ABA Passes Resolution Opposing Broadening Involuntary Commitment Standards to Address Unhoused People with Mental Health Disabilities

Dinerstein discussed the need for the Resolution. In a number of jurisdictions officials have advocated for more aggressive enforcement of existing commitment laws or for statutory changes that will make it easier to commit people with mental health disabilities. These include watering down the definition of “dangerousness”, requiring judicial officers to admit telephone testimony from witnesses, and increasing the categories of individuals (e.g., bystanders) who can initiate a process leading to commitment.

Dinerstein clarified that the Resolution does not call for abolition of involuntary commitment or for statutory changes to make it more difficult. Rather, the Resolution merely seeks to prevent statutory changes and executive branch practices that would make it easier to commit people involuntarily rather than using less restrictive forms of intervention. American society is based on the importance of autonomy, personal liberty, and self-determination. People with mental health disabilities are fully entitled to these rights. They may make choices that we do not support.  Their life situations may be far from optimal. But the answer is not to override these rights.

Dinerstein discussed the case law on involuntary commitment. Over 50 years ago, the Supreme Court in Humphrey v. Cody recognized that involuntary civil commitment of people with mental health disabilities is a massive curtailment of liberty. Almost 50 years ago, in O’Connor v. Donaldson the Court held that the government must establish that to be committed the individual must be dangerous and incapable of surviving outside of an institution. Forty-five years ago, the Court in Addington v. Texas held that the burden on the state is the heightened standard of clear and convincing evidence. And 25 years ago this year, the Court held in Olmstead v. L.C. that unjustified segregation of disabled individuals constitutes discrimination in violation of Title II of the Americans with Disabilities Act’s integration mandate. Public entities must provide community-based services in certain circumstances.

These developments follow on a long history of forced institutionalization and segregation of people with mental disabilities, based on statutes that simply required that the person be mentally ill and in need of care or treatment. We at the Commission do not want to go back to the days of institutions when people were abused and neglected and at best received custodial care and not treatment—and, more often, not even that. Dinerstein asserted that even if one were not concerned about overuse of involuntary civil commitment on due process or statutory grounds, expanded use of involuntary civil commitment is not effective.  Individuals can be taken off the street temporarily, but there are not enough psychiatric hospital beds to serve them. People are released back on to the streets in a very short time.

Two delegates spoke in opposition to the Resolution. They argued that people with severe mental illness needed to be involuntarily committed because their illness makes them unable to decide whether to seek treatment voluntarily.  They urged that the issue required additional study.

Lewis Bossing responded to the opponents’ arguments. He addressed the harmful effects of involuntary commitment. Coercion through a court order undermines therapeutic relationships, and long-term recovery. Reliance on forced treatment may confirm false stereotypes about people with mental disabilities being inherently dangerous—even though available evidence shows that people with mental health conditions are far more likely to be the victims of violence than the perpetrators of it. And the experience of being forced to be treated—historically, an experience that involves some degree of physical restraint—is traumatizing and humiliating, often exacerbating a person’s mental health condition. For far too many people, and in particular Black and brown communities, the use of force to effectuate treatment has resulted in physical injury, or even death.

Bossing then discussed how access to safe and affordable housing and voluntary community-based supports and services have been shown to be effective in supporting people with mental health disabilities and avoiding the need for involuntary treatment.  In too many cases, the assumption that people with mental health disabilities are too sick to know they need care is based on stereotypes about these individuals, and reflects a failure to listen to them, and to engage them in identifying what services they think would be of value in their lives and would meet their needs. He pointed to research indicating that effective engagement of people with mental health conditions in public spaces, including by people with lived experience with homelessness working as peer specialists, helps individuals see the value and agree to participate in supportive services. Safe, stable, and affordable housing has been shown to lead to housing stability, improve mental health symptoms, reduce hospitalization and law enforcement involvement, and increase satisfaction with one’s quality of life. And voluntary community-based services, such as assertive community treatment (ACT), supported employment, crisis services, and peer support services—delivered not in the hospital, but in the person’s own home and community—have been proven effective at preventing the crises that prompt involuntary commitment orders. 

All these evidence-based practices can be provided flexibly in ways that accommodate each person’s individualized needs, Bossing explained. They are services that when delivered with empathy, alliance, and positive regard make recovery more likely to be successful without resort to involuntary treatment.  Through this approach, governments can respect individual autonomy and liberty and reduce the use of involuntary commitment, such that broadening the reach of civil commitment laws is unnecessary.