Changes in the Legal Status of Mental Patients as Waivers of a Constitutional Right: The Problem of Consent

Abstract

One modification of mental health statutes in recent years has been to limit involuntary commitment to a specified interval of time. If the hospital wishes to continue an involuntary hospitalization beyond this authorized period, a judicial hearing is required during which the hospital must justify extension. Under current statutes, however, the hearing requirement is eliminated when a patient transfers from involuntary to voluntary status. In other words, a change to voluntary status can be a waiver of the judicial hearing. The argument in this article is that many waivers via changes to voluntary status are probably not the product of voluntary consent. Recommendations for statutory modifications with regard to the periodic judicial hearings and changes to voluntary status are presented.