Mental Illness and Danger to Self
Cynthia V. Ward
William and Mary Law School
September 18, 2013
Mental Health Law & Policy Journal, Vol. 3 (2014 Forthcoming)
William & Mary Law School Research Paper No. 09-261
When a court forces an unwilling person into psychiatric treatment, the law deprives that person of two very important rights – the right to refuse medical treatment and (in the case of involuntary hospitalization) the right to liberty itself. In cases where a psychologically disturbed respondent is believed to pose a serious danger to others, the state clearly has a legitimate interest in confining the respondent, and most discussion concerns the issue of dangerousness – how it is defined; how accurately it can be determined; how vulnerable it may be to bias or mistake. In cases involving danger only to the respondent himself, the law more openly wrestles with the values of autonomy and respect for the individual. Should we allow courts to commit a person involuntarily on the ground that he poses a serious risk of harm, not to others but to himself? If so, under what conditions is this permissible against the conceptual backdrop of the person’s presumptive rights to refuse treatment and to retain personal liberty?
Psychiatry and Law have different perspectives, and inherently different roles, on this issue. The contemporary standard for involuntary commitment – requiring both a "mental illness" and "danger to self" – attempts to marry those roles and has succeeded only in confusing the courts, too often causing them to convert what should fundamentally be a legal question about legitimate grounds for overruling individual rights into a psychiatric question about the need for treatment. Reform efforts over the last three decades have not changed this reality. Indeed, today the loudest voices on the issue hail from the mental health profession, arguing that existing legal constraints on involuntary commitment are too stringent and that "legal barriers" should be dismantled so that more patients deemed mentally ill to be forcibly treated. This Article opposes that stance. The standard for involuntary commitment on grounds of danger to self should be completely expressed in non-medical terms and should be adjudicated as a purely legal matter. In making the case for that position, I hope to illuminate a core tension between law and psychiatry.
Number of Pages in PDF File: 54
Keywords: involuntary commitment, dangerousness, law and mental illnessAccepted Paper Series
Date posted: September 19, 2013 ; Last revised: November 18, 2013
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