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                     Psychiatric Involuntary Treatment:
                 Developments in Mental Hygiene Law in 1993

                 by Paul F. Stavis, Counsel to the Commission

   Line

   1993 produced new developments in mental hygiene law both by federal
   and state courts, as well as some new research by clinicians
   concerning the wisdom of court review of patient objection to
   psychotropic medication. This column will discuss these developments.

                    Involuntary Commitment and Treatment

   There are not many issues in the field of mental hygiene law which
   raise more controversy than that of involuntary commitment and
   treatment. The courts have unequivocally recognized that involuntary
   treatment by the government is a substantial deprivation of liberty,
   and therefore falls under the aegis of the Four{*filter*}th Amendment of the
   U.S. Constitution as well as similar clauses of the constitutions of
   various states.(1)

   Since the 1960's, there has been a clear trend towards increasing the
   quantity and quality of due process which must attend involuntary
   treatments. In many decisions of federal and state courts, "due
   process" has been held to include the right to confront the state's
   psychiatrists to require a heightened standard of proof ("clear and
   convincing evidence"); assistance of counsel; jury trial; the right to
   appeal, etc.(2)

   In regard to involuntary commitment there were two developments by
   caselaw in 1993 which will affect the psychiatric patients under the
   current laws of New York State--one decision from the U.S. Supreme
   Court and the other decision by New York State's highest court, the
   Court of Appeals.

                              Heller v. Doe(3)

   The Supreme Court struggled to a five to four vote in a Kentucky case
   involving statutes which provided two different standards of civil
   commitment, one for persons with mental retardation and another for
   persons with mental illness. To civilly commit a person with mental
   illness, the state of Kentucky would be required to show "beyond a
   reasonable doubt" (the highest standard of proof known to law and that
   which is routinely used in criminal cases) that there exists a danger
   to self or others, that treatment would be beneficial and would be the
   least restrictive treatment available.

   However, for a person with mental retardation, the state statute would
   apply a lesser standard of proof (i.e., it would be easier for the
   state to prove) called "clear and convincing" evidence. In addition,
   the statute made another significant distinction. An option was given
   to a family member and/or guardian of the person with mental
   retardation to participate in the court hearing, but did not give such
   a similar right in a commitment hearing for the family or guardian of
   a person with mental illness.

   The constitutional issue presented to the Supreme Court was whether
   this violated the "equal protection" clause of the Four{*filter*}th
   Amendment because it treated persons with mental disability
   differently for purposes of civil commitment. It has long been settled
   law under the Equal Protection Clause that persons may be treated
   differently if there is a rational reason for doing so. The majority
   opinion of the Court (written by Mr. Justice Kennedy) found three
   rational reasons that justified the Kentucky's dual standards: (1)
   mental retardation is easier to diagnose than mental illness and is
   less likely to be misdiagnosed (i.e., there is less chance of error by
   the state's decision makers so the state need not be held to a more
   difficult standard of proof); (2) mental retardation is less likely to
   change or change dramatically, is usually well documented in
   childhood, and dangerous behaviors are more predictable; and (3) the
   treatment for mental retardation is usually less intrusive than that
   for mental illness, because the latter involves probing into a
   person's innermost thoughts.

   In terms of the differences in the participation of family members or
   guardians in the judicial hearing, the Supreme Court found that the
   participation of family members or guardians as a matter of legal
   right for a person with mental retardation made rational sense because
   such persons were more than likely involved with that person from
   childhood and beyond, and more importantly could likely provide the
   trial court with valuable information. In contrast, the family of a
   person with mental illness was not as likely to be involved with his
   or her treatment and condition, nor as often to possess relevant
   information that would be useful to the trial court.

   Four of the nine justices dissented. One of the most important points
   made in the dissents was that the majority opinion analyzed the case
   solely from the point of view of the state, its interests and its
   burdens of proof. Rather, the dissent argued that the case should be
   looked at from the point of view of the person with mental disability
   who is facing commitment. From that person's point of view, the
   interest to remain free of state control and involuntary treatment was
   equally strong and compelling no matter what mental disability was
   involved and no matter how invasive the treatment involved. In short,
   both a person with mental illness and a person with mental retardation
   have a right to be free of government intrusion into their lives;
   neither person's freedom should be valued over the other's.

   While this case may have many ramifications, its principal one is that
   disparate treatment among mental disabilities might be justifiable and
   does not violate the Equal Protection Clause as long as it has a
   rational relationship to legitimate state purposes or interests.

           The Committing Court's Role in Prescribing Treatment:
                            Matter of Chenier(4)

   This case involved a judicial hearing for the civil commitment of a
   person with mental illness who was previously admitted as a voluntary
   patient and now wanted to be discharged, but who the facility thought
   was in need of further care and treatment as an involuntary patient.
   After a hearing, the committing judge agreed with the state on the
   need for further treatment, but conditioned his order of involuntary
   commitment upon two things: (1) that the psychiatric facility assign a
   different psychiatrist than the one assigned; and (2) that the patient
   reside on an "open ward" rather than a more restrictive setting such
   as a locked ward. Without much discussion the state's highest court,
   the NY Court of Appeals, held that pursuant to a New York commitment
   statute:(5) "the [committing] court did not have the power to impose
   the treatment related conditions as part of its retention order." The
   court also implied by the citations of two of its precedents, that the
   courts of New York do not have the authority to oversee "wisdom of the
   medical policy underlying the treatment"(6) of psychiatric patients,
   but rather may only seek to enforce specific statutory rights. Since
   there is no statutory provision permitting a court to dictate the
   condition of treatment pursuant to a retention hearing/order, the
   court held it was beyond the court's jurisdiction to do so. Therefore,
   a court may only decide whether a person is suitable to be committed,
   but not what or how treatment is administered by the
   psychiatric/health professionals once admitted to a mental hygiene
   facility.

   Involuntary Treatment with Psychotropic Medication-- A New Empirical Study

   While one of the precedents cited in the Chenier case, Bezio v. NY
   Office of Mental Retardation and Developmental Disabilities,(7) held
   that courts should not generally delve in the "appropriateness of
   treatment" but only on the "suitability" of the patient to be an
   involuntary patient, the other precedent in the Chenier case stood for
   a seemingly contradictory proposition that courts can intervene with
   great specificity for instances of involuntary psychiatric treatment
   with psychotropic medications. The second precedent is the well known
   case of Rivers v. Katz.(8)

   The Rivers case held that a psychiatric patient who, after being
   judicially committed as "being in need of [psychiatric] care and
   treatment, still retains presumptive competency to object to
   psychotropic {*filter*}." Moreover, the court held that a patient's
   objection can only be overcome by a judicial, not a medical,
   determination. Although the use of the word "judicial" by the court is
   ambiguous (i.e., was it meant literally as a court of law as
   established by the state constitution, or was it meant to have generic
   meaning such as a proceeding having the fundamentals of due process
   as, e.g., in an administrative hearing), most courts and

>Huge snip!!!
>"What the study does not look at is comparable populations since it does not

> >Huge snip!!!

> >"What the study does not look at is comparable populations since it does not
>  examine what happened to the patients who were discouraged from
> filing formal objections post-Rivers, or to the refusing patients
> whose cases the lawyers refused to take to court: "

> I'm an English psychiatrist - so we have Mental Health Act 1983 at
> present. With regard to involuntary committment ("sectioning" over
> here). Our patients get free legal representation at review tribunals
> - I'm going to one tomorrow - no jury, but legally a court.

> No-one can take this away from them - sorry, i'm appalled - what is
> the point of a legal right you can't excercise?

> Lazarus