civil commitment

civil commitment

Parens patria commitment

In its parens patria power, at common law the state may act as "'the general guardian of all infants, idiots, and lunatics." 3 Blackstone at 47, cited in [Donaldson v O Connor] (Burger concurring). "(T)he States are vested with the historic parens patriae power, including the duty to protect 'persons under legal disabilities to act for themselves.'" [Donaldson v O Connor] (Burger concurring).

A finding of "mental illness" alone cannot justify a State's locking a person up against his will and keeping him indefinitely in simple custodial confinement. [Donaldson v O Connor] (awarding damages under § 1983 to man kept in merely custodial care on a finding of schizophrenia). A person must be both mentally ill and dangerous in order to be civilly committed "without more." [Donaldson v O Connor].

Note that even if a patient's involuntary confinement was initially permissible, it can not constitutionally continue after that basis no longer exists. [Jackson v Indiana]; see also [Fouchat v Louisiana] (holding that a defendant successfully using the insanity defense may not be committed once he no longer is mentally ill).

See also the new IL involuntary commitment standard:

"Dangerous conduct" means threatening behavior or conduct that places another individual in reasonable expectation of being harmed, or a person's inability to provide, without the assistance of family or outside help, for his or her basic physical needs so as to guard himself or herself from serious harm.
405 ILCS 5/1-104.5

Sec. 1-119. "Person subject to involuntary admission"
means:
(1) A person with mental illness and who because of his or her illness is reasonably expected to engage in dangerous conduct which may include threatening behavior or conduct that places that person or another individual in reasonable expectation of being harmed; or
(2) A person with mental illness and who because of his or her illness is unable to provide for his or her basic physical needs so as to guard himself or herself from serious harm without the assistance of family or outside help; or .
(3) A person with mental illness who, because of the nature of his or her illness, is unable to understand his or her need for treatment and who, if not treated, is reasonably expected to suffer or continue to suffer mental deterioration or emotional deterioration, or both, to the point that the person is reasonably expected to engage in dangerous conduct.
In determining whether a person meets the criteria specified in paragraph (1), (2), or (3), the court may consider evidence of the person's repeated past pattern of specific behavior and actions related to the person's illness.
405 ILCS 5/1-119

See also the TAC model law:

After reviewing the evidence presented at the hearing, the Psychiatric Treatment Board shall only order assisted treatment, which can be on either an inpatient or outpatient basis, if it finds the following by clear and convincing evidence:
1. that the person has a severe psychiatric disorder;
2. that the person is either a danger to himself or herself, a danger to others, gravely disabled, or chronically disabled; and
3. that, except for someone found to be a danger, the person is likely to benefit from assisted treatment.
TAC MCL § 7.3

Danger to himself or herself: may be shown by establishing that, by his or her behavior, a person is in the reasonably foreseeable future likely to either attempt suicide, to inflict bodily harm on himself or herself or, because of his or her actions or inaction, to suffer serious physical harm in the near future. The person’s past behavior may be considered.
TAC MCL § 2.7

Danger to others: may be shown by establishing that, by his or her behavior, a person is in the reasonably foreseeable future likely to cause or attempt to cause harm to another. Evidence that a person is a danger to others may include, but is not limited to:
1. that he or she has inflicted, attempted or threatened in an objectively serious manner to inflict bodily harm on another;
2. that by his or her actions or inactions, he or she has presented a danger to a person in his or her care; or
3. that he or she has recently and intentionally caused significant damage to the substantial property of others.
TAC MCL § 2.8

Note that the TAC law mirrors the looser IL standard for danger to self, but requires objective proof that the individual has acted or tried to act in a manner dangerous to others.

Police power commitment

The state may incarcerate individuals without "punishing" them (and thus not violating Amendment V by not providing a trial) as long as the intent of such incarceration is not punishment, the restriction is rationally connected to a purpose, and incarceration is not excessive for such purpose. [US v Salerno] (upholding pretrial detention policy for persons accused of serious criminal offenses); but see [US v Salerno] (Brennan dissenting) (arguing that the standard would justify incarceration of the unemployed). "When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community . . . a court may disable the arrestee from executing that threat." [US v Salerno].

Note that in Illinois, an order to commit a person "in need of mental treatment" does not per se violate due process "absent evidence of prior harmful conduct." [People v Sansome] (upholding civil commitment of person solely on basis of schizophrenia needing treatment); cf the Constitutional prohibition on status crimes. However, commitment "must be based upon an explicit medical opinion regarding the patient's future conduct, and cannot be based upon a mere finding of mental illness." [People v Sansome].

Sex offenders

Note that persons committed under these statutes are essentially sent to prisons. However, some states such as Illinois house these persons in prisons, but in separate wings with separate staff in order to withstand constitutional challenge to the "civil" nature of commitment.

Hendricks v Kansas (allowing civil commitment by specified term for person found to have a "mental abnormality" and a predisposition to violence, on the grounds that (1) due process is satisfied as per [Fouchat v Louisiana] where a person has a "mental abnormality" rather than a "mental illness," given that "mental illness" has no "talismanic significance," that (2) civil commitment does not here offend the Ex Post Facto Clause where the legislature had intended to make commitment proceedings civil rather than criminal, commitment was to prevent future violence rather than to punish, and no criminal intent was required, and that (3) civil commitment here does not violate the [Double Jepoardy Clause] where the state is not punishing the prisoner)

[Crane v Kansas] (Hendricks v Kansas "set forth no requirement of total or complete lack of control," so that a person may be confined as a sexual offender even if he is not "completely" unable to control violent behavior, but the [Due Process Clause] requires some lack-of-control finding to justify commitment by distinguishing dangerous persons with mental illness from ordinary recidivists; see also Scalia, J, dissenting, who argues that the Act's "required finding of a causal connection between the likelihood of repeat acts of sexual violence and the existence of a "mental abnormality" or "personality disorder" necessarily establishes "difficulty if not impossibility" in controlling behavior," and that no workable distinction can be made between different sorts of lack of control leading to violence)

[Seling v Young] (holding that a sexual offender commitment statute "found to be civil, cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release" on the grounds of the sort of conditions faced by the incarcerated person; note the discussion of how the offender may have a state-law claim to remedy the conditions of his confinement)

Standard of proof

[Addington v Texas] (establishing a "clear and convincing evidence" burden of proof for civil commitment, given that (1) the defendant's liberty interest is too important for him to share the risk of error equally with the state, but that (2) a "reasonable doubt" standard is not required given that the state is not attempting to impose punishment, there are greater opportunities for a person's status to be reviewed (and errors corrected) during civil commitment, a risk of harm exists if a mentally ill person is not committed or treated, and that the lack of certainty in mental illness that make proof beyond a reasonable doubt impractical in the circumstances)

[Allen v Illinois] (refusing Amendment V protections against self-incrimination for civil commitment statute, even though prisoner was to be committed to a maximum-security institution with convicts, on the grounds that the commitment mandated treatment and did not allow for committees to be treated the same as convicts, and that a person could be committed only after being charged with a criminal offense)

Note also that Jones v US allows a successful insanity defense to automatically serve as grounds for indefinite, involuntary civil commitment.

Duration of commitment/ release proceedings

Minors and the mentally retarded

[Parham v JL] (requiring only screening by "independent" physician to commit minor child on parent's request, given identification of parent's interest with child's, state's interest in accurately screening children for admission to mental hospitals, and overall interest in avoiding trauma of full-blown adversary hearing)
[Heller v Doe] (upholding lower standard of proof for mentally retarded persons than for mentally ill, given relative ease and accuracy of diagnosing mental retardation)

Voluntary admission

A person must be able to consent to enter voluntary inpatient admission. [Zinermon v Burch]; compare standards in contract for the mental competency required. As the Court recognized in [Zinermon v Burch], many prospective inpatients will not meet the standard; not only is the issue of consent typically ignored in inpatient admission procedures, but hospitals may use the threat of involuntary commitment to gain voluntary admission.

See also IL standards for leaving voluntary admission:

A voluntary recipient shall be allowed to be discharged from the facility at the earliest appropriate time, not to exceed 5 days, excluding Saturdays, Sundays and holidays, after he gives any treatment staff person written notice of his desire to be discharged unless he either withdraws the notice in writing or unless within the 5 day period a petition and 2 certificates conforming to the requirements of paragraph (b) of Section 3-601 and Section 3-602 are filed with the court. Upon receipt of the petition, the court shall order a hearing to be held within 5 days, excluding Saturdays, Sundays and holidays, and to be conducted pursuant to Article IX of this Chapter. Hospitalization of the recipient may continue pending further order of the court.
405 ILCS 5/3-403

Outpatient commitment

A court may order "outpatient" commitment, in which a defendant may live in the community but is ordered to take medication and otherwise comply with treatment. Outpatient commitment comports with Amendment V. [Matter of KL]. However, note that outpatient commitment is almost never used.