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Rights and Privacy Issues

Summary

People with mental health conditions deserve the same degree of personal autonomy and legal protection as other people.i This includes people meeting the legal definitions found in state statutes for involuntary commitment to psychiatric hospitals. Involuntary treatment of any kind should be used in only limited circumstances and only as a last resort.

States and communities should invest in resources that will provide people with mental health conditions treatment and support in the community. These resources include, but are not limited to, outpatient treatment, crisis response, appropriate housing,ii and access to peer support. Mental Health America supports a comprehensive mental health system that provides a continuum of care that includes upstream prevention, engaging resources, and trauma informed services.iii Creating such a system will dramatically reduce the need for involuntary treatment.iv

Main message

  • Inpatient commitment should only occur when a court finds that a person is unable to live safely in the community and there is no suitable alternative for that person available in the community.v Specifically, there should be proof of likely harm that is serious, imminent and physical.vi
  • We can achieve most of the positive effects of outpatient commitmentvii by providing an appropriate array of voluntary outpatient services and engagement efforts.viii Outpatient commitment should only occur as an alternative for someone: (1) who would otherwise meet criteria for inpatient commitment; or (2) when there is a demonstrated historyix that, without involuntary community treatment, the person will need inpatient care in the very near future.
  • The involuntary administration of psychotropic medications and other treatmentsx should only occur when, in a hearing with appropriate procedural protections,xi it is determined that the person lacks decisional capacity and the benefits of the treatment will outweigh the risks and harms.xii

Supporting messages

  • Psychiatric hospitals and other facilities that accept persons who are involuntarily committed should be held to the highest treatment standards. These hospitals should be required to provide a range of treatment opportunities in addition to medication, including individual therapy sessions and peer support services.
  • Confinement in a psychiatric hospital is a substantial deprivation of liberty.xiii Persons facing involuntary commitment are entitled to appropriate procedural protections including competent legal counsel and appointed counsel if indigent.xiv
  • A person facing or already subject to involuntarily hospitalization should be permitted to sign into the hospital voluntarily only after conferring with his or her attorney. The attorney should explain to the person all the ramifications of signing into a hospital on a voluntary basis including any restrictions on the person’s ability to leave the hospital.xv
  • Most people who need inpatient care for a mental health condition will need outpatient care upon release. One of the main reasons that people with serious mental health conditions are re-hospitalized is our failure to provide an adequate array of outpatient services upon discharge.xvi Psychiatric hospitals should work with persons being discharged from commitment to create an appropriate and comprehensive plan for community care and should work to ensure that they are connected to a provider before leaving the hospital. Peer support specialists should be utilized to assist people being discharged from inpatient settings throughout the transition and beyond.xvii
  • There is a long history of racial disparities in the mental health system.xviii Unfortunately, these disparities persist in the present. They include diagnosing African Americans with more serious mental illnesses than whites when they experience the same symptomsxix and a greater use of inpatientxx and outpatientxxi commitment for African Americans. We must address these disparities. Their persistence provides additional support for minimizing the use of coercion in the mental health system.
  • Advance directives have proven to be a useful mechanism for maintaining and increasing the autonomy of persons with mental health conditions and allowing them to obtain the treatment that they need and want. MHA encourages states to expand the use of advance directives.xxii

Call to action

MHA calls upon legislators and policy makers to enact and uphold laws and policies that protect the autonomy and dignity of persons with mental illnesses by providing them with the mental health services they both want and need in the least coercive manner and the least coercive setting.

Effective date: The Mental Health America Board of Directors has adopted this policy on March 7, 2024. It will remain in effect for a period of five (5) years.

i Some people with serious mental health conditions that are not being effectively treated will, for periods of time, lack decisional capacity. However, it is a bedrock principle of American law that everyone is presumed to be competent to make decisions. Additionally, only a tiny percentage of persons with serious mental illnesses have ever been determined to be incompetent. Unless and until a court makes such a determination, persons with mental illnesses are entitled to the same presumption of competence and protections as everyone else.

ii See MHA’s Statement on “Supportive Housing and Housing First.” https://www.mhanational.org/issues/supportive-housing-and-housing-first 

iii MHA’s commitment to prevention and early intervention in order to prevent the need for coercive care is detailed in its B4Stage4 campaign. https://mhanational.org/b4stage4-changing-way-we-think-about-mental-health

iv Put another way, Mental Health America strongly opposes the use of coercion as a substitute for providing persons with mental illnesses with the services they need.

v O’Connor v. Donaldson, 422 U.S. 563 (1975) (“…a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” It is important to note that we do not treat non-psychiatric medical conditions including cancer, diabetes, and other serious illnesses on an inpatient basis when we can treat them on an outpatient basis. There is no reason that mental health care should be different.

vi Among the reasons why inpatient commitment should be used only as a last resort is that inpatient psychiatric care is often harmful to the person even when it is voluntary. Martinaki, et al., “Psychiatric Admission as a Risk Factor for Posttraumatic Stress Disorder,” 305 Psychiatric Research 11476 (Nov. 2021) https://pubmed.ncbi.nlm.nih.gov/34455217/#:~:text=Abstract,have%20not%20been%20addressed%20adequately 

vii Outpatient commitment is often called “Assisted Outpatient Treatment” or ”AOT.” MHA believes that it is not helpful to refer to this intervention with euphemistic language, which disguises its coercive nature.

viii The research concerning the effectiveness of outpatient commitment is mixed. That is in part due to the fact that outpatient commitment laws vary widely in terms of: (1) who may be subject to outpatient commitment; (2) the procedural protections available; (3) the mental health services provided; and (4) the logistical support for administration and enforcement. Summaries of the research include: Swartz, et al., “Involuntary Outpatient Commitment and the Elusive Pursuit of Violence Prevention” 62 Canadian J. Psychiatry 102-108 (Feb. 2017)(finding no evidence that outpatient commitment reduces violence) https://pubmed.ncbi.nlm.nih.gov/27777274/; Kisely, et al., “Compulsory community and involuntary outpatient treatment for people with severe mental disorders” Cochrane Database Syst Rev 2017 Mar 17;3(3):CD004408. https://pubmed.ncbi.nlm.nih.gov/28303578/ Because evidence of its success in unclear, when outpatient commitment is used, there should be systematic monitoring of the results in order to insure that persons with mental illnesses are actually benefiting.

ix This history must include evidence that the person has previously refused needed treatment in the community and that refusal has resulted in hospitalization, involvement in the criminal justice system or other serious harm.

x The most common treatment (other than medications) which may be ordered by a court is electro-convulsive therapy (ECT). Given the serious side effects that accompany ECT, its history of misuse and the growing availability of other treatments for depression, MHA opposes the involuntary administration of ECT.

xi These procedural protections should include the right to an attorney and many, if not all, of the procedures listed in note xiv below.

xii Washington v. Harper. 494 U.S. 210, 218 (1990).

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

xiv Heryford v. Parker, 396 F.2d 393 (10th Cir. (1968). Other procedural protections should include: a judicial hearing at which at least one mental health professional testifies (citation); brief pre-hearing detention (citation); the right to be free from “psychiatric boarding” in emergency departments and non-psychiatric facilities; an independent mental health evaluation (citation); the right to appeal an adverse decision, including the appointment of appellate counsel and the waiver of appellate costs if indigent (citation); adherence to the “clear and convincing evidence” standard of proof (Addington v. Texas); and short time limits on any commitment or procedures for regular review of continued confinement which are automatic or readily accessible (citation).

xv See Zinermon v. Burch, 494 U.S. 113 (1990) (holding that because someone who is a voluntary patient is usually not permitted to leave whenever s/he chooses, the hospital was required to insure that the person understood the nature of a voluntary admission. MHA supports the greater use of “informal” admission procedures adopted by some states. See, e.g., 405 ILCS 5/3-300. Such procedures give persons in psychiatric hospitals the same right to leave as anyone admitted to a non-psychiatric hospital.

xvi A related and significant cause of this failure is that persons hospitalized, voluntarily and involuntarily are frequently discharged before they have recovered and before community services can be arranged.

xvii Hancock, et al., “Peer-worker Supported Transition from Hospital to Home—Outcomes for Service Users” Int J Environ Res Public Health. 2022 Mar; 19(5): 2743. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8910236/ 

xviii A disturbing account of the mistreatment of African-Americans in psychiatric hospitals may be found in Hylton, Madness: Race and Insanity in a Jim Crow Hospital (Legacy, 2024)

xix Garam et. al., “A Naturalistic Study of Racial Disparities in Diagnoses at an Outpatient Behavioral Health Clinic,” 70 Psych. Services 130-134 (Feb. 2019), https://ps.psychiatryonline.org/doi/10.1176/appi.ps.201800223; Strakowski, et al., “Ethnicity and Diagnosis in Patients with Affective Disoreders” J. Clinic. Psych. (July 15, 2003), https://www.psychiatrist.com/jcp/ethnicity-diagnosis-patients-affective-disorders/; Bell, et al., “Misdiagnosis of African-Americans with Psychiatric Issues—Part I, 107 J. Nat. Med. Assoc. 25-34 (Summer, 2015) https://www.sciencedirect.com/science/article/abs/pii/S0027968415300481 Bell, et al.; “Misdiagnosis of African-Americans with Psychiatric Issues—Part II,” 107 J. Nat. Med. Assoc. 35-41 (Summer, 2015) https://www.sciencedirect.com/science/article/abs/pii/S0027968415300493.

xx Bolden & Wicks, “Length of Stay, Admission Types, Psychiatric Diagnosis, and the Implications of Stigma in African Americans in the Nationwide Inpatient Sample,” 26 Issues in Mental Health Nursing 1043-59 (2009) https://www.tandfonline.com/doi/abs/10.1080/01612840500280703 

xxi Rodriquez-Roldan, “The Racially Disparate Impacts of Coercive Outpatient Mental Health Treatment: The Case of Assisted Outpatient Treatment in New York State” 13 Drexel L. Rev. 945 (2021) https://media.wbur.org/wp/2023/03/THE-RACIALLY-DISPARATE-IMPACTS-OF-COERCIVE-OUTPATIENT-MENTAL-HEALTH-TREATMENT-THE-CASE-OF-ASSISTED-O.pdf 

xxii See MHA Position Statement: “Psychiatric Advance Directives” https://www.mhanational.org/issues/psychiatric-advance-directives