The legal basis for and ability to commit someone has changed dramatically over the last few hundred years in the United States. Here is a brief history of institutionalization in Washington State and context for some of the massive racial disparities that exist in the civil commitment system.
What is civil commitment?Civil commitment is the legal process by which a person is confined within a medical facility or psychiatric hospital, against their wishes, on the basis of a mental health disorder.
While the right to make personal treatment decisions is a fundamental principle of health care law, when individuals are unable to make rational decisions and care for themselves, the state can step in and act in the best interests of the individual.
This ability is based in the legal doctrine of “parens patrae,” meaning parent of the country. Under this paternalistic model, psychiatrists and doctors were the primary decision makers on whether someone needed to be committed for mental health treatment.
How does civil commitment work?Under the Involuntary Treatment Act (ITA) in Washington State, a person may be involuntarily committed if 1) they are likely to pose a serious harm to themselves or others or if 2) they are in imminent danger from a grave disability.
The length of time a person may be detained depends on the level of evaluation they receive. A person may be detained for an initial 120-hour emergency detention, which could then be extended into a 14-day intensive treatment program, which is subject to a probable cause hearing in front of a Superior Court judge. During these 14 days, facility staff or the designated crisis responder may petition to keep the individual committed for an additional 90 or 180 days.
If this petition is filed, the individual being held is entitled to a jury trial which would examine whether the extended involuntary detention is appropriate. After a person is committed for 180 days, staff can continue to file 180-day petitions to keep the individual committed.
How has civil commitment changed over time in the United States?Civil commitment in the U.S. has changed dramatically over the last few hundred years. President John F. Kennedy kicked off an era of deinstitutionalization in the 1960s with the signing of the Community Mental Health Centers Act, which closed most psychiatric hospitals in the U.S. This change was supposed to be accompanied by investments in community-based, less restrictive alternatives, which unfortunately never happened.
Before the closure of most of these government-run hospitals, psychiatrists would make the decision on whether to institutionalize someone based on whether they would benefit from treatment. The focus was primarily on the health of the patient. However, these commitments often led to long and serious infringements on a person’s rights as there were very few safeguards in place to protect the patients.
This model changed in the 1960s. Instead of doctors making those decisions with a medical lens, the courts now made the choice using the state’s police powers. Under these powers, the standard changed from whether treatment would work to whether a person was a danger to themselves or others.
Whereas doctors are responsible to patients, police and the courts are, in theory, responsible for the welfare of society.
Under this new standard, emphasizing society over individual needs, a person’s civil liberties and agency could be infringed upon for the greater good. This new “dangerousness” standard fundamentally changed how the civil commitment process worked, and by the end of the 1970s, almost every state had revised its commitment statute to require dangerousness.
How does civil commitment work in Washington?The Involuntary Treatment Act (ITA) was first adopted in Washington in 1973. The original language had robust procedural protections for civil rights and liberties that incorporated the opinions of mental health professionals and had strict time limits. Since 1973, a series of amendments have chipped away at these rights and make it easier for individuals to be committed and harder to be released.
This raises one of the many issues at stake with civil commitment today: By providing states with the legal authorization to involuntarily commit and treat people, individual liberties are at risk of being seriously infringed upon. These include the rights of privacy, association, physical liberty, freedom from unreasonable searches and seizures, and the freedom of speech and belief.
As the ITA was amended and expanded, its focus shifted from protecting personal liberty to committing more people due to a concern for public safety. The original language of the Act said the intent of the ITA was to “end inappropriate, indefinite commitment” and to “provide prompt evaluation and short-term treatment." However, not all commitments were in fact short-term, and the language was updated to instead say “timely and appropriate treatment.” This shift acknowledged the use of the Act to detain individuals for an extended period and left more room for interpretation of what constituted timely treatment. Even further addendums to the Act significantly changed its intent, giving more power to the state under the guise of public safety. A provision naming public safety was added in 1998 and expanded upon in 2015. The 2015 change, known as “Joel’s Law,” allows an individual’s family to directly petition to have them committed, even if a designated crisis responder chooses not to detain a person for evaluation. “Ricky’s Law”, passed in 2016, also expanded the state’s ability to commit individuals by increasingthe scope of involuntary commitment to people suffering from substance use disorders. With these amendments, the original priority of ending inappropriate, indefinite commitment was replaced by a new goal: To "protect the health and safety of persons suffering from mental disorders and to protect public safety through use of the parens patriae and police powers of the state."
The legislature also made changes to make it easier for the state to involuntarily commit individuals. The rules regarding the evaluation of symptoms and behaviors have changed. One provision states that even if a person’s symptoms and behavior are insufficient on their own for civil commitment, they may support a finding of grave disability or likelihood of serious harm, which can lead to civil commitment. Past behavior can also be factored in. For example, if a person has experienced suicidal ideations in the past, this can support a decision of commitment, even if they are not experiencing such thoughts now.
What are the consequences of expanding involuntary commitment?Civil commitment can have substantially detrimental and disruptive effects on not only the life of the person who was committed, but the lives of their families, friends and community members. Many reported losing housing, employment and even custody of their children as a result of ITA detentions.
Massive racial disparities also exist in the civil commitment system. Black, brown and indigenous people continue to be disproportionately impacted by involuntary commitment.
Given the pervasive racial myth that characterizes Black men as violent or dangerous, these disparities are unsurprising. Because the legal standard rests on dangerousness, Black men are particularly vulnerable to being judged as a threat and committed against their will.
- Black people are more likely to be diagnosed with schizophrenia, more likely to be hospitalized, to be confined in hospitals for longer periods of time, and to be physically and chemically restrained while in the hospital.
- Black Americans who react to racism may also be misdiagnosed as paranoid by white physicians who have not experienced victimization by racism.
- Compared with other racial groups, Black Americans are more likely to be involuntarily committed and more likely to be referred to the commitment process by law enforcement.
- In King County, people in the ITA system are disproportionately likely to be Black, American Indian/Alaska Native, Native Hawaiian/Pacific Islander, or multiracial, particularly if they have a history of prior ITA cases.
People experiencing housing instability are also at increased risk of entering the civil commitment system, being detained for longer periods of time, and more likely to return to the ITA system after being released.
Housing instability among people in the ITA system has trended upward since 2014, with people in nearly 31 percent of cases in 2017 experiencing housing instability. This difference is even more dramatic when looking at people with a history of prior commitment cases.
These disproportionalities in the ITA system may result from larger societal disparities in access to health care and other services. Discrimination, social stigma, and geographic and financial barriers may inhibit access to the use of mental health services for people from certain racial and socioeconomic groups.
Over recent decades, courts have begun to recognize and acknowledge the substantial detriments of involuntary commitment, particularly, the infringement on individual liberties. As courts and legislatures look at these systems, we must center the constitutional liberty rights guaranteed to those who stand to lose the most.