Overview | Clinical Scenarios | Additional Tips | References

By Ren Belcher, MD and Susan Hatters-Friedman, MD

OVERVIEW

General Principles

If a person in a mental health crisis is unable or unwilling to access psychiatric services:

• All jurisdictions in the United States have procedures for an emergency psychiatric hold, which typically ensures a brief window of opportunity for a professional evaluation of mental status, decision-making capacity, and dangerousness.¹ The hold can usually be initiated by a police officer or a mental health clinician; states vary on the exact qualifications required to authorize a hold. It often takes place in a hospital emergency room, and depending upon location and circumstances, may allow several days on an inpatient unit. Colloquial terms used vary by location, including ‘pink slip’ in Ohio, ‘Baker Act’ in Florida, and ‘5150’ in California.
• If determined necessary, civil commitment generally refers to involuntary psychiatric treatment following, and lasting longer than, an emergency hold.
  • This treatment may take the form of hospitalization (containment), psychotherapeutic services, family involvement, safety planning, and biological treatments such as psychiatric medication or neurotherapeutic procedures.
  • All but three states (MA, CT, and MD) also have procedures for outpatient commitment, also called assisted outpatient treatment.
• The legal process for determining whether a patient must receive involuntary medications may either be integrated into the proceedings for hospitalization or require its own hearings.
  • In general, patients involuntarily contained but not yet authorized to receive involuntary medication may be treated with standing medications only if they consent or assent.
  • In some states, only patients who are hospitalized involuntarily can have legal proceedings for involuntary medications. There are often procedures for changing a patient’s legal status (e.g., revoking their voluntary admission) if involuntary medication is determined necessary.
  • An exception exists for acute danger (e.g., a patient who is actively violent or self-harming) and for life-threatening medical emergencies (e.g., a patient with malignant catatonia who requires parenteral benzodiazepines). In these situations, medications may generally be given over objection without judicial input. Often a physical restraint is required for administration.

If a person with a serious mental illness is indefinitely impaired in making informed decisions about their psychiatric treatment, guardianship proceedings (“conservatorship” in some jurisdictions) allow for the appointment of a substitute decision-maker to lawfully make treatment decisions for the patient. This typically includes authorizing treatment over the patient’s objection. The appointed guardian may be a family member or friend, ideally someone the patient identifies, or may be an attorney or other representative selected by the court.

• Some jurisdictions have separate civil commitment processes for substance use disorder patients and for sex offenders.

Voluntary and involuntary admissions to locked psychiatric treatment facilities usually have separate legal processes and protections.

• Patients admitted involuntarily may undergo further legal processes regarding court-ordered psychiatric treatments, including medications and neurotherapeutic procedures, over the patient’s objection or when the patient is unable to adequately consent.
• Involuntary treatment is usually predicated on a judicial finding of danger to self or others arising from a mental illness and reasonably expected to remit with treatment.
• Parallel legal processes exist for involuntary treatment outside of the hospital setting (assisted outpatient treatment) and for special populations such as substance use disorders and sexual offenders. An overview of implementation by state is available in this open-access article.

Historical Perspectives

• Prior to deinstitutionalization, physicians had broad and unsupervised discretion surrounding admission to mental hospitals, and little attention was paid to whether treatment was administered voluntarily or over objection.
• From the 1960s to 1990s, a number of landmark court cases established principles and safeguards intended to balance patients’ liberty interests (autonomy), their treatment interests (beneficence and nonmaleficence), and state interests in individual welfare and public safety (justice). In the COVID era, additional emphasis has been placed on iatrogenic harm from the commitment process.² Important rulings include:
  • A patient cannot be held involuntarily in a mental hospital if the patient’s care could be safely delivered in any less restrictive environment (Lake v. Cameron 1966)
  • Patients committed to the hospital have a right to treatment that is reasonably expected to lead to their release (Rouse v. Cameron 1966)
  • Civil commitment processes must uphold due process safeguards similar to criminal proceedings (Lessard v. Schmidt 1972) For example, patients must have access to a free attorney
  • Involuntary care must be predicated on a finding of dangerousness resulting from mental illness – i.e., illness alone is not grounds for commitment (O’Connor v. Donaldson 1975)
  • The standard of proof in civil commitment cases is intermediate: clear and convincing evidence of dangerousness without treatment (Addington v. Texas 1979) Clear and convincing evidence is less than is required for criminal cases (beyond a reasonable doubt) but more evidence than is required for civil cases (preponderance of the evidence).
  • Patients must undergo a capacity examination and be determined to have decision-making capacity in order to admit themselves voluntarily. Some states hold a patient’s decision to be voluntarily admitted to a psychiatric hospital to a different standard than the general standard for medical decision-making. In Zinermon v. Burch 1990, a patient signing into the hospital believed that he was actually signing himself into heaven; the court ruled that his request for voluntary admission should have been denied by the admitting physician.

Jurisdictional Considerations

• State laws vary significantly regarding the processes for involuntary admission, involuntary medication, duration of containment, latitude given to psychiatrists in selecting treatments, and other variables. Familiarize yourself with the laws in every state where you practice.
• A state-by-state outline of laws pertaining to involuntary admission and treatment is compiled by the Treatment Advocacy Center and available here.

CLINICAL SCENARIOS

Scenario #1: A 42-year-old woman with a history of schizophrenia has been hospitalized innumerable times for decompensated psychosis in the setting of cannabinoid use and antipsychotic nonadherence. She was brought to the emergency room by ambulance after her group home called 911 to report that she had destroyed a wall while searching for video cameras she believed were recording her movements. You determine that she requires inpatient hospitalization for medication adjustment and aftercare planning. When you inform her, she says she would like to willingly “sign in” as she is satisfied there are no video cameras in the hospital and she does not want to return to her group home anyway. She does not believe she has schizophrenia or needs psychiatric medication but enjoys the hospital environment. As you explain her legal rights, she interrupts you and says “those judges are just clowns. I can leave whenever I want to.” Should you allow her to be admitted to the hospital on a voluntary basis?

• Patients who wish to be admitted voluntarily must undergo a capacity assessment regarding their ability to understand their treatment options and legal circumstances.
• The patient in this example likely does not have capacity to make this decision, as she does not appreciate that she has a mental illness, does not understand the ramifications of the legal process, and does not agree to voluntary treatment that would be expected to restore her capacity (antipsychotic medication).
• If she requires hospitalization, she should be admitted involuntarily. (See Zinermon v. Burch, 1990.)

Scenario #2: A 25-year-old trans man with a psychotic depression is admitted involuntarily for treatment of suicidal ideation. At the end of their emergency hold, they continued to express suicidal ideation. Collateral informants told the treatment team that the patient had communicated with a friend about purchasing a firearm. The patient refused to take antidepressant medication, expressing a belief that the pills were tainted with a poisonous substance. The psychiatrist filed for civil commitment. While awaiting a court hearing, the patient started to bang their head against the wall of their hospital room, drawing blood and causing concussive symptoms. The patient continues to refuse all medications. The nurse calls the overnight resident. Is it appropriate to start medication against the patient’s objection?

• Remember that emergencies (either violent/self-injurious or medical) are an exception to the general principle that patients cannot be medicated involuntarily without a court order.
• Serious self-injury with potential for life-threatening or long-term consequences is certainly an emergency, and it would be ethical and legally appropriate to insist that the presently incapacitated patient take medication that will reduce the likelihood of further harm (e.g., anxiolytic or antipsychotic).
• This may require restraint and the appropriate precautions should be taken.

REFERENCES

1. Hedman LC, Petrila J, Fisher WH, Swanson JW, Dingman DA, Burris S. State Laws on Emergency Holds for Mental Health Stabilization. Psychiatr Serv. 2016 May 1;67(5):529-35. Available from https://ps.psychiatryonline.org/doi/10.1176/appi.ps.201500205.
2. Sorrentino RM, DiCola LA, Friedman SH. COVID-19, Civil Commitment, and Ethics. J Am Acad Psychiatry Law. 2020 Dec;48(4):436-441. Available from http://jaapl.org/content/48/4/436.

Additional Reading

1. Pinals D, Mossman D. Evaluation for Civil Commitment. Oxford University Press USA; 2012.
2. Simpson JR, Carannante V. Hospitalization: Voluntary and Involuntary. In: Principles and Practice of Forensic Psychiatry. CRC; 2016.
3. Testa M, West SG. Civil Commitment in the United States. Psychiatry Edgemont. 2010 Oct;7(10):30–40.