MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES
I. Civil Commitment
A. Each state has civil commitment laws that detail when a person
can be legally declared to have a mental illness and be placed in
a hospital for treatment.
1. Liberal era, from 1960 to 1980:
commitment to individual rights and fairness.
During this period, the rights of people with mental illness
2. Neoconservative era, from 1980 to present:
a reaction to the liberal reforms of the 1960s and 1970s
characterized by an emphasis on law and order.
During this era, the rights of people with mental illness
were limited to provide greater protection of society.
B. Civil commitment laws in the US date back to the late 19 th
Before that time, people with mental illness were cared for by
family members, the community at large, or were left to care for
Large public hospitals ushered in an alarming trend; namely,
commitment of people for reasons that were unrelated to mental
illness (e.g., holding different political views).
C. Criteria for civil commitment have evolved.
1. Historically, states permitted civil commitment when either
of the following conditions were met.
a. The person was shown to have a mental illness and
a need for treatment.
b. The person was deemed dangerous to self or
c. The person was unable to care for him or herself, a
situation referred to as a grave disability. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 2
2. The government justifies its right to act against the
wishes of the individual under two types of authority.
a. Police power authority, the government takes
responsibility for protecting public health, safety, and
welfare and can create laws and regulations to
ensure such protection.
b. Parens patriae, the state applies power when
citizens are unlikely to act in their own best interest
used to commit individuals with severe mental illness
when it is believed they might be harmed for not
being able to secure basic life necessities,
or because they fail to recognize the need for
3. Civil commitment process
a. Specifics of this process vary by state, but it usually
begins with a petition by a relative or mental health
professional to a judge.
This process is similar to legal proceedings
the person under question has all the rights and
protections provided by the law.
must be notified that civil commitment proceedings
are taking place,
must be present during the trial,
must have representation by an attorney,
can request witnesses and independent evaluation.
b. In emergency situations involving clear immediate
danger, a short-term commitment can be made
without formal proceedings required of civil
commitment. Certification of danger is usually made
by family or the police. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 3
D. Mental illness is a legal concept, meaning severe emotional or
thought disturbances that negatively affect an individual’s health
Each state has its own definition of mental illness, and the term
mental illness is not synonymous with psychological disorder.
Many states exclude mental retardation or substance-related
disorders from the definition of mental illness.
1. Assessment of dangerousness is a critical and
controversial feature of the civil commitment process. An
important issue is whether persons with mental illness are
more dangerous or prone to violent behavior then the
a. In general, persons with hallucinations and delusions
are not at an increased risk for violence but are more
likely to have a higher number of arrests.
b. Research also suggests that mental health
professionals can identify groups of people who are
at greater risk than the general population for being
violent (e.g., having a previous history of violence)
and can so advise the court.
What cannot be done is to predict with certainty
whether a particular person will or will not become
violent. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 4
E. Problems with the process of civil commitment, particularly
with regard to ambiguity and subjectivity, have resulted in
several legal developments with economic and social
1. The Supreme Court stated in 1957, in the case of
O’Connor v. Donaldson, that a state cannot
constitutionally confine a non-dangerous individual who is
capable of surviving safely in freedom by himself or with
the help of willing and responsible family and friends.
Similarly, in 1979, in the case of Addington v. Texas, the
Supreme Court stated that more than just a promise of
improving one’s quality of life is required to commit
someone involuntarily. Needing treatment or having a
grave disability was not sufficient to commit someone with
a mental illness involuntarily.
The effect of this later decision was to limit substantially
the government’s ability to commit persons unless they
2. Tighter restrictions on involuntary commitment in the
1970s and 1980s led to severely mentally ill persons living
in the community w/o needed mental health services and
their behavior often resulted in problems with the police.
Criminalization of the mentally ill became a concern as
the justice system was not prepared to care for such
The following trends also emerged during this time:
a. Number of homeless increased dramatically.
About 2.3 to 3.5 million persons in the US are
25% of these have a previous history of
hospitalization for mental health problems,
30% are considered severely mentally ill. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 5
b. Deinstitutionalization The goal of providing
alternative community care has not been attained.
Instead transinstitutionalization (i.e., the
movement of people with severe mental illness from
large psychiatric hospitals to nursing homes or other
group residences, including jails and prisons)
occurred. Deinstitutionalization is largely considered
c. The perception that civil commitment restrictions and
deinstitutionalization caused homelessness led to
changes in commitment procedures.
F. Changes with regard to commitment procedures resulted from a
culmination of factors (e.g., lack of success with
deinstitutionalization, the rise of homelessness, and
criminalization of people with severe mental illness).
1. Rulings such as O’Connor v. Donaldson and Addington
v. Texas argued that mental illness and dangerousness
should be criteria for involuntary commitment.
However, concerns about homelessness and criminalization
led to calls for a return to broader civil commitment
procedures that would permit commitment in cases of
dangerousness, but also for individuals who were not
dangerous but in need of treatment and for those with
2. The National Alliance for the Mentally Ill (NAMI)
argued for legal reform to make involuntary commitment
several states in the late 1970s and early 1980s changed
their civil commitment laws in an attempt to address such
Hospitals began to fill due to longer stays, repeated
admissions, and acceptance of only involuntary
admissions. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 6
II. Criminal Commitment
A. Criminal commitment is the process by which people are
detained in a mental health facility for assessment of fitness to
stand trial because they have been accused of committing a
or if they have been found not guilty of a crime by reason of
B. With respect to the insanity defense, the law recognizes that
people are not responsible for their behavior under certain
circumstances and that punishment would therefore be unfair.
Current views of criminal commitment have been shaped by a
case recorded over 150 years ago in England involving Daniel
1. The M’Naghten rule reflects the decision of the English
court that a person is not responsible for their criminal
behavior if they do not know what they are doing, or if
they do not know that what they are doing is wrong.
The insanity defense originated with this ruling, and this
ruling was used for more than 100 years to determine
culpability when a person’s mental state was in question.
2. In more recent times, other standards have been
introduced to modify the M'Naghten rule because some
viewed reliance of a person’s knowledge of right versus
wrong as too limiting.
Modifications were designed to account for one's entire
range of functioning when determining responsibility for
behavior. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 7
a. The Durham rule, initiated in 1954 in the case of
Durham v. United States, broadened the criteria
for responsibility from knowledge of right versus
wrong to include the presence of a mental disease or
This was discarded, however, because mental health
professionals lacked the expertise to reliably assess
whether one's mental illness caused criminal
Though the Durham rule is no longer used, its effect
was to cause reexamination of the criteria used in
the insanity defense.
b. American Law Institute (ALI) criteria were
established in 1962.
ALI reaffirmed the importance of distinguishing
behavior of people with and without mental illness.
ALI concluded that people are not considered
responsible for their criminal behavior if, because of
their mental illness, they could not recognize the
inappropriateness of their criminal behavior or
The ALI test stipulates that a person must either be
unable to distinguish right from wrong (as set forth
by M’Naghten) or be incapable of self-control to be
shielded from legal consequences.
Also included in these writings were provisions for
diminished capacity, or the idea that one's ability
to understand the nature of his/her behavior and
criminal intent (mens rea) could be lessened by
Criminal intent requires proof of the physical act
(actus rea) and the mental state (mens rea) of the
person committing the act. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 8
3. Court rulings though the 1960s and 1970s on criminal
responsibility parallel that of civil commitment. The focus
was on the needs of people with mental illness who also
broke the law and to provide mental health treatment
instead of punishment. Use of insanity or diminished
capacity in criminal cases alarmed the public.
a. The case that prompted the strongest outrage
against the insanity defense and calls for its abolition
was that of John W. Hinckley, Jr. who attempted
to assassinate President Ronald Regan. Hinckley was
judged not guilty by reason of insanity (NGRI) using
the ALI standard.
b. The public overestimates how often the insanity
defense is used,
how often the defense is successful,
how often those acquitted with the insanity defense
length of confinement.
The insanity defense is used in less than 1% of
criminal cases, and persons judged NGRI spend
more time in a hospital than they would have in jail.
4. Major changes were made in criteria for the insanity
defense after the John Hinckley verdict.
a. Congress passed the Insanity Defense Reform Act
in 1984, which made use of the insanity defense
more difficult by moving toward M'Naghten-like
definitions. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 9
b. Another attempt to reform the insanity plea has been
to replace "not guilty by reason of insanity" to
"guilty but mentally ill" (GBMI).
Persons found GBMI are not sent to prison initially
but are evaluated.
Thereafter, if such individuals recover from their
mental illness, they are then sent to prison.
The latter verdict allows for treatment and
c. The second version of GBMI is even harsher for the
mentally ill offender. Convicted individuals are
imprisoned, and the prison authorities may provide
mental health services if they are available. The
GBMI verdict in such cases is simply a declaration by
the jury that the person was mentally ill at the time
the crime was committed, and therefore is not