Abstract

http://ssrn.com/abstract=2327579
 


 



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

Abstract:     
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 illness

Accepted Paper Series


Download This Paper

Date posted: September 19, 2013 ; Last revised: November 18, 2013

Suggested Citation

Ward, Cynthia V., Mental Illness and Danger to Self (September 18, 2013). Mental Health Law & Policy Journal, Vol. 3 (2014 Forthcoming); William & Mary Law School Research Paper No. 09-261. Available at SSRN: http://ssrn.com/abstract=2327579 or http://dx.doi.org/10.2139/ssrn.2327579

Contact Information

Cynthia V. Ward (Contact Author)
William and Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
Feedback to SSRN


Paper statistics
Abstract Views: 305
Downloads: 77
Download Rank: 184,929
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.281 seconds