Innovative Statutory Approaches to Civil Commitment: An Overview and Critique

See Appelbaum P. , Standards for Civil Commitment: A Critical Review of Empirical Research, International Journal of Law and Psychiatry 7(2): 133 (1984).

Whereas, There are distracted persons in some tounes, that are unruly, whereby not only the familyes wherein they are, but others suffer much damage by them, it is ordered by this Court and the authoritye thereof, that the selectmen in all tounes where such persons are are hereby impowred & injoyned to take care of all such persons, that they doe not damnify others. (Id. at 43)

Bell L.V. , Treating the Mentally Ill: From Colonial Times to the Present (Praeger, New York, 1980), at 3.

Appelbaum and Kemp , The Evolution of Commitment Laws in the Nineteenth Century, Law and Human Behavior 6: 343, 345 (1982).

New York Laws of 1788 (ch. 31) permitted confinement of the “furiously madd” if their relatives could not care for them and they were “so far disordered in their senses that they may be dangerous to be permitted to go abroad.” Connecticut's 1824 legislation on the subject authorized confinement of the dangerous mentally ill. Schwartz, Liberty and Autonomy Versus Confinement and Commitment, The History of Legal Intervention in Colonial Connecticut Journal of Law and Psychiatry 1983: 461, 488 (1983).

In re Oakes, 8 Law Rep. 122 (Mass. 1845).

Rothman D.J. , The Discovery of the Asylum: Social Order and Disorder in the New Republic (Little, Brown, Boston, 1971), at 128–29.

Bell , supra note 3, at 47.

Appelbaum and Kemp , supra note 4, at 344.

Grob G. , Mental Illness in American Society, 1875–1940 (1983), at 10.

See, e.g., Ariz. Rev. Stat., Penal §2768 (1901) permitting confinement in the territorial insane asylum only when a court found “that by reason of his or her insanity he or she be in danger, if at liberty, of injuring himself or herself, or the person or property of others.”

Dershowitz A. , The Origins of Preventive Confinement in Anglo-American Law, Part II: The American Experience, University of Cincinnati Law Review 43(4): 808 (Fall 1974).

Curran W.J. , Hospitalization of the Mentally Ill, North Carolina Law Review 31(2): 274, 286–89 (February 1953); Comment, Analysis of Legal and Medical Considerations in Commitment of Mentally Ill, Yale Law Review 56(7): 1178 (August 1947).

Weihofen H. Overholser W. , Commitment of the Mentally Ill, Texas Law Review 24(3): 307, 338 (April 1946).

Id.

Id. at 340, 343.

In re Gault, 387 U.S. 1 (1967).

See State ex rel Hawks and Lazaro, 202 S.E.2d 109 (W. Va. 1974).

See Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968).

Shuman D.W. , The Road to Bedlam: Evidentiary Guideposts in Civil Commitment Proceedings, Notre Dame Lawyer 55(1): 53–54 (October 1979).

See Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974).

Bell v. Wayne County General Hospital, 384 F. Supp. 1085 (E.D. Mich. 1974).

Addington v. Texas, 441 U.S. 418 (1979).

Stromberg C.D. Stone A.A. , A Model State Law on Civil Commitment of the Mentally Ill, Harvard Journal on Legislation 20(2): 275, 340 (Summer 1983).

Id. at 341.

Id. at 345.

American Bar Foundation, The Mentally Disabled and the Law (ed. Lindman and McIntyre ) (1971), at 36.

Beis, State Involuntary Commitment Statutes, Mental Disability Law Reporter 350 (1983).

Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd sub nom. 503 F.2d 1305 (5th Cir. 1974).

See New York State Association for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1973).

In the mental health field, where diagnosis and treatment are uncertain, the need for treatment without some degree of imminent harm to the person or dangerousness to society is not a compelling justification [for civil commitment]. (Id. at 514)

Stromberg and Stone, supra note 24, at 277.

See American Psychiatric Task Force, Report 8: Clinical Aspects of the Violent Individual (1974); John Monohan, The Clinical Prediction of Violent Behavior (National Institute of Mental Health, Rockville, Md., 1981).

Brooks, Defining the Dangerousness of the Mentally Ill: Involuntary Civil Commitment in Mentally Abnormal Offenders (ed. Craft M. and Craft A. ) (1984).

Lessard, supra note 31, at 1094.

O'Connor v. Donaldson, 422 U.S. 563, 581-84 (1975) (Burger C.J., conc.); D.W. Shuman, K.F. Hegland, D.B. Wexler, Arizona's Mental Health Services Act: An Overview and an Analysis of Proposed Amendments, Arizona Law Review 19(2): 313, 336 (1977).

Id.

See Stromberg and Stone, supra note 24.

5 as the result of the severe mental disorder, the person is (a) likely to cause harm to himself or to suffer substantial mental or physical deterioration, or (b) likely to cause harm to others. (Id. at 330)

(Tex. Civ. Code Ann. art. 5547–50[b] [Vernon Supp. 1985])

II. That there is a reasonable probability of serious physical debilitation to him within the near future unless adequate treatment is afforded pursuant to this Article. A showing of behavior that is grossly irrational or of actions which the person is unable to control or of behavior that is grossly inappropriate to the situation or other evidence of severely impaired insight and judgment shall create a prima facie inference that the person is unable to care for himself. (N.C. Gen. Stat. §122-58.2 [1]a)

(1) “Gravely disabled” means a condition in which a person, as a result of a mental disorder: (a) Is in danger of serious physical harm resulting from a failure to provide for his essential human needs of health or safety, or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care as is essential for his or her health or safety. (Wash. Rev. Code Ann. §71.05.020[1] [Supp. 1985])

Doe v. Gallinot, 486 F. Supp. 983, 991 (C.D. Cal. 1979); aff'd 657 F.2d 1017 (9th Cir. 1981). Coylar v. Third Judicial District Court, 469 F. Supp. 424, 432 (C.D. Utah 1979).

Stromberg and Stone, supra note 24, at 277–78.

Appelbaum, supra note 1, at 134.

See, e.g., Luckey J.W. Berman J.J. , Effects of a New Commitment Law on Involuntary Admissions and Service Utilization Patterns, Law and Human Behavior 3(3): 149 (1979); McGarry, Statewide Statistical Impact: Old Statute vs. New Statute, in Civil Commitment and Social Policy: An Evaluation of the Massachusetts Mental Health Reform act of 1970 (ed. Schwitzgehel, Lipsitt, and Lelos) (1981).

See Dix G.E. , Acute Psychiatric Hospitalization of the Mentally Ill in the Metropolis: An Empirical Study, Washington University Law Quarterly 1968(4): 485 (Fall 1968); Wexler D.B. , Special Project: The Administration of Psychiatric Justice: Theory and Practice in Arizona, Arizona Law Review 13(1): 1 (1971).

Munetz, Feedback, Hospital and Community Psychiatry 32: 281 (1981); C.A.B. Warren, Involuntary Commitment for Mental Disorder: The Application of California's Lanterman-Petris-Short Act, Law and Society Review 11(4): 629, 642 (Spring 1977); Zander, Civil Commitment in Wisconsin: The Impact of Lessard v. Schmidt, Wisconsin Law Review 1976(2): 503, 538–49 (1976).

Pierce G.L. Durham M.L. Fisher W.H. , The Impact of Broadened Civil Commitment Standards on Admissions to State Mental Hospitals, American Journal of Psychiatry 142(1): 104, 106 (January 1985).

Stromberg and Stone, supra note 24, at 277.

See Dix G.E. , The 1983 Revision of the Texas Mental Health Code, St. Mary's Law Journal 16(1): 41, 121 (1984).

See Appelbaum, supra note 1.