The Prediction of “Dangerousness” as a Criterion for Involuntary Civil Commitment: Constitutional Considerations

Abstract

The fundamental premise of this paper is that involuntary civil commitment constitutes an adversary procedure, since the individual so committed is deprived of fundamental civil liberties. This is particularly true when the individual is committed because he is dangerous to others and the state is, therefore, acting primarily in the interests of others, i.e., the protection of society, rather than in the interests of the patient. The civil commitment hearing must, therefore, meet the high standard of proof required in criminal trials by substantive due process. Civil commitments which are based on the predictions of psychiatrists are a denial of 14th amendment safeguards, since the state of the science does not qualify the psychiatrist as an expert witness. Evidence to this point includes: (1) disagreement among experts on a definition of dangerousness; (2) a lack of consensus regarding indicators of potentially dangerous behavior; (3) confusion on the part of psychiatrists regarding legal standards distinguishing mental illness, incompetency and dangerousness; (4) the unfounded use of clinical judgment rather than actuarial methods in prediction by psychiatrists; (5) the difficulties inherent in the prediction of infrequent events; and (6) the antipodal nature of the decision rules in law and in medicine. Given the fundamental prognostic limitations, the author recommends a reevaluation of current commitment practices and urges psychiatrists to examine the ethical ramifications of their continuing participation in such procedures.