is often used for elderly parents who might suffer from dementia and are therefore unable to take care of their daily lives. The parent is not really a danger to others, but would likely deteriorate if another person did not have the legal power to care for them. There are different standards and legal principles that apply to conservatorships that I can discuss in a future episode.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. You can send questions and comments to。。。。。。or call them in to the voice mail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.