PRO-FORMA POLICY ADOPTED BY 66% OF NAMI MEMBERSHIP IN JULY 1995
(Note: This was adopted by the membership, but not the board of directors.
Use it as a starting point for your own policy):
INVOLUNTARY TREATMENT POLICY
Resolved, that the membership of the National
Alliance for the Mentally Ill adopts the following as its policy:
Background: NAMI believes that current involuntary treatment laws and policies
in many places are inadequate in that they:
(1) allow people who may not need involuntary commitment to be committed,
(2) deny some who may need access to involuntary treatment from receiving
In addition, once a decision is made to involuntarily treat someone current
laws and practices often dictate that treatment take place in the most restrictive
setting (i.e. inpatient). NAMI believes the policies outlined below would
cut down on involuntary inpatient hospitalization by allowing individuals
to be treated earlier in their episodes and further, allow them to be treated
in less restrictive, less expensive, more beneficial settings.
Medical Perspective: The human brain is a complex network of cells,
chemicals and matrix which--like other organs--may periodically malfunction.
As a result of modern brain imaging techniques not previously available,
we now know that many disorders formerly thought to be 'mental' disorders
are in fact, neurobiological disorders (NBDs) which often react very favorably
to treatment. Our laws must keep up with these advances in science.
Moral Perspective: The judgement of individuals with NBD ("consumers")
is sometimes affected by the NBD so that they are unable to make the rational
decisions they would otherwise make. This 'lack of insight' may cause them
to reject the very treatments that can help them and/or it may cause them
to act 'dangerously'. While this may only happen to a minority of individuals
with NBD, this minority is often the group most in need of treatment. In
addition, the actions of this minority often tar the majority of consumers
who never become 'danger to self or others' and can make communities less
likely to welcome community based facilities that would help everyone. NAMI
believes it is vital to respect the right of individuals with NBD (consumers)
to make their own decisions to the maximum degree that is feasible. But
it is immoral to require that an individual be well enough to ask for or
accept treatment before they are allowed to receive it.
Legal Perspective: Current practice in many states is to require
individuals with NBD to become a "danger to self or others" before
they can be treated for their illness involuntarily. This is often too late.
As a result, there has been a massive migration of individuals with NBDs
from 'mental health' systems to jail and prison systems. In addition, there
are varying interpretations of what constitutes 'dangerousness", which
is only an expression of the state's 'police powers' to protect the welfare
of the citizenry. But the government also has a "parens patriae' obligation
to act on behalf of citizens unable to act in their own best interests.
This 'parens patriae' obligation has historically been used to assist young
children, developmentally disabled, and--until the changes brought about
by the "mental health bar" in the 1970's--individuals with NBD.
A return to the use of parens patriae would provide a useful supplement
to the dangerousness standard.
Financial Perspective: The direct hospital costs attributed to
non-compliance has been estimated to be $700 million dollars over two years
(Weiden, et al). The requirement to spend dollars on inpatient care due
to non-compliance drains funds away from more desirable community based
treatments. If a decision is made to help someone who does not recognize
the need for it, NAMI must address the issue of what form that help should
take to ensure that consumers are allowed to receive the least restrictive,
most beneficial forms of treatment.
1. A client-centered, community based system of care can cut down on the
need for involuntary treatment and commitment. If consumers had voluntary
access to a continuous and comprehensive range of housing, rehab options,
assertive community treatment, respite care, medications, psycho-social
rehab, peer-support and other needed services and treatments, this would
dramatically cut-down on the need for involuntary treatment and commitment.
2. Involuntary commitment and treatment should only be used when it is believed
to be in the best interests of the consumer. NAMI is aware of misuse of
involuntary commitment laws. For example to increase hospital profits, provide
respite for parents, introduce a form of social control, get votes, and
"clean" (sic) up streets for visiting conventioneers. NAMI believes
that involuntary commitment laws should only be used to help the consumer.
All other uses of the law are unacceptable.
3. All the NAMI policies concerning quality of care apply to the fullest
extent possible to consumers who are involuntarily treated. NAMI is aware
of individuals who have been abused and/or improperly treated by programs
and NAMI has adopted extensive policies to help prevent or reduce this.
Persons and institutions who provide treatment must provide it in accordance
with the highest professional and moral standards. Because individuals who
are treated involuntarily have less choice in the matter, NAMI must be extra
diligent in ensuring that these programs treat individuals humanely, compassionately,
and correctly. NAMI will not allow the problems of poor care to be used
as an excuse not to treat individuals. Rather it will work to improve the
quality of care where it is found lacking.
4. An independent administrative and/or judicial review must be guaranteed
in all involuntary treatment determinations. In order to protect the rights
of consumers, some form of independent administrative review or judicial
review by individuals knowledgeable in the the medical issues surrounding
NBD, must take place. This process must take place as quickly as possible
so the consumers ability to exercise his or her right to receive treatment
is not needlessly delayed. If a decision is made to involuntarily commit
or treat is made, it should be periodically reviewed.
5. The current interpretation of 'dangerous' is too uneven, and often too
narrow. The current standard of "dangerousness" is frequently
narrowly interpreted to mean "imminently" and/or "provably"
dangerous to self or others. NAMI is aware of many examples of individuals
who commit suicide and/or harm others immediately after they have been refused
admission to a hospital because they failed to meet this narrow interpretation
of the 'dangerousness' standard. But even the narrow interpretation is under
attack. Organized, government funded groups are working to further narrow
the definition of 'dangerousness' and are using the standard as a weapon
to prevent seriously ill people from being treated.
P&A recently brought class action against Benedictine Hospital in NYS, arguing
that the doctors were committing patients who were not at the moment of
commitment provably, actively dangerous. P&A took the position that committing
patients on the sole grounds they were psychotic and had a history of psychiatric
deterioration when untreated was not permitted by law. The result of such
suits is to make it more and more difficult to treat acutely psychotic people
under the dangerousness standard and to make hospitals and doctors more
reluctant to do so for fear of suits in which "advocates" hold
doctors personally liable.
NAMI believes that the facts (above) point to the need for a broader interpretation
of dangerousness and standards other than dangerousness to be used for involuntary
treatment decisions. The definition of "dangerousness" must be
applied uniformly and allow treatment of individuals before they become
'imminently' or 'provably' dangerous.
6. The definition of 'dangerousness' must be broadened to allow more who
need care to receive it. NAMI believes that 'dangerousness' must be interpreted
more broadly than 'imminently' and/or 'provably'. We must be able to help
someone before they become 'imminently dangerous'. Add a "Substantial
Deterioration" Standard The "Substantial Deterioration" standard
would potentially include for involuntary commitment, someone who "as
a result an NBD, is likely to cause harm to himself or others or to suffer
substantial mental or physical deterioration if he is not given inpatient
or outpatient treatment." NAMI recognizes that creating a better definition
of 'dangerousness' will not mean there are automatically facilities to care
for all those needing treatment. But the constricted standard means that
even when treatment facilities are available, the care cannot be provided.
7. Government has a parens patriae obligation, in addition to police power
obligation, to provide care for individuals with NBD. Individuals with NBD,
when acutely ill, can be among the most vulnerable members of society. They
can be imprisoned by their psychosis and unable to make the decisions they
would otherwise want to make. NAMI believes that, like with children and
the developmentally disabled, the state has an obligation to exercise its
parens patriae powers and step in and assist those "who as a result
of their NBD are unable to fully understand the treatment being proposed
and it's likely courses and outcomes or provide for their own welfare."
A. Add a "Grave Disability" Standard. The "grave disability"
standard would allow the treatment of a person with NBD who is "substantially
unable, except for reasons of indigence, to provide for any of the person's
basic needs, such as food, clothing, shelter, health or safety causing a
substantial deterioration of the person's ability to function on on the
person's own" . B. Add a "Lack of Capacity" Standard The
"lack of capacity" standard would allow the treatment of someone
"who as a result of the mental disorder is unable to fully understand
and to make an informed decision regarding his need for treatment or care
8. The questions of commitment and treatment should be decided expeditiously
in a single hearing at the time of commitment. In many states individuals
receive one court or administrative hearing on whether or not they are 'dangerous'
and should be involuntarily hospitalized and, in cases where they resist
treatment, a second hearing on whether or not they should be involuntarily
treated. These hearings often occur weeks apart resulting in the ludicrous
and cruel proposition of having someone hospitalized but not allowed to
be given treatment. Collapsing the determinations of commitment and treatment
into a single hearing at time of commitment would prevent consumers from
being warehoused unnecessarily, sometimes for weeks without treatment and
will also allow advanced directives to become operational at an earlier
time. It will allow the consumer to get on the road to recovery faster.
The treatment determination should authorize certain categories of treatment
(ex. medicines, drug counseling), but be flexible enough to allow adjustable
client-centered treatment. Wherever possible, and not contra-indicated,
the family, in addition to the consumer, should be brought in to help make
the substitute treatment decisions for the individual.
9. Past activity should be considered in determining future course of illness.
Medical science has shown that past activity and historical progression
of the illness are the best predictors of future activity and progression
of the illness. Many consumers exhibit predictable stages of deterioration.
Yet courts often rule this evidence of past progression of the illness is
inadmissable, under the "one punch" or "single shot"
rule. (This rule provides that jurors should not know the past history of
defendants based on the premise that what they did in the past has no bearing
on the crime in question.) NAMI believes the consumer's history must be
one of the factors considered in commitment and right to refuse treatment
procedures. NAMI believes that consumers, families, providers, doctors and
other interested individuals must be allowed to submit this information
to the current doctors and courts for their consideration.
10. Allow involuntary outpatient treatment. Right now, in many states, when
the court finds that an individual is 'dangerous to self or others' and
needs involuntary treatment, it can only do one thing: order the most expensive
and most restrictive form of treatment: inpatient hospitalization. Legislative
enactment of the concept of involuntary outpatient treatment would make
it possible to offer a less restrictive, less expensive, more beneficial
alternative for individuals with NBD. It would cut down on the need for
inpatient hospitalization. Individuals with NBD and a history of 'dangerousness'
would be allowed to live in the community by court order only if they agreed
to take the medicines and/or follow the treatment plans that can control
the illness (much like we do with TB patients). Individuals who fail to
comply with the outpatient commitment order could be medicated immediately,
despite their objection (no hearing would be required) or they could be
hospitalized involuntarily . The ability of judges or independent administrative
bodies to order outpatient treatment would provide communities with the
incentive (and obligation) to develop appropriate treatment facilities.
NAMI rejects the argument that the lack of facilities makes outpatient treatment
11 . The state should not have to meet standards and meet burdens of proof
that were established for criminals. In many states an officer can not transport
someone to a hospital for observation and/or evaluation unless the officer
has "probable cause" to believe that an individual needs evaluation.
"Probable cause" is frequently interpreted to mean that the officer
must actually observe overtly dangerous behavior. NAMI believes that this
standard (which may be appropriate in criminal matters) is inappropriate
when deciding whether or not to transport someone for evaluation. Therefore
NAMI believes an officer should be able to transport someone if they have
"information and belief" or "probable cause" to believe
that someone may need transportation for observation, evaluation and/or
treatment. "Information and belief" often takes into consideration
information from a reputable observer, such as a caring family member as
well as past history. Once an officer makes a determination to transport
someone, the administrative and/or judicial review process often precludes
commitment unless it is proven "beyond a reasonable doubt" that
the individual meets involuntary treatment criteria. This standard is simply
too difficult to meet. The court should be able to order treatment if it
has "clear and convincing" evidence indicating the individual
meets commitment criteria. While NAMI recognizes that allowing court ordered
treatment based on a "preponderance of evidence" would require
the Supreme Court to overturn Addington v. Texas, NAMI believes a study
should be made on this to determine it's potential effect. Lowering the
burden of proof in this way would ensure that more people who need care
12. Include mechanism and funding for judicial education There is a great
deal of deviation between how different judges interpret the same law. In
addition, when the law changes, many judges proceed as if the law did not
change. For these reasons, any bill dealing with involuntary treatment or
commitment should include a mechanism to inform the judiciary of the change
in law and the implications of it.
13. Public and private health care plans must cover involuntary treatment.
Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally
Ill by Rael Jean Isaac & Virginia Armat. (Must Read)
Nowhere to Go: The Tragic Odyssey of the Homeless Mentally Ill by Dr. E.
Fuller Torrey (Very good)
Rude Awakenings: What the Homeless Crisis Tells Us, by Richard W. White
Out of Bedlam: The Truth about Deinstitutionalization, by Ann Braden Johnson.
Outcasts on Main Street: Report of the Federal Task Force on Homelessness
and Severe Mental Illnesses.
Criminalizing the Seriously Mentally Ill: The abuse of Jails as Mental Hospitals,
by Dr. E. Fuller Torrey, etc.
Innovations and Research, Volume 2, Number 1, Winter 1993 focusing on Mental
Illness and the Law.
Hospital and Community Psychiatry Vol.45. No7. Special issue on Violent
Behavior and Mental Illness American Psychiatric Association Statement of
the Insanity Defense. American Psychiatric Statement Task Force on Homelessness.
Texas Criminal Procedure and the Offender with Mental Illness by Brian D.
Through the Maze: A guide to poroposed changes to Ontario's Mental Health
Laws and Their Consequences for people with Schizophrenia by Ontario Friends
Reports, documents, articles Uncivil Liberties by Herschel Hardon (included)
Cost of Relapse in Schizophrenia by Dr. Peter Weiden and Dr. Mark Olfson
(Schizophrenia Bulletin 1995) (Excellent)
Taking Harm Seriously: Involuntary Mental Patients and the Right To Refuse
Treatment by Samuel Jan Brakel, J.D. and John M. Davis, M.D. Indiana Law
Review (EXCELLENT) *
Subverting good intentions: A Brief History of Mental Health Law "Reform"
by Samuel Jan Brakel. Cornell Journal of Law
Reassessing the Premises Underlying Mental Health Law. by Rael Jean Isaac.
How to reduce violence and stigma, by D.J. Jaffe,
Innovations and Research. A Better Dangerousness standard is needed by D.J.
Psychiatric News Violent Behavior by Individuals with Severe Mental Illnesses
by Dr. E. Fuller Torrey. Hospital and Community Psychiatry.
A National Survey on the Use of Outpatient Commitment by Dr. E. Fuller Torrey
and Robert J. Kaplan, Esq., Hospital and Community Psychiatry (In press)
Involuntary Civil Commitment in the 90's: A Constitutional Perspective by
John Parry, Mental Policy Disability Law Reporter
The North Carolina Experience with Outpatient Commitment: A critical Appraisal
by Virginia Aldige Hiday, etc., International Journal of Law and Psychiatry:
The Relationship between Acute Psychiatric Symptoms, Diagnosis, and short
term risk of violence by Dale McNiel, etc. , Hospital and Community Psychiatry
Homicidal Behaviors among psychiatric outpatients, by Dr. Gregory M. Asnis,
etc. , Hospital and Community Psychiatry
Chapter 5 from Violence and Mental Disorder edited by John Monahan and Henry
Mental Disorder, Substance Abuse, and Community Violence: An Epidemiological
Approach by Jeffrey W. Swanson.
Clinical Review Panels Versus Court Hearings in Treatment Refusal by Involuntary
Patients by Daniel D. Storch, M.D., Hospital and Community Psychiatry
Involuntary Administration of Medication in the Community: The Judicial
Opportunity by Marilyn J. Schmidt, J.D. etc. Bulletin of American Academy
of Psychiatry Law
Involuntary Outpatient Commitment in Arizona: A retrospective study, Hospital
and Community Psychiatry. Critiquing the Empirical Evidence:
Does Involuntary Outpatient Commitment Work? by Kathleen A. Maloy, Report
by Mental Health Policy Resource Center (Note: this is a widely quoted report
that is actually a political, not scientific document).
Proceedings of Roundtable Discussion on the Use of Involuntary Interventions.
Unpublished (?) Report by Center for Mental Health Services Oct. 1992.
Mental Disorder and Violent Behavior by John Monahan, American Psychologist
On being Committed to Treatment in the Community by Jeffrey L. Geller, M.D.,
Innovations and Research Awareness of Illness in Schizophrenia and Schizoaffective
and Mood Disorders by Dr. Xavier Avador, etc., Archive of General Psychiatry,
Oct. 1994. (Very Good)
Awareness of Illness in Schizophrenia by Dr. Xavier Amador, etc. , Schizophrenia
Assessement of Insight in Psychosis by Dr. Xavier Amador, etc, American
Journal of Psychiatry, June 1993
Poor Insight in Schizophrenia, Xavier Amador, etc., Psychiatric Quarterly,
Cost of Relapse in Schizophrenia, by Dr. Peter Weiden. Schizophrenia Bulletin
(In press) (Very Useful)
Conservatorship for Gravely Disabled Psychiatric Patients: A four year follow
up study, by Richard Lamb, M.D., etc., American Journal of Psychiatry
Involuntary Outpatient Commitment: An exploration of the issues and it's
utilization in five states, by Janet S. Owens., Report to NIMH.
Would they be better off in a home by Laurence Schiff. , National Review
Suicide Lawsuit Settled. Dr. Thomas Szasz agrees to pay the widow of a former
patient who killed himself, Syracuse News
Hospitals Liable for Actions by Ex-patients judge rules. New York Times
Not popular by reason of Insanity by Bruce Bower. Science News:
Treatment against their will: More states are making it easier to force
mentally ill into hospitals by Elizabeth Shogren, LA Times, August 18, 1994.
Zinermon vs. Burch, a Supreme Court Decision undercuts voluntary care by
Rael Jean Isaac NAMI Legal Alliance Newsletter
Washington, etc. vs Walter Harper. Supreme Court Decision Taking the suspected
mentally ill off the streets to public general hospitals, by Dr. Luis Marcos,
NE Journal of Medicine Psychiatric
Involuntary Treatment: Developments in Mental Hygiene Law in 1993 by Paul
Stavis, Esq., NYS Commission on Quality of Care Newsletter Synthetic Sanity,
NAMI Legal Letter.
A changed Commitment Law: Effect on Hospitals, Georgia AMI Article: Coping
with a violent or aggressive Schizophrenic patient by Susan Rotenberg.
Mental Illness and the Law by Dr. Keith Pearce Law SB43, New Hampshire AMI
Newsletter Wisconsin Involuntary Treatment Law. (Wisconsin AMI) Wisconsin
Guardianship Law. (Wisconsin AMI) PL 596 An Act to Amend the Laws Regarding
Protective Custody, AMI of Maine Newsletter Texas Consent to Treatment Form(TEXAMI)
Mental Health Commitment in Iowa (Iowa AMI)
Why our laws need change by Rael Jean Isaac, Wall St. Journal NY Considers
Easing Rules for Committing the mentally ill Lisa Foderaro, NY Times. End
For more info, contact DJ Jaffe, c/o AMI/FAMI, 432 Park Ave South, NY NY
10016. 212 684-3264. firstname.lastname@example.org