Initially it should be noted that a commitment of any kind cannot be ordered unless specific commitment criteria are met. There are three basic criteria used in almost all states for civil commitment, and a showing of one of the three is usually sufficient to support a commitment order.

The three common criteria are:
  • the person is a danger to other people;
  • the person is a danger to himself (generally meaning a suicide risk);
  • or the person is unable to provide for his basic needs, such as food, clothing and shelter.

In most of the states that allow outpatient commitment, the criteria for all forms of commitment are the same. This means that outpatient commitment is a treatment-placement decision made by the committing judge after a judicial determination that the commitment criteria are met. Therefore, at least in theory, it is neither easier nor more difficult to get an outpatient commitment order than an order for inpatient commitment. Likewise, there is logically no reason to suspect that the availability of outpatient commitment as a placement option has lead to an increase in commitments.

There are four distinct forms of compulsory outpatient treatment that functionally amount to outpatient commitment. The first is initial commitment to outpatient treatment, outpatient commitment in its purest form. An initial commitment to outpatient treatment is a commitment order directing a person to receive prescribed treatment at a community mental health center or other community outpatient setting. There is no required period of hospitalization that precedes the outpatient treatment with an initial outpatient commitment; instead, the commitment is directly to the outpatient treatment program.

The second form of outpatient commitment is conditional release, which is the release of a committed inpatient from the hospital to community treatment before the expiration of the underlying commitment order. Conditional release is almost always at the discretion of the director of the inpatient hospital and is frequently on the condition that the patient receive outpatient treatment. Conditional release is different from initial outpatient commitment in two significant respects. First, where initial outpatient commitment is a treatment-placement decision ordered by the presiding judge as an alternative to hospitalization, conditional release is usually only available at the discretion of the hospital director. This means that in the case of an inpatient commitment, outpatient treatment is not guaranteed and will only be available where the director of the inpatient hospital finds outpatient treatment appropriate.

The third common form of outpatient commitment is a combination order, which combines elements of initial outpatient commitment and conditional release. A combination order is a commitment order that specifies both periods of hospitalization and involuntary outpatient treatment within the same order. It is similar to a conditional release in that there is generally an initial period of hospitalization followed by a period of involuntary outpatient treatment. Unlike conditional release, though, involuntary outpatient treatment is mandatory under a combination order, and the director of the inpatient facility does not have discretion to deny it. In at least one state, a combination order can provide for specified periods of hospitalization, conditional release, and outpatient commitment.

The fourth variety of outpatient commitment is a stay of the commitment preceding pending voluntary treatment. This procedure really amounts to coerced voluntary outpatient treatment. In a few states, a commitment preceding can be suspended for a specified period of time on the condition that the subject of the preceding agrees to receive voluntary outpatient treatment. If the patient complies fully with the required outpatient treatment during the stay of the proceeding, the petition for commitment is dismissed. If the patient fails to comply with the outpatient treatment, the proceeding is reconvened and a commitment order is generally issued. The advantage of this procedure over an outpatient commitment is that the compulsory treatment is available without a determination that the criteria for commitment have been met.

Several states use guardianship provisions to achieve an outpatient commitment-like result. In these states, a guardian is appointed who has the authority to make substituted treatment decisions for the mentally ill person. The guardian can give surrogate consent for the mentally ill person to receive outpatient treatment,; and if the person doesn't follow through with the treatment, the guardian can consent for the person to be admitted to an inpatient facility. This is very different from civil commitment. Civil commitment is a non-consensual procedure, whereas the guardianship laws require consent, even if it is given by a third person. Although the end result of these guardianship provisions is much like that of an outpatient commitment, guardianship laws function outside the conceptual confines of commitment law.

Currently, there are forty-eight states that theoretically provide for at least one of the forms of outpatient commitment. Thirty-six states provide for initial outpatient commitment, and forty-one states have a conditional-release provision in their commitment law. Four states allow combination orders in commitments, and five states provide for the judicial-stay procedure. Twenty-two of the forty-eight states that provide for outpatient commitment actually use it with enough frequency to be considered a realistic alternative to inpatient commitment. Of the thirty-six states that allow initial outpatient commitment, only thirteen reported using it with any frequency. Eighteen of the forty-one states that provide for conditional release use it. It was reported that combination orders were used in each of the states that allowed for them.

The judicial-stay procedure was reported to be used in four of the five states that allow it. Only Massachusetts, Maine, and New Mexico do not allow any form of outpatient commitment. Of those states, Massachusetts and New Mexico both use guardianship provisions to approximate the outpatient commitment result. Therefore, it is presently only in Maine that no form of compulsory treatment is available outside of a hospital. More information on outpatient civil commitment can be obtained by contacting Robert Kaplan in the NAMI office. by Robert J. Kaplan, Esq., NAMI staff attorney

NOTE: I had the distinct pleasure of working with E. Fuller Torrey, M.D., on a nationwide survey of the availability and use of outpatient civil commitment in the United States. The results of this survey will appear in an article we hope to publish in Hospital and Community Psychiatry. In the process of gathering information on outpatient commitment, Dr. Torrey and I surveyed all fifty states and the District of Columbia to determine which states provide for some form of outpatient commitment and which states use their outpatient commitment laws frequently enough that outpatient commitment is a regular part of the commitment process. Although every effort was made to develop an accurate and balanced assessment of outpatient commitment on a state-by-state basis, this was not a scientific survey and it may reflect the biases of those persons who were contacted in each state.




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