(Note: This was adopted by the membership, but not the board of directors. Use it as a starting point for your own 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, and
(2) deny some who may need access to involuntary treatment from receiving it.

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 and supervision."

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 unworkable.

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 receive it.

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.

Partial Bibliography


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 Jr.

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. Shannon. (TEXAMI)

Through the Maze: A guide to poroposed changes to Ontario's Mental Health Laws and Their Consequences for people with Schizophrenia by Ontario Friends of Schizophrenics.

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. Jaffe,

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 Steadman:

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 Bulletin, 1991

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, Winter 1993.

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 of article.

For more info, contact DJ Jaffe, c/o AMI/FAMI, 432 Park Ave South, NY NY 10016. 212 684-3264.