Many of the state laws underwent substantial revision after the landmark Community Mental Health Centers Act of 1963 enacted under President John F. Kennedy (see Chapter 4) that promoted “de-institutionalization” of the mentally ill. The changes reflect a shift in emphasis from institutional care of the mentally ill to community-based care. There was an increasing awareness of the need to provide the mentally ill with humane care that respects their civil rights. Widespread, progressive use of psychotropic drugs in the treatment of mental illness enabled many patients to integrate more readily into the larger community.

Additionally, the legal system has begun to adopt a more therapeutic approach to persons with substance disorders and mental health disorders. There are now drug courts where the emphasis is more on rehabilitation than punishment (Armstrong, 2008; Schma, Kjervik, Petrucci, & Scott, 2005). Similarly, mental health courts handle criminal charges against the mentally ill by diverting them to community resources to prevent reoffending by, among other things, monitoring medication adherence.

Federal legislation providing parity for the mentally ill with other patients in terms of payments for services from health insurance plans also improves access to treatment. The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act, which went into effect in July 2010, and the Affordable Care Act, also enacted in 2010, provide for insurance funding for mental illness (Bazelton Center for Mental Health Law, 2012).

Civil rights of persons with mental illness

Persons with mental illness are guaranteed the same rights under federal and state laws as any other citizen. Most states specifically prohibit any person from depriving an individual receiving mental health services of his or her civil rights, including but not limited to the following:

• The right to vote

• The right to civil service ranking

• The right to receive, forfeit, or deny a driver’s license

• The right to make purchases and enter contractual relationships (unless the patient has lost legal capacity by being adjudicated incompetent)

• The right to press charges against another person

• The right to humane care and treatment (medical, dental, and psychiatric needs must be met in accordance with the prevailing standards of these professions)

• The right to religious freedom and practice

• The right to social interaction

• The right to exercise and participate in recreational opportunities

Incarcerated persons with mental illness are afforded the same protections.

Admission and discharge procedures

Due process in involuntary admission

The courts have recognized that involuntary admission (refer to Chapter 4) to a psychiatric inpatient setting is a “massive curtailment of liberty” (Humphrey v. Cady, 1972, p. 509), requiring due process protections in the civil commitment procedure. This right derives from the Fifth Amendment of the U.S. Constitution, which states that “no person shall …. be deprived of life, liberty, or property without due process of law.”

The Fourteenth Amendment explicitly prohibits states from depriving citizens of life, liberty, and property without due process of law. State civil commitment statutes, if challenged in the courts on constitutional grounds, must afford minimal due process protections to pass the court’s scrutiny (Zinernon v. Burch, 1990). In most states, a patient can challenge commitments through a writ of habeas corpus, which means a “formal written order” to “free the person.” The writ of habeas corpus is the procedural mechanism used to challenge unlawful detention by the government.

The writ of habeas corpus and the least restrictive alternative doctrine are two of the most important concepts applicable to civic commitment cases. The least restrictive alternative doctrine mandates that the least drastic means be taken to achieve a specific purpose. For example, if someone can be treated safely for depression on an outpatient basis, hospitalization would be too restrictive and unnecessarily disruptive.

VIGNETTE

Elizabeth is a 50-year-old woman with a long history of admissions to psychiatric hospitals. During previous hospitalizations, she was diagnosed with paranoid schizophrenia. She has refused visits from her caseworker and quit taking medication, and her young-adult children have become increasingly concerned about her behavior. When they stop to visit, she is typically unkempt and smells bad, her apartment is filthy and filled with cats, there is no food in the refrigerator except for ketchup and an old container of yogurt, and they see that she is not paying her bills.

Elizabeth accuses her children of spying on her and of being in collusion with the government to get at her secrets of mind control and oil-rationing plans. She is making vague threats to the local officials, claiming that people who have caused the problems need to be “taken care of.” Her daughter contacts her psychiatrist with this information, and a decision is made to begin emergency involuntary admission proceedings.

Long-term involuntary admission.

Long-term involuntary admission has as its primary purpose extended care and treatment of the mentally ill. Those who undergo extended involuntary hospitalization are admitted through medical certification, judicial review, or administrative action. Some states do not require a judicial hearing before involuntary long-term admission but often provide the patient with an opportunity for a judicial review after admission procedures. This type of involuntary hospitalization generally lasts 60 to 180 days, but it may also be for an indeterminate period.

Involuntary outpatient commitment.

Involuntary outpatient commitment arose in the 1990s, when states began to pass legislation that permitted outpatient commitment as an alternative to forced inpatient treatment. More than 40 states now have this type of mandate. Involuntary outpatient commitment can be a preventive measure, allowing a court order before the onset of a psychiatric crisis that would result in an inpatient admission. The order for involuntary outpatient commitment is usually tied to receipt of goods and services provided by social welfare agencies, including disability benefits and housing. To access these goods and services, the patient is mandated to participate in treatment and may face inpatient admission if he or she fails to participate in treatment. Mental Health America (2012), an advocacy group, opposes the use of this type of involuntary treatment based on the belief that it is coercive and may be counterproductive by reducing personal responsibility and lowering self-esteem.

Discharge procedures

Release from hospitalization depends on the patient’s admission status. As previously discussed, voluntarily admitted patients have the right to request and receive release. Some states, however, do provide for conditional release of voluntary patients, which enables the treating physician or administrator to order continued treatment on an outpatient basis if the clinical needs of the patient warrant further care.

Conditional release

Conditional release usually requires outpatient treatment for a specified period to determine the patient’s adherence with medication protocols, ability to meet basic needs, and ability to reintegrate into the community. Generally, a voluntarily admitted patient who is conditionally released can only be involuntarily admitted through the usual methods described above; however, an involuntarily admitted patient who is conditionally released may be reinstitutionalized, although the commitment is still in effect without recommencement of formal admission procedures.

Unconditional release

Unconditional release is the termination of a patient-institution relationship. This release may be court-ordered or administratively ordered by the institution’s officials. Generally, the administrative officer of an institution has the discretion to discharge patients.

Release against medical advice (AMA)

In some cases, there is a disagreement between the mental health care providers and the patient as to whether continued hospitalization is necessary. In cases where treatment seems beneficial but there is no compelling reason (e.g., danger to self or others) to seek an involuntary continuance of stay, patients may be released against medical advice.

Patients’ rights under the law

Psychiatric facilities usually provide patients with a written list of basic rights derived from a variety of sources, especially legislation that came out of the 1960s. Since that time, rights have been modified to some degree, but most lists share commonalities described in the following sections.

Right to treatment

With the enactment of the Hospitalization of the Mentally Ill Act in 1964, the federal statutory right to psychiatric treatment in public hospitals was created. The statute requires that medical and psychiatric care and treatment be provided to all persons admitted to a public hospital.

Although state courts and lower federal courts have decided that there may be a federal constitutional right to treatment, the U.S. Supreme Court has never clearly defined the right to treatment as a constitutional principle. Based on the decisions of a number of early court cases, treatment must meet the following criteria:

• The environment must be humane.

• Staff must be qualified and sufficient to provide adequate treatment.

• The plan of care must be individualized.

The initial cases presenting the psychiatric patient’s right to treatment arose in the criminal justice system. An interesting case regarding the right to treatment is O’Connor v. Donaldson (1975). The court held that a “state cannot constitutionally confine a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends” (O’Connor v. Donaldson, 1975, p. 576). Such court cases provide an interesting history of the evolution and shortcomings of our mental health delivery system and its intersection with the law.

Right to refuse treatment

Just as patients have the right to receive treatment, they also have the right to refuse it. Patients may withhold consent or withdraw consent at any time. Retraction of consent previously given must be honored whether it is a verbal or written retraction; however, the patient’s right to refuse treatment with psychotropic drugs has been debated in the courts, based partly on the issue of patients’ competency to give or withhold consent to treatment and their status under the civil commitment statutes. Early cases—initiated by state hospital patients—considered medical, legal, and ethical considerations such as basic treatment problems, the doctrine of informed consent, and the bioethical principle of autonomy. Tables 6-1 and 6-2 summarize the evolution of two landmark sets of cases regarding the patient’s right to refuse treatment.

TABLE 6-1

RIGHT TO REFUSE TREATMENT: EVOLUTION FROM MASSACHUSETTS CASE LAW TO PRESENT LAW

CASE	COURT	DECISION
Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979)	Federal district court	Ruled that involuntarily hospitalized patients with mental illness are competent and have the right to make treatment decisions. Forcible administration of medication is justified in an emergency if needed to prevent violence and if other alternatives have been ruled out. A guardian may make treatment decisions for an incompetent patient.
Rogers v. Okin, 634 F.2nd 650 (1st Cir. 1980)	Federal court of appeals	Affirmed that involuntarily hospitalized patients with mental illness are competent and have the right to make treatment decisions. The staff has substantial discretion in an emergency. Forcible medication is also justified to prevent the patient’s deterioration. A patient’s rights must be protected by judicial determination of competency or incompetency.
Mills v. Rogers, 457 U.S. 291 (1982)	U.S. Supreme Court	Set aside the judgment of the court of appeals, with instructions to consider the effect of an intervening state court case.
Rogers v. Commissioner of the Department of Mental Health, 458 N.E.2d 308 (Mass. 1983)	Massachusetts Supreme Judicial Court answering questions certified by federal court of appeals	Ruled that involuntarily hospitalized patients are competent and have the right to make treatment decisions unless they are judicially determined to be incompetent.

TABLE 6-2

RIGHT TO REFUSE TREATMENT: EVOLUTION FROM NEW JERSEY CASE LAW TO PRESENT LAW

CASE	COURT	DECISION
Rennie v. Klein, 476 F. Supp. 1292 (D. N.J. 1979)	Federal district court	Ruled that involuntarily hospitalized patients with mental illness have a qualified constitutional right to refuse treatment with antipsychotic drugs. Voluntarily hospitalized patients have an absolute right to refuse treatment with antipsychotic drugs under New Jersey law.
Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981)	Federal court of appeals	Ruled that involuntarily hospitalized patients with mental illness have a constitutional right to refuse antipsychotic drug treatment. The state may override a patient’s right when the patient poses a danger to self or others. Due process protections must be complied with before forcible medication of patients in nonemergency situations.
Rennie v. Klein, 454 U.S. 1078 (1982)	U.S. Supreme Court	Set aside the judgment of the court of appeals, with instructions to consider the case in light of the U.S. Supreme Court decision in Youngberg v. Romeo.
Rennie v. Klein, 720 F.2d 266 (3d Cir. 1983)	Federal court of appeals	Ruled that involuntarily hospitalized patients with mental illness have the right to refuse treatment with antipsychotic medications. Decisions to forcibly medicate must be based on “accepted professional judgment” and must comply with due process requirements of the New Jersey regulations.