Confine Is Fine: Have the Non-Dangerous Mentally Ill Lost Their Right to Liberty? An Empirical Study to Unravel the Psychiatrist’s Crystal Ball

Abstract

This Article will examine the reverse trend in civil commitment laws in the wake of recent tragedies and discuss the effect of broader civil commitment standards on the care and treatment of the mentally ill. The 2007 Virginia Tech shooting, the 2011 shooting of Congresswoman Giffords, and the 2012 Aurora movie theatre shooting have spurred fierce debates about the dangerousness of mentally ill and serve as cautionary tale about what happens when warning signs go unnoticed and opportunities for early intervention missed. This piece will explore the misconception about the role medication and inpatient civil commitments should play in prevention of dangerousness and undermine the belief that we can medicate away the needs of the mentally ill. The adverse effect civil commitments can have on individuals’ long-term recovery, future employment prospects and overall mental, physical, emotional and economic stability can be far-reaching; so minimum due process protections must be carefully guarded. The contention is that civil commitment decisions should be based on concrete evidence that the individual is an imminent danger to self or others and not on a psychiatrists’ speculation about future deterioration absent coerced treatment. Statistical data, collected from a survey of 100 psychiatrists, will be examined to determine what is most significant to psychiatrists in commitment decisions and highlight the impact state standards and types of hospital facilities have on psychiatrists’ testimony at civil commitment proceedings. Finally, this Article will outline how “need for treatment” and “grave disability” provisions in commitment standards have stripped away due process protections for the mentally ill and discuss ways mental health advocates can fight back to reverse this troubling movement in commitment laws.

Keywords: civil commitment laws, civil commitment standards, mentally ill, Virginia Tech shooting, Congresswoman Giffords, Aurora shooting, medication, inpatient civil commitments, due process protections, statistical data, psychiatrists, need for treatment, grave disability provisions

JEL Classification: I18, K19, K32, K39, K49