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Court decisions in civil commitment
lnternatronal Journalof Prmled in the U.S.A. All
Lawsnd
Psychiatry,
rightsreserved.
Vol. 4, pp. 159-170.
1981 CopyrIght
0160.2527/81/010159-12502.0010 E 1981 Pergamon Press
Ltd
Court Decisions in Civil Commitment Independence or Deference? Virginia AldigC Hiday*
As the civil rights movement has spread into the area of mental health law under the leadership of the mental health advocacy movement, courts and state legislatures have affirmed due process rights for persons alleged to be mentally ill and have limited state commitment power to the mentally ill who are dangerous (Groethe, 1977; McGarry et al, 1978; Ochberg and Brown, 1974). Where the law formerly emphasized medical concerns, that is, obtaining treatment for the mentally ill, it now emphasizes legal concerns, that is, preventing unnecessary deprivation of freedom. I To that end, the law guarantees respondents in involuntary commitment proceedings notice, speedy procedure, counsel, confrontation of witnesses, and regular court review. Prior to the spread of civil libertarian concerns into the mental commitment area, research reported legal procedures for involuntary commitment to be “perfunctory” and “a legal charade” (Cohen, 1966) which merely “rubber stamped” (Shah, 1974) medical recommendations. Most studies described exceedingly brief hearings in which little or no factual evidence was given on which to base a finding of mental illness or danger (Andalman & Chambers, 1974; Cohen, 1966; Hiday, 1977; Litwack, 1974; Stier & Stoebe, 1979; Warren, 1977; Zander, 1976). Despite arguments by prominent psychiatrists (American Psychiatric Association, 1974; Halleck, 1969; Stone, 1975) and other scholars (Cocozza & Steadman; 1976; Ennis & Litwack, 1974) on the inability of psychiatry to predict dangerousness, psychiatrists presented conclusory statements to the court on dangerousness as well as mental illness and the court uncritically and passively followed psychiatric recommendations. Not knowing the basis of psychiatrists’ conclusions about the legal criteria, the court defaulted in its responsibility to *Associate Professor, Department of Sociology and Anthropology, North Carolina State University, P.O. Box 5428, Raleigh, NC 27650, USA. This research was supported by grant #5 ROI MH 30548 from the Center for Studies of Crime and Delinquency, Alcohol, Drug Abuse, and Mental Health Administration of the National Institute of Mental Health. The author wishes to thank the judges, counsel, and clerks who cooperated in making this research possible, and Henry J. Steadman and John Monahan who contributed their ideas for improving an earlier version of this manuscript. ‘In the past year the pendulum may have begun to swing in the opposite direction in some states. Washington has made it easier to involuntarily commit the mentally ill by making more inclusive the statutory definitions of “gravely disabled” and “likelihood of serious harm” (Durham & Pierce, 1980; Weatherly, 1980). In 1979, after our study, North Carolina removed imminent from dangerous as a criterion for commitment; however, many courts are still restricting the definition of dangerous to that which is imminent. 159
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weigh evidence in order to determine mental illness/danger and to consider carefully if a respondent’s alleged harm were of sufficient seriousness and likelihood to justify the state’s removing his liberty (Andalman & Chambers, 1974; Cohen, 1966; Kunter, 1962; Maisel, 1970; Miller & Schwartz, 1966; Scheff, 1964; Wexler & Scoville, 1971). By specifying due process rights and requiring court hearings the new legislation is moving to check perfunctory or no court review. Essentially it is declaring that medical opinion alone is not enough to confine a person to a mental hospital; and thus, it is defining the role of the court to be independent of psychiatry. The court may accept medical recommendation; but to achieve the desired independence from psychiatric expertise, the court must refuse to accept psychiatric conclusory statements without supporting facts. The question is whether now after reform, the civil commitment courts are making independent judgments or are they continuing to defer to psychiatry?29 3 The Setting
This paper presents the results of a study of civil commitment hearings in rural and urban courts in one state, North Carolina, which has satutory reform representative of new legislation attempting to reduce involuntary commitments by insuring due process. Prior to reform (1973), a person could be committed by certification of two physicians, by a clerk at a hearing, or by either a clerk or a single physician in an emergency. Counsel was not provided; the burden of proof was on the respondent; and no court review was provided unless a patient obtained a writ of habeas corpus, a rare occurrence. The North Carolina reformed statute allows the state to commit individuals to mental hospitals on the basis of mental illness or inebriety and imminent danger to self or others.4 The commitment procedure is begun by the petitioner, who may be any citizen, including a law enforcement officer, with knowledge of an individual who is mentally ill or inebriate and imminently dangerous to self or others. Four findings of fact must be made by (1) a magistrate or clerk who receives the petition, (2) a local qualified physician who examines the respondent *somescholarsarguethat it is not deference to psychiatry when judges abrogate their decision making responsibility; but rather it is default to psychiatrists (Ennis & Litwack, 1974; Schulman, 1973; Shah, 1974). Instead of finding fact and making difficult decisions, judges let psychiatrists do the work and then rubberstamp the final psychiatric recommendation. Some civil commitment scholars more harshly criticize judges in contending that judges rubberstamp psychiatric recommendations because they want scientific credence given to decisions to remove from society offensive individuals who violate no criminal law (Albers et al., 1976). ‘Courtroom and legal record studies evaluating the impact of civil commitment reform have already been conducted in several states (Hiday, 1977; Kumasaka et al., 1972; McGarry et al, 1978; Stier & Stoebe, 1979: Warren, 1977, 1979; Zander, 1976). None, however, has attempted to obtain a random sample of cases across an entire state, to record all mention of specific types and dimensions of dangerous behavior given by witnesses in court testimony, and to record counsel’s and judges’ verbal statements to evaluate the independence of civil commitment courts. In general, the earlier studies found that courts continue to defer to psychiatry after reform although deference has been reduced. ‘Although the North Carolina statute establishes a dangerousness standard for involuntary hospitalization, the justification for commitment is based on the state’s parens patriae power as well as its police power. Parens patriae is seen in the statute’s definition of dangerous to self which includes gravely disabled behavior, that is, inability to provide for basic needs of food, clothing and shelter (N.C.C.S. 5 122-58.2 (1) ).
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in his county of residence, (3) a qualified physician at a treatment facility, and finally at the top of the hierarchy, (4) a district court judge at a hearing. Any one of the four may terminate the commitment procedure by a finding of no mental illness or inebriety, or no imminent danger to self or others. The final district court decision is to be based on clear, cogent and convincing (CCC) evidence. Time limitations are placed on each stage of fact finding such that the final finding of fact at the district court must be made within ten days of the individual’s being taken into custody for the local medical examination. The respondent is given notice of hearing and assigned a lawyer by the court if unable to retain private counsel. Witnesses on the petition are summoned to court. Hearings are in the judicial district of hospital unless a respondent requests that his hearing be held in the judicial district of petition when the two districts are not the same. Most respondents are taken to one of four state mental hospitals for custody, observation, evaluation, and treatment prior to hearings. In cases of veterans with benefits, respondents who choose to pay for private hospitalization, and respondents from counties with public psychiatric hospital beds,” VA, private and county hospitals, respectively, are used. Respondents in state mental hospitals are represented by the attorney, who works full time representing all involuntary respondents at their hospital; other indigent respondents are represented by court appointed attorneys or public defenders. Seldom do respondents hire private counsel, even when they can afford it. The Sample Between March and September 1979, we sampled involuntary commitment respondents throughout North Carolina (n = 1,135). Cases of most respondents (8 1.5 To) were decided in courts in the state mental hospitals. Of those outside of state mental hospitals, four-fifths were in counties with regular hearings, all but one of which had in-patient psychiatric facilities for respondents under involuntary commitment proceedings; and one-fifth were in counties where hearings were infrequent and scheduled on an ad hoc basis, generally when a respondent requested a change of venue from a judicial district with a state mental hospital. We attempted to observe all hearings of the latter type which occurred during our observation period, but were unable to do so because of schedule conflicts and distance constraints. Hearings in the former counties and in state mental hospitals were sampled on the basis of convenience and their proportional representation among all civil commitment cases. Of the hearings outside of state mental hospitals, 23.1% were in rural counties, that is, no place greater than or equal to 10,000 population; 25.6% were in urban counties and 51.3% were in SMSAs. The sample of persons against whom civil commitment procedures were brought is not different from the population admitted to state mental hospitals in North Carolina, except in two instances: the proportions of elderly and female ‘Not all counties with public psychiatric hospital beds have state approval to keep respondents of involuntary commitment proceedings and not all counties with such approval choose to keep these respondents. Many counties with public psychiatric hospital beds limit them to voluntary patients or involuntary patients whom they consider to be “manageable” and “not too disruptive.”
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in the sample are greater than those in total admissions (> 65: 16.9% to 7.4%; female: 45.9% to 29.4%). These differences reflect in part the exclusion of minors, who tend to be more heavily male, from the involuntary commitment procedures and thus from our sample. Parents can “voluntarily” admit their minor children to a state mental hospital, even against the children’s wills. Only 13 of our sampled respondents were under 18 years of age. The great majority of persons admitted to the state hospitals did not complete high school (69.4%). Although no education data are available for the sample, other indicators describe the same low socio-economic status. Sample median monthly income is $202 for the 7.4% whose records contain income information; and over two-thirds have a monthly income of $250 or less, with just over 14% reporting no income. Seldom do middle class or upper middle class persons become respondents to involuntary commitment proceedings. Only 11 respondents were recorded with monthly incomes over $500; and of those without income information, only 3.1% could be classified as upper middle class on the basis of speech, dress, education, or occupation of either themselves or their families. The major diagnostic categories of the allegedly mentally ill as stated by psychiatrists on the physician’s affidavit were schizophrenia, general psychosis, and organic brain syndrome (37.2%, 16.4070,and 13.3% respectively). Manicdepression, manic type and depression accounted for approximately 8% each; and paranoia accounted for less than 3%. Only five persons were given no diagnosis or said to be not mentaly ill. Approximately half of the respondents had involuntary procedures brought by a spouse (16.0%) or a child/parent (34.1070).Other relatives accounted for 13.9% of petitioners, local physicians for 17.3%, and law officers for 12.7%. Petitioners were automatically subpoenaed to hearings but often they failed to appear. All persons considered for involuntary commitment were appointed counsel: 12.3% had court appointed attorneys, 3.8% had public defenders, 83.1% had full-time civil commitment lawyers who worked in state mental hospitals; 0.6% chose to be represented by private counsel, and 0.3% (only three persons) were represented by themselves after refusing court appointed counsel. In 87.7% of cases the state and petitioner were represented by a special advocate in the state mental hospital or by the district attorney’s office; but in most cases outside of state hospitals, there was no counsel for state and petitioner, putting the burden on the judge to bring forth evidence of mental illness and imminent danger to self or others. Measurement
Previous studies have used percent court agreement with psychiatric recommendations to indicate deference to psychiatry. Since the court’s main function is to assure that persons not mentally ill and not imminently dangerous are not involuntarily hospitalized, only percent agreement with psychiatric recommendation to commit measures deference. Court agreement with psychiatric commitment recommendations, however, can be misleading. It is possible for the court to have high agreement with such recommendations and yet to make independent decisions. Agreement could arise from independent evaluation of facts which clearly indicate mental illness and imminent danger. To avoid
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dependence on this single potentially misleading measure, we developed four procedural and outcome indicators of deference which we specified prior to the observation period. We applied these indicators to cases of mentally ill respondents for whom psychiatrists recommended commitment and who had initial commitment hearings (n = 454).h Two observers were present in all hearings and independently recorded by means of a checklist the presence of indicators. Notetaking of evidence presented by witnesses and statements and questions of both judges and attorneys supplemented the checklist. The four measures of deference are: 1. Length of hearing: When a hearing lasted less than five minutes, it was taken to represent a lack of consideration of evidence and hence deference to psychiatric opinion. The literature suggests that a hearing of at least five minutes represents a minimurn standard of court independence of psychiatric opinion. Hearings lasting longer than five minutes, however, do not guarantee independent decisions. One study found the average length of civil commitment hearings to be thirteen minutes; yet physician testimony tended to be brief with conclusions unsubstantiated and with counsel never calling witnesses to refute factual evidence or psychiatric opinion (Zander, 1976). 2. Judges questioning of witness(es): When a judge did not question witness(es) to uncover facts supporting mental illness and imminent danger when counsel did not, it was taken to represent deference to psychiatric opinion. This indicator is valid only in that proportion of cases in which the initial presentation of evidence was inadequate; however, initial presentations generally were incomplete. Many witnesses, especially those of the lower class, do not present CCC evidence necessary to show mental illness and imminent danger. They must be questioned to bring forth testimony to ascertain whether or not there is enough basis in fact to commit a respondent. 3. Court’s acceptance of psychiatrist’s conclusory statement with no supporting “facts”: In cases where the hospital psychiatrist testified,‘if psychiatrists were allowed to make conclusory statements that respondents were dangerous without stating the facts on which the conclusions were based, and if the court accepted such statements without other evidence of imminent danger, it was taken to represent deference to psychiatric opinion. Judge Bazelon (1974) argues that such practice is especially dangerous because psychiatric conclusions do “not rest on facts and reasoning which were the product of disciplined investigation. . . . Rather, they were used to cover up the lack of “Alcoholic respondents are excluded because they appear to be treated differently by psychiatry and the courts. They will be analyzed separately in another paper. Recommitment cases, that is cases of those currently involuntarily hospitalized being considered for a commitment extension, are excluded because the great majority of those we observed represent chronic cases of clear dangerousness to self as defined by total inability to care for their basic needs. ‘Court acceptance of written psychiatric conclusions from affidavits without supporting testimony of dangerousness would represent even greater deference or default. Although 90% of psychiatrists’ affidavits contained the legally required documentation of indications of dangerousness, such documentation tended to be cursor!. Moreover, such documentation was frequently based on what psychiatrists read in the petition since most allegedly dangerous behavior occurred in the community prior to examination by a physician, Court acceptance of a psychiatric affidavit without witness testimony of dangerousness would mean accepting a written record of hearsay. Not infrequently, evidence presented in court revealed that the hearsay bases of psychiatric decisions for dangerousness were not true or not valid.
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relevance, knowledge and certainty in the practice of institutional psychiatry - especially in understanding and treating the socially deprived and disadvantaged groups who populate our mental hospitals and penal systems.” 4. Commitment without CCC evidence of imminent danger: When court decision was commitment and there was not a preponderance of evidence of imminent danger to self or others, it was taken to represent deference to psychiatric opinion. This could be the most problematic of all variables because it involves a decision by the observer as to the level of evidence on imminent danger reached by testimony in the courtroom where statutes and practice have established no clear guidelines. To mitigate the effects of the observers’ subjective appraisal of evidence, the standard of mere preponderance of evidence was used since it is a lower standard of proof than clear, cogent, convincing (Wexler, 1981). This lower standard of proof yields a more lenient judgment of court protection of respondents’ civil rights, hence, a conservative estimate of deference to psychiatric opinion. We defined imminent as one of the judges in our pilot study defined it, “likely to happen today, tomorrow, or this week.” We accepted any indication of danger which occurred within the week prior to petition as “likely to happen today, tomorrow, or this week.” We defined evidence for danger to self or others as: (1) physical attacks or attempted attacks to self or others, (2) serious plans or threats of physical attacks to self or others with or without any preparatory motion such as obtaining poison, and not just “threats” made in the heat of argument or thoughts of assault to self or others, (3) unintentional harm such as wandering in front of traffic and not eating/sleeping for a continuous period of time, and (4) physical attacks on property with the potential for total destruction by tearing, burning, or battering such as to remove the ability to provide for basic needs of food, clothing, or shelter. This fourth indicator of deference, although judged by observers, is not entirely a subjective measure. Only imminent and danger, two nonmedical terms, were judged; and the criteria for both of these are specified. The criteria can be disputed precisely because they are specified, unlike the criteria involved in a judge’s decision (unless the judge states his criteria in court). Additionally, the criteria follow federal court decisions and scholarly legal opinion (Lessard v. Schmidt 379 F. Supp. 1376 (E.D. Wis. 1974); Cross v. Harris 418 F. 2d 1095 (1969); Millard v. Harris 406 F. 2d 964 (1968); Brooks, 1974; Developments in the Law, 1974; Postel, 1971). It should be noted that our criteria are more specific than any other. Given specified criteria, it is not subjective to record a witness’s statement of the time of a respondent’s allegedly dangerous act and then to code whether this was within a week prior to petition, or to record a witness’s statement of a respondent’s thrusting a knife into his wife’s ribs and then to code the act as dangerous - physical assault on another. Findings
Table 1 presents the relationship between court decision and final psychiatric recommendation on all initial mentally ill respondents. There is a clear tendency for courts to agree with psychiatric recommendation @ < .OOl); but as stated
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TABLE 1 of Court Decision to Psychiatric
Recommendation
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Release’
%
Recommendation
Alternative
n
%
n
n
Commit
%
n
Court decision Release Alternative Commit Total x2 = 75.16. 4 df, p < .OOl. ‘Includes no recommendation
77.1 4.6 18.3 100.0
(10) (10) ( 3)
45.0 8.4 46.6
(256) ( 48) (265)
( 63)
(20)
43.5 43.5 13.0
(350)
(109)
100.0
(23)
100.0
(569)
(701)
(288)
by psychiatrist.
earlier, this cannot necessarily be taken as deference to psychiatry by courts. The emphasis of statutory reform is to protect the liberty of individuals by keeping involuntary respondents out of mental hospitals when they do not meet the criteria of mental illness and imminent danger. Since treatment by a less restrictive means or release does not involve deprivation of respondents’ liberty, in this paper we investigate the question of deference to psychiatry only in cases of psychiatric recommendation to commit. There are 569 such recommendations representing 81.2% of all initial mentally ill respondents. Did the court act independently of medical opinion in these cases? The courts agreed with less than half of these psychiatric recommendations to commit. By this percentage alone we would have to say that the courts are not deferring to psychiatric opinion; however, this percentage is based on all initial mentally ill respondents (701). Some of these persons had no hearings because psychiatrists released them, they died or ran away before court, or they were willing to go along with involuntary hospitalization and not contest it. Before drawing any conclusions we need to investigate deference as it is manifest to the procedural and other outcome indicators for respondents with hearings. Length of Hearing Only 39.3% of the hearings where the psychiatrist recommended commitment were less than five minutes; and of those that ended in a commitment decision, only 27.6% were less than five minutes. Hearings ranged from one to 52 minutes with the mean being 9.4 minutes (see Table 2). Release decisions took the least amount of time on the average (6.8 minutes); and decisions to allow a less restrictive alternative such as out-patient treatment or voluntary hospitalization took the most time (11.8 minutes). Commitment decisions were in between but almost as long as alternative decisions, taking 11.5 minutes. Average length of hearing for each outcome was thus well above the five minute minimum standard; and those in which the respondent was not released took more than twice as long as the minimum. Judge’s Questioning Witnesses to Uncover Facts Supporting Mental Illness When Counsel Did Not Judges questioned witnesses on specific acts, timing, or circumstnces in 16.5%
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TABLE 2 Indicators of Deference*
Judge’s questioning of witness(es) Neither judge nor counsel questioned Court acceptanceof psychiatrist’s conclusions without supporting facts Commitment without a preponderanceof evidenceof imminent danger *Length
of hearing:
16.5% 47.6% 0.8% 6.8%
x = 9.4 minutes
of the cases when psychiatrists recommended commitment. There was some overlap with counsel’s questioning; but in 47.6% of cases, neither judge, counsel, nor advocate for the state/petitioner questioned any witnesses on specific acts, timing or circumstances. Of those cases which ended in a court decision to commit, neither judge, counsel, nor advocate questioned any witnesses in 33.7%. Courts’ Acceptance of Psychiatric Conclusory Statements Evidence in Cases Where the Psychiatrist Testified
Without Supporting
Psychiatrists did not generally appear in court; but in two towns where the hearings were held at the local in-patient facility, they invariably came to testify; and at one state mental hospital, they were frequently present. In most other cases, psychiatrists appeared only when subpoenaed, and not always then. In our sample, psychiatrists testified in 127 cases. Those who testified stated explicitly that a respondent was dangerous or imminently dangerous in less than half their cases (n = 60). In most of these 60 cases, there was a preponderance of evidence from either the psychiatrists or other witnesses indicating imminent danger (76.6%); therefore, there were only 14 cases without evidence of imminent danger in which a psychiatrist testified and made conclusory statements that the respondent was dangerous. Four of them (28.6%) resulted in commitment without supporting facts. By this measure the court deferred to psychiatry in only 0.8% of cases with a hearing and a psychiatric recommendation to commit, a very small amount of deference indeed! Commitment
Without Evidence of Imminent Danger
Following our definition of imminent danger, we judged the commitment decision by the court to be based on less than a preponderance of evidence of imminent danger in 16 cases (6.8% of all our cases committed). It should be remembered that this estimate represents a conservative judgment of deference to psychiatry because the law requires a higher level of proof (CCC) than what we used. Summary
and Discussion
Although previous studies have found civil commitment courts abrogating their judicial role and deferring to psychiatry, our results from 454 hearings in rural and urban courts of one state with statutory reform indicate that the courts
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are tending to act independently in the decision to commit. Although there was high agreement between psychiatric recommendation and judicial decision, there was little deference to psychiatry by our procedural and outcome measures: (1) length of hearings was longer than the minimum standard; (2) before ordering commitment, judges tended to question witnesses when counsel did not; (3) courts committed respondents on the basis of psychiatric conclusory testimony without supporting facts in less than one percent of the cases; and (4) in less than ten percent of commitments was the basis less than a preponderance of evidence of imminent danger. All of our measures were designed to yield conservative judgments of court deference to psychiatry; and some of our measures were most crude. The minimum standard for length of hearing was low; and measures of judges’ questioning indicated only whether at least one question about specific facts was asked, not whether enough questions were asked to ascertain imminent danger. In making a conservative estimate of civil commitment without CCC evidence of imminent danger, that is of deference to psychiatry, we forced ourselves into a position of being unable to estimate the opposite type of problem. We were unable to judge when there was release with CCC evidence of imminent danger or release without enough evidence to determine whether or not imminent danger existed. By our measure 7.7% of respondents with a preponderance of evidence of imminent danger were released. The court released some of these because the level of proof did not reach clear, cogent and convincing; and released some because it defined imminent as “not dangerous at this moment.” Many respondents who were dangerous the week prior to petition had been under medication since being in custody and were no longer dangerous at the time of hearing. Others were released because the court approved an agreement that the respondent obtain an alternative source of help such as treatment at a community mental health center. In those cases where there was no attorney to represent the petitioner and/or the state, release could be ordered without enough evidence to determine whether or not imminent danger existed. If counsel played an adversary role to prevent evidence of imminent danger from being presented and if the judge did not assume an active role in questioning witnesses to establish imminent danger, no clear, cogent, and convincing evidence of imminent danger would be presented in court even when the behavior of the respondent was actually imminently dangerous. As we could determine from observation and discussion with counsel, release of respondents under these circumstances was rare. Our two outcome measures (commitment on the basis of psychiatric conclusory statements without supporting facts and commitment based on less than a preponderance of evidence of imminent danger), provide strong support that there was little deference to psychiatry. Why do we find little deference, when other studies found much? Writing in the pre-reform days of mental commitment before the civil rights movement spread to mental patients, Thomas Scheff (1964) suggested five conditions which favor independent decisions” based on evidence as opposed to a presumption of illness and an automatic order of com*Scheff
referred
IO independent
decisions based on evidence as “substantive
rationality.”
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mitment: (1) small volume of cases, (2) no assumption that psychiatrists have specialized technical knowledge about mental illness,’ (3) personal acquaintance with respondents or their families, (4) no intense public pressure against releasing patients erroneously, and (5) respondents’ resources for defending against allegations. He found these conditions to hold in rural courts which tended to decide cases on the basis of evidence; and their opposites to hold in urban courts which tended in their decisions to be biased by presuming mental illness. In our study, the first three of Scheffs conditions are unable to explain the courts’ independence: (1) Less than 20% of our cases were heard in courts with a small volume of cases. Nonetheless, there was no significant difference in the proportion of respondents committed without a preponderance of evidence of imminent danger between courts hearing a small number of cases and those hearing a large volume of cases. (2) Most judges and counsel assumed that psychiatrists had specialized technical knowledge of mental illness; and they seldom questioned this knowledge. Even though decisions were to be based on danger and courts could be said to have expertise in dealing with dangerous persons, many counsel and judges expressed discomfort at having to rule on involuntary hospitalization when a psychiatrist had already determined commitment necessary. (3) There was evidence of court officers’ personal acquaintance with respondents and their families in both urban and rural courts; but we did not code this fact during our observations. Although our lack of measurement prevents us from detecting any significant difference in familiarity between rural and urban courts, there was no significant difference between them in the proportion committed without a preponderance of evidence of imminent danger. On the other hand, the urban courts in our sample are in cities at the middle and low end of the urban continuum. As such they still have many of the qualities of small communities including judges’ personal familiarity with a large proportion of community members. The last two of Scheff’s conditions for independence do hold; however, they must be qualified and elaborated. While there were no sensational newspaper reports of erroneously released respondents which would build public pressure to retain respondents erroneously either in the year before or during the course of our study, there was, on the other hand, pressure to avoid erroneous commitment. Besides the emphasis on respondents’ civil liberties in the reform legislation, in scholarly journals, and in federal courts, the North Carolina Court of Appeals overturned a number of commitment decisions on the basis of insufficient evidence of imminent danger. Both urban and rural judges, therefore, had pressure from within the legal system to limit commitment to cases with evidence indicating imminent danger. Several judges mentioned this pressure and/or referred to these appellate decisions. Finally, Scheff s last condition for independence was met; but not in the manner which he described. Few respondents themselves had the resources Scheff mentioned: competence to articulate, knowledge of their rights, and ability to retain their own lawyers. However, because of reform, all respondents were given counsel. Although counsel may have fought commitment in only a relatively few cases (Hiday, 1980), their presence may have contributed to the courts’ making decisions on the bases of evidence instead of bias and presumption of illness. Through counsel, respondents gained competence to articulate and gained ‘5cheff
calls tuch
an assumption
“psychiatric
sophistication.”
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knowledge of their rights. While few in number, enough counsel in North Carolina appealed court decisions lacking CCC evidence of imminent dangerlO to create an atmosphere of concern for procedural rights and the requirements of evidence of imminent danger. Counsel’s challenges to commitment decisions based on less than CCC evidence of imminent danger and the North Carolina Court of Appeals overturning those decisions and specifying the need for behavioral evidence of imminent danger explain why we find little deference to psychiatry in 1979, five years after reform, in contrast to the large deference found one year after statutory reform (Hiday, 1977). There frequently is a time lag beween changes in the written law, either legislative or judicial, and implementation on the local level. Ambiguity in the law, ignorance, and selective interpretation and application can lead to a lack of immediate compliance (Johnson, 1967). In the case of the North Carolina civil commitment reform statute, the legislature did not specify how imminent danger was to be determined. I1 Many judges accepted psychiatric opinion as “facts for imminent danger.” Appeals by counsel resulted in higher court decisions which narrowly defined imminent danger as recent behavioral acts with the potential of inflicting serious harm. Such definition has given the court a legally enforceable test of the dangerousness standard and, thus, has eliminated psychiatric opinion as “facts for imminent danger.” We, therefore, disagree with McGarry et al. (1978) and Roth (1980) who contend that it is the procedural safeguards rather than the substantive criteria which have made a difference in civil commitment after reform. Although civil commitment courts are making independent decisions and are not deferring to psychiatry, by no means are they ignoring psychiatry. Indeed, the courts show great respect toward psychiatry and its practitioners who participate in the civil commitment process. Attorneys and judges tend to uncritically accept psychiatric diagnoses of mental illness and recommendations of the need for treatment. They may question whether a less restrictive alternative is possible; but most likely, they question the psychiatric finding of imminent danger. It is in ascertaining through evidence of dangerous behavior this second criterion for involuntary commitment that the courts are acting independently of psychiatry. References Albers, D. A., Pasewak, R. A., & Meyer, P. A. Involuntary hospitalization and psychiatric testimony: The fdlibiliry of the doctrine of immaculate perception. Capiral Universifv Law Review, 1976, 6, 1l-33. American Psychiatric Association. Clinical aspecrs of the violent individual (Task Force Report 8). 1974. Andalman, E., & Chambers, D. L. Effective counsel for persons facing civil commitment A survey, a polemic and a proposal. Missmippi Law Journal, 1974, 45, 43-91. BaTeInn, D. L. Institutional psychiatry: “The self-inflicted wound.” Cafholic University Law Review, 1974,
23, 643-648. Brooks,
A. D. Law, psychiarr,, and [he tnenral health sysfem. Boston:
Little,
Brown
and Co.,
1974.
l”lmerestinalv-
the North Carolina lawvers who have appealed commitment cases have not been members mental health advocacy group. They have acted on their own out of a sense of justice or, in the case of one full time civil commitment attorney, out of a felt need for legal clarity (personal communica-
of any organized
tion with counsel involved).
“Since our study, the North Carolina Legislature made more explicit the definition of dangerousness to self and to others bq specifying certain recent behaviors (N.C.G.S. 5 122-59.2 (la).
both
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Cocozza, J. J, & Steadman, H. J. The failure of psychiatric predictions of dangerousness: Clear and convincing evidence. Rufgers Law Review, 1976, 29, 1084-I 101. Cohen, F. The function of the attorney in the commitment of the mentally ill. Te.wzs Law Relzierv, 1966, 44,
424-469. Developments in the Law. Civil commitment of the mentally ill. Harvard Law Review. 1974, 97, 1190-1406. Durham, M. L., & Pierce, G. L. A preliminary analysis of the impact of Washington state’s new involuntary commitment act on the delivery of mental health services. Paper presented to the Society for the Study of Social Problems, New York, August, 1980. Ennis, B. J., & Litwack, T. R. Psychiatry and the presumption of expertise: Flipping coins in the courtroom.
California Law Review, 1974, 62. 693-752. Goode,
S. J. The role of counsel in the civil commitment
process:
A theoretical
framework.
Yule Law Journal,
1975, 84, 1540-1563. Groethe, R. Overt dangerous behavior as a constitutional requirement for involuntary civil commitment of the mentally ill. University of Chicago Law Review, 1977, 44, 562-593. Halleck, S. L. Psychiatryand thedilemmusof crime: Astudyofcuuses, punishment and treatment. New York: Harper and Row, 1969. Hiday, V. A. Reformed commitment procedures: An empirical study in the courtroom. Law and Society Re-
view, 1977, 11, 652-666. V. A. Representing respondents under new civil commitment siututes: An unai_vsisof counsel’s role in and out of the courtroom. Paper presented to the Southern Sociological Society, Knoxville, April 1980.
Hiday,
Johnson, R. M. The dynamics of compliance: Supreme court decision making from a new perspective. Evanston, IL: Northwestern University Press, 1967. Kumasaka, V., Stokes, J., & Gupta, R. K. Criteria for involuntary hospitalization. Archives of General Ps_vchiutry, 1972, 26, 399-404. Kunter, L. The illusion of due process in commitment proceedings. Norfhwestern Unrversirv Law Review’,
1962,57, 383-399. Litwack,
T. R. The role of counsel
in civil commitment
proceedings:
Emerging
problems.
Culifornio Law Re-
view, 1974, 62, 816-839. Maisel, R. Decision making in a commitment court. Psychiutry, 1970, 33, 352-361. McGarry, A. L., Schwitzgebel, R. K., Lipsett, P. D.. &Lelos D. Civilcommitment andsocial power. Report to the Center for Studies of Crimes and Delinquency, NIMH, 1978. Miller, D., &Schwartz, M. County lunacy commission hearings: Some observations of commitments to a state mental hospital. Social Problems, 1966, 14, 26-35. Ochberg, F. M., & Brown, B. S. Mental health and the law: Partners in advancing human rights. L’niversifv of Pennsylvania Law Review, 1974, 123, 491-508. Postel, R. I. Civil commitment: A functional analysis. Brooklyn Law Review, 1971, 38, l-94. Roth, L. H. Mental health commitment: The state of the debate, 1980. Hospitulund Communitv Psychiatry.
1980.31, 385-396. Scheff,
T. J. Social conditions
for rationality:
How urban
and rural
courts
deal with the mentally
ill. The
Americun Behavioral Scientist, 1964, 7, 21-27. Schulman, R. E. To be versus not to be an expert. Washington University Law Quurrer/_v. 1973, 57-66. Shah, S. A. Some interactions of law and mental health in the handling of social deviance. Catholic University
Law Review, 1974, 23, 674-719. Stier, S. D., & Stoebe, K. .I. Involuntary hospitalization of the mentally ill in Iowa: The failure of the 1975 legislation. fowu Low Review, 1979, 64, 1284-1458. Stone, A. A. Menfui health und law: A system in trunsifion. Rockville, MD: NIMH, Center for Studies of Crime and Delinquency, 1975. Warren, C. A. B. Involuntary commitment for mental disorder: The application of California’s Lanterman-Petris-Short act. Low and S0ciet.v Review, 1977, II, 629-650. Warren, C. A. B. The social construction of dangerousness. Urban Life, 1979, 8, 359-384. Weatherly, R. A. Interagency coordination for client processing: A study of the implementation and impact of the Washington state invohmfary treutmenf ucf. A proposal submitted to the National Science Foundation, February 1, 1980. Wexler, D. B. Mental health iuw: Major issues. New York: Plenum Press, 1981. Wexler, D. B., Scoville, S. E., et al. Special project: The administration psychiatric justice: Theory and practice in Arizona. Arizona Low Review, 1971, 13, l-259. Zander, T. K. Civil commitment in Wisconsin: The impact of Lessard v. Schmidt. Wisconsin Law Review,
1976, 2, 503-562.
Lawsnd
Psychiatry,
rightsreserved.
Vol. 4, pp. 159-170.
1981 CopyrIght
0160.2527/81/010159-12502.0010 E 1981 Pergamon Press
Ltd
Court Decisions in Civil Commitment Independence or Deference? Virginia AldigC Hiday*
As the civil rights movement has spread into the area of mental health law under the leadership of the mental health advocacy movement, courts and state legislatures have affirmed due process rights for persons alleged to be mentally ill and have limited state commitment power to the mentally ill who are dangerous (Groethe, 1977; McGarry et al, 1978; Ochberg and Brown, 1974). Where the law formerly emphasized medical concerns, that is, obtaining treatment for the mentally ill, it now emphasizes legal concerns, that is, preventing unnecessary deprivation of freedom. I To that end, the law guarantees respondents in involuntary commitment proceedings notice, speedy procedure, counsel, confrontation of witnesses, and regular court review. Prior to the spread of civil libertarian concerns into the mental commitment area, research reported legal procedures for involuntary commitment to be “perfunctory” and “a legal charade” (Cohen, 1966) which merely “rubber stamped” (Shah, 1974) medical recommendations. Most studies described exceedingly brief hearings in which little or no factual evidence was given on which to base a finding of mental illness or danger (Andalman & Chambers, 1974; Cohen, 1966; Hiday, 1977; Litwack, 1974; Stier & Stoebe, 1979; Warren, 1977; Zander, 1976). Despite arguments by prominent psychiatrists (American Psychiatric Association, 1974; Halleck, 1969; Stone, 1975) and other scholars (Cocozza & Steadman; 1976; Ennis & Litwack, 1974) on the inability of psychiatry to predict dangerousness, psychiatrists presented conclusory statements to the court on dangerousness as well as mental illness and the court uncritically and passively followed psychiatric recommendations. Not knowing the basis of psychiatrists’ conclusions about the legal criteria, the court defaulted in its responsibility to *Associate Professor, Department of Sociology and Anthropology, North Carolina State University, P.O. Box 5428, Raleigh, NC 27650, USA. This research was supported by grant #5 ROI MH 30548 from the Center for Studies of Crime and Delinquency, Alcohol, Drug Abuse, and Mental Health Administration of the National Institute of Mental Health. The author wishes to thank the judges, counsel, and clerks who cooperated in making this research possible, and Henry J. Steadman and John Monahan who contributed their ideas for improving an earlier version of this manuscript. ‘In the past year the pendulum may have begun to swing in the opposite direction in some states. Washington has made it easier to involuntarily commit the mentally ill by making more inclusive the statutory definitions of “gravely disabled” and “likelihood of serious harm” (Durham & Pierce, 1980; Weatherly, 1980). In 1979, after our study, North Carolina removed imminent from dangerous as a criterion for commitment; however, many courts are still restricting the definition of dangerous to that which is imminent. 159
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weigh evidence in order to determine mental illness/danger and to consider carefully if a respondent’s alleged harm were of sufficient seriousness and likelihood to justify the state’s removing his liberty (Andalman & Chambers, 1974; Cohen, 1966; Kunter, 1962; Maisel, 1970; Miller & Schwartz, 1966; Scheff, 1964; Wexler & Scoville, 1971). By specifying due process rights and requiring court hearings the new legislation is moving to check perfunctory or no court review. Essentially it is declaring that medical opinion alone is not enough to confine a person to a mental hospital; and thus, it is defining the role of the court to be independent of psychiatry. The court may accept medical recommendation; but to achieve the desired independence from psychiatric expertise, the court must refuse to accept psychiatric conclusory statements without supporting facts. The question is whether now after reform, the civil commitment courts are making independent judgments or are they continuing to defer to psychiatry?29 3 The Setting
This paper presents the results of a study of civil commitment hearings in rural and urban courts in one state, North Carolina, which has satutory reform representative of new legislation attempting to reduce involuntary commitments by insuring due process. Prior to reform (1973), a person could be committed by certification of two physicians, by a clerk at a hearing, or by either a clerk or a single physician in an emergency. Counsel was not provided; the burden of proof was on the respondent; and no court review was provided unless a patient obtained a writ of habeas corpus, a rare occurrence. The North Carolina reformed statute allows the state to commit individuals to mental hospitals on the basis of mental illness or inebriety and imminent danger to self or others.4 The commitment procedure is begun by the petitioner, who may be any citizen, including a law enforcement officer, with knowledge of an individual who is mentally ill or inebriate and imminently dangerous to self or others. Four findings of fact must be made by (1) a magistrate or clerk who receives the petition, (2) a local qualified physician who examines the respondent *somescholarsarguethat it is not deference to psychiatry when judges abrogate their decision making responsibility; but rather it is default to psychiatrists (Ennis & Litwack, 1974; Schulman, 1973; Shah, 1974). Instead of finding fact and making difficult decisions, judges let psychiatrists do the work and then rubberstamp the final psychiatric recommendation. Some civil commitment scholars more harshly criticize judges in contending that judges rubberstamp psychiatric recommendations because they want scientific credence given to decisions to remove from society offensive individuals who violate no criminal law (Albers et al., 1976). ‘Courtroom and legal record studies evaluating the impact of civil commitment reform have already been conducted in several states (Hiday, 1977; Kumasaka et al., 1972; McGarry et al, 1978; Stier & Stoebe, 1979: Warren, 1977, 1979; Zander, 1976). None, however, has attempted to obtain a random sample of cases across an entire state, to record all mention of specific types and dimensions of dangerous behavior given by witnesses in court testimony, and to record counsel’s and judges’ verbal statements to evaluate the independence of civil commitment courts. In general, the earlier studies found that courts continue to defer to psychiatry after reform although deference has been reduced. ‘Although the North Carolina statute establishes a dangerousness standard for involuntary hospitalization, the justification for commitment is based on the state’s parens patriae power as well as its police power. Parens patriae is seen in the statute’s definition of dangerous to self which includes gravely disabled behavior, that is, inability to provide for basic needs of food, clothing and shelter (N.C.C.S. 5 122-58.2 (1) ).
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in his county of residence, (3) a qualified physician at a treatment facility, and finally at the top of the hierarchy, (4) a district court judge at a hearing. Any one of the four may terminate the commitment procedure by a finding of no mental illness or inebriety, or no imminent danger to self or others. The final district court decision is to be based on clear, cogent and convincing (CCC) evidence. Time limitations are placed on each stage of fact finding such that the final finding of fact at the district court must be made within ten days of the individual’s being taken into custody for the local medical examination. The respondent is given notice of hearing and assigned a lawyer by the court if unable to retain private counsel. Witnesses on the petition are summoned to court. Hearings are in the judicial district of hospital unless a respondent requests that his hearing be held in the judicial district of petition when the two districts are not the same. Most respondents are taken to one of four state mental hospitals for custody, observation, evaluation, and treatment prior to hearings. In cases of veterans with benefits, respondents who choose to pay for private hospitalization, and respondents from counties with public psychiatric hospital beds,” VA, private and county hospitals, respectively, are used. Respondents in state mental hospitals are represented by the attorney, who works full time representing all involuntary respondents at their hospital; other indigent respondents are represented by court appointed attorneys or public defenders. Seldom do respondents hire private counsel, even when they can afford it. The Sample Between March and September 1979, we sampled involuntary commitment respondents throughout North Carolina (n = 1,135). Cases of most respondents (8 1.5 To) were decided in courts in the state mental hospitals. Of those outside of state mental hospitals, four-fifths were in counties with regular hearings, all but one of which had in-patient psychiatric facilities for respondents under involuntary commitment proceedings; and one-fifth were in counties where hearings were infrequent and scheduled on an ad hoc basis, generally when a respondent requested a change of venue from a judicial district with a state mental hospital. We attempted to observe all hearings of the latter type which occurred during our observation period, but were unable to do so because of schedule conflicts and distance constraints. Hearings in the former counties and in state mental hospitals were sampled on the basis of convenience and their proportional representation among all civil commitment cases. Of the hearings outside of state mental hospitals, 23.1% were in rural counties, that is, no place greater than or equal to 10,000 population; 25.6% were in urban counties and 51.3% were in SMSAs. The sample of persons against whom civil commitment procedures were brought is not different from the population admitted to state mental hospitals in North Carolina, except in two instances: the proportions of elderly and female ‘Not all counties with public psychiatric hospital beds have state approval to keep respondents of involuntary commitment proceedings and not all counties with such approval choose to keep these respondents. Many counties with public psychiatric hospital beds limit them to voluntary patients or involuntary patients whom they consider to be “manageable” and “not too disruptive.”
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in the sample are greater than those in total admissions (> 65: 16.9% to 7.4%; female: 45.9% to 29.4%). These differences reflect in part the exclusion of minors, who tend to be more heavily male, from the involuntary commitment procedures and thus from our sample. Parents can “voluntarily” admit their minor children to a state mental hospital, even against the children’s wills. Only 13 of our sampled respondents were under 18 years of age. The great majority of persons admitted to the state hospitals did not complete high school (69.4%). Although no education data are available for the sample, other indicators describe the same low socio-economic status. Sample median monthly income is $202 for the 7.4% whose records contain income information; and over two-thirds have a monthly income of $250 or less, with just over 14% reporting no income. Seldom do middle class or upper middle class persons become respondents to involuntary commitment proceedings. Only 11 respondents were recorded with monthly incomes over $500; and of those without income information, only 3.1% could be classified as upper middle class on the basis of speech, dress, education, or occupation of either themselves or their families. The major diagnostic categories of the allegedly mentally ill as stated by psychiatrists on the physician’s affidavit were schizophrenia, general psychosis, and organic brain syndrome (37.2%, 16.4070,and 13.3% respectively). Manicdepression, manic type and depression accounted for approximately 8% each; and paranoia accounted for less than 3%. Only five persons were given no diagnosis or said to be not mentaly ill. Approximately half of the respondents had involuntary procedures brought by a spouse (16.0%) or a child/parent (34.1070).Other relatives accounted for 13.9% of petitioners, local physicians for 17.3%, and law officers for 12.7%. Petitioners were automatically subpoenaed to hearings but often they failed to appear. All persons considered for involuntary commitment were appointed counsel: 12.3% had court appointed attorneys, 3.8% had public defenders, 83.1% had full-time civil commitment lawyers who worked in state mental hospitals; 0.6% chose to be represented by private counsel, and 0.3% (only three persons) were represented by themselves after refusing court appointed counsel. In 87.7% of cases the state and petitioner were represented by a special advocate in the state mental hospital or by the district attorney’s office; but in most cases outside of state hospitals, there was no counsel for state and petitioner, putting the burden on the judge to bring forth evidence of mental illness and imminent danger to self or others. Measurement
Previous studies have used percent court agreement with psychiatric recommendations to indicate deference to psychiatry. Since the court’s main function is to assure that persons not mentally ill and not imminently dangerous are not involuntarily hospitalized, only percent agreement with psychiatric recommendation to commit measures deference. Court agreement with psychiatric commitment recommendations, however, can be misleading. It is possible for the court to have high agreement with such recommendations and yet to make independent decisions. Agreement could arise from independent evaluation of facts which clearly indicate mental illness and imminent danger. To avoid
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dependence on this single potentially misleading measure, we developed four procedural and outcome indicators of deference which we specified prior to the observation period. We applied these indicators to cases of mentally ill respondents for whom psychiatrists recommended commitment and who had initial commitment hearings (n = 454).h Two observers were present in all hearings and independently recorded by means of a checklist the presence of indicators. Notetaking of evidence presented by witnesses and statements and questions of both judges and attorneys supplemented the checklist. The four measures of deference are: 1. Length of hearing: When a hearing lasted less than five minutes, it was taken to represent a lack of consideration of evidence and hence deference to psychiatric opinion. The literature suggests that a hearing of at least five minutes represents a minimurn standard of court independence of psychiatric opinion. Hearings lasting longer than five minutes, however, do not guarantee independent decisions. One study found the average length of civil commitment hearings to be thirteen minutes; yet physician testimony tended to be brief with conclusions unsubstantiated and with counsel never calling witnesses to refute factual evidence or psychiatric opinion (Zander, 1976). 2. Judges questioning of witness(es): When a judge did not question witness(es) to uncover facts supporting mental illness and imminent danger when counsel did not, it was taken to represent deference to psychiatric opinion. This indicator is valid only in that proportion of cases in which the initial presentation of evidence was inadequate; however, initial presentations generally were incomplete. Many witnesses, especially those of the lower class, do not present CCC evidence necessary to show mental illness and imminent danger. They must be questioned to bring forth testimony to ascertain whether or not there is enough basis in fact to commit a respondent. 3. Court’s acceptance of psychiatrist’s conclusory statement with no supporting “facts”: In cases where the hospital psychiatrist testified,‘if psychiatrists were allowed to make conclusory statements that respondents were dangerous without stating the facts on which the conclusions were based, and if the court accepted such statements without other evidence of imminent danger, it was taken to represent deference to psychiatric opinion. Judge Bazelon (1974) argues that such practice is especially dangerous because psychiatric conclusions do “not rest on facts and reasoning which were the product of disciplined investigation. . . . Rather, they were used to cover up the lack of “Alcoholic respondents are excluded because they appear to be treated differently by psychiatry and the courts. They will be analyzed separately in another paper. Recommitment cases, that is cases of those currently involuntarily hospitalized being considered for a commitment extension, are excluded because the great majority of those we observed represent chronic cases of clear dangerousness to self as defined by total inability to care for their basic needs. ‘Court acceptance of written psychiatric conclusions from affidavits without supporting testimony of dangerousness would represent even greater deference or default. Although 90% of psychiatrists’ affidavits contained the legally required documentation of indications of dangerousness, such documentation tended to be cursor!. Moreover, such documentation was frequently based on what psychiatrists read in the petition since most allegedly dangerous behavior occurred in the community prior to examination by a physician, Court acceptance of a psychiatric affidavit without witness testimony of dangerousness would mean accepting a written record of hearsay. Not infrequently, evidence presented in court revealed that the hearsay bases of psychiatric decisions for dangerousness were not true or not valid.
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relevance, knowledge and certainty in the practice of institutional psychiatry - especially in understanding and treating the socially deprived and disadvantaged groups who populate our mental hospitals and penal systems.” 4. Commitment without CCC evidence of imminent danger: When court decision was commitment and there was not a preponderance of evidence of imminent danger to self or others, it was taken to represent deference to psychiatric opinion. This could be the most problematic of all variables because it involves a decision by the observer as to the level of evidence on imminent danger reached by testimony in the courtroom where statutes and practice have established no clear guidelines. To mitigate the effects of the observers’ subjective appraisal of evidence, the standard of mere preponderance of evidence was used since it is a lower standard of proof than clear, cogent, convincing (Wexler, 1981). This lower standard of proof yields a more lenient judgment of court protection of respondents’ civil rights, hence, a conservative estimate of deference to psychiatric opinion. We defined imminent as one of the judges in our pilot study defined it, “likely to happen today, tomorrow, or this week.” We accepted any indication of danger which occurred within the week prior to petition as “likely to happen today, tomorrow, or this week.” We defined evidence for danger to self or others as: (1) physical attacks or attempted attacks to self or others, (2) serious plans or threats of physical attacks to self or others with or without any preparatory motion such as obtaining poison, and not just “threats” made in the heat of argument or thoughts of assault to self or others, (3) unintentional harm such as wandering in front of traffic and not eating/sleeping for a continuous period of time, and (4) physical attacks on property with the potential for total destruction by tearing, burning, or battering such as to remove the ability to provide for basic needs of food, clothing, or shelter. This fourth indicator of deference, although judged by observers, is not entirely a subjective measure. Only imminent and danger, two nonmedical terms, were judged; and the criteria for both of these are specified. The criteria can be disputed precisely because they are specified, unlike the criteria involved in a judge’s decision (unless the judge states his criteria in court). Additionally, the criteria follow federal court decisions and scholarly legal opinion (Lessard v. Schmidt 379 F. Supp. 1376 (E.D. Wis. 1974); Cross v. Harris 418 F. 2d 1095 (1969); Millard v. Harris 406 F. 2d 964 (1968); Brooks, 1974; Developments in the Law, 1974; Postel, 1971). It should be noted that our criteria are more specific than any other. Given specified criteria, it is not subjective to record a witness’s statement of the time of a respondent’s allegedly dangerous act and then to code whether this was within a week prior to petition, or to record a witness’s statement of a respondent’s thrusting a knife into his wife’s ribs and then to code the act as dangerous - physical assault on another. Findings
Table 1 presents the relationship between court decision and final psychiatric recommendation on all initial mentally ill respondents. There is a clear tendency for courts to agree with psychiatric recommendation @ < .OOl); but as stated
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TABLE 1 of Court Decision to Psychiatric
Recommendation
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Release’
%
Recommendation
Alternative
n
%
n
n
Commit
%
n
Court decision Release Alternative Commit Total x2 = 75.16. 4 df, p < .OOl. ‘Includes no recommendation
77.1 4.6 18.3 100.0
(10) (10) ( 3)
45.0 8.4 46.6
(256) ( 48) (265)
( 63)
(20)
43.5 43.5 13.0
(350)
(109)
100.0
(23)
100.0
(569)
(701)
(288)
by psychiatrist.
earlier, this cannot necessarily be taken as deference to psychiatry by courts. The emphasis of statutory reform is to protect the liberty of individuals by keeping involuntary respondents out of mental hospitals when they do not meet the criteria of mental illness and imminent danger. Since treatment by a less restrictive means or release does not involve deprivation of respondents’ liberty, in this paper we investigate the question of deference to psychiatry only in cases of psychiatric recommendation to commit. There are 569 such recommendations representing 81.2% of all initial mentally ill respondents. Did the court act independently of medical opinion in these cases? The courts agreed with less than half of these psychiatric recommendations to commit. By this percentage alone we would have to say that the courts are not deferring to psychiatric opinion; however, this percentage is based on all initial mentally ill respondents (701). Some of these persons had no hearings because psychiatrists released them, they died or ran away before court, or they were willing to go along with involuntary hospitalization and not contest it. Before drawing any conclusions we need to investigate deference as it is manifest to the procedural and other outcome indicators for respondents with hearings. Length of Hearing Only 39.3% of the hearings where the psychiatrist recommended commitment were less than five minutes; and of those that ended in a commitment decision, only 27.6% were less than five minutes. Hearings ranged from one to 52 minutes with the mean being 9.4 minutes (see Table 2). Release decisions took the least amount of time on the average (6.8 minutes); and decisions to allow a less restrictive alternative such as out-patient treatment or voluntary hospitalization took the most time (11.8 minutes). Commitment decisions were in between but almost as long as alternative decisions, taking 11.5 minutes. Average length of hearing for each outcome was thus well above the five minute minimum standard; and those in which the respondent was not released took more than twice as long as the minimum. Judge’s Questioning Witnesses to Uncover Facts Supporting Mental Illness When Counsel Did Not Judges questioned witnesses on specific acts, timing, or circumstnces in 16.5%
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TABLE 2 Indicators of Deference*
Judge’s questioning of witness(es) Neither judge nor counsel questioned Court acceptanceof psychiatrist’s conclusions without supporting facts Commitment without a preponderanceof evidenceof imminent danger *Length
of hearing:
16.5% 47.6% 0.8% 6.8%
x = 9.4 minutes
of the cases when psychiatrists recommended commitment. There was some overlap with counsel’s questioning; but in 47.6% of cases, neither judge, counsel, nor advocate for the state/petitioner questioned any witnesses on specific acts, timing or circumstances. Of those cases which ended in a court decision to commit, neither judge, counsel, nor advocate questioned any witnesses in 33.7%. Courts’ Acceptance of Psychiatric Conclusory Statements Evidence in Cases Where the Psychiatrist Testified
Without Supporting
Psychiatrists did not generally appear in court; but in two towns where the hearings were held at the local in-patient facility, they invariably came to testify; and at one state mental hospital, they were frequently present. In most other cases, psychiatrists appeared only when subpoenaed, and not always then. In our sample, psychiatrists testified in 127 cases. Those who testified stated explicitly that a respondent was dangerous or imminently dangerous in less than half their cases (n = 60). In most of these 60 cases, there was a preponderance of evidence from either the psychiatrists or other witnesses indicating imminent danger (76.6%); therefore, there were only 14 cases without evidence of imminent danger in which a psychiatrist testified and made conclusory statements that the respondent was dangerous. Four of them (28.6%) resulted in commitment without supporting facts. By this measure the court deferred to psychiatry in only 0.8% of cases with a hearing and a psychiatric recommendation to commit, a very small amount of deference indeed! Commitment
Without Evidence of Imminent Danger
Following our definition of imminent danger, we judged the commitment decision by the court to be based on less than a preponderance of evidence of imminent danger in 16 cases (6.8% of all our cases committed). It should be remembered that this estimate represents a conservative judgment of deference to psychiatry because the law requires a higher level of proof (CCC) than what we used. Summary
and Discussion
Although previous studies have found civil commitment courts abrogating their judicial role and deferring to psychiatry, our results from 454 hearings in rural and urban courts of one state with statutory reform indicate that the courts
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are tending to act independently in the decision to commit. Although there was high agreement between psychiatric recommendation and judicial decision, there was little deference to psychiatry by our procedural and outcome measures: (1) length of hearings was longer than the minimum standard; (2) before ordering commitment, judges tended to question witnesses when counsel did not; (3) courts committed respondents on the basis of psychiatric conclusory testimony without supporting facts in less than one percent of the cases; and (4) in less than ten percent of commitments was the basis less than a preponderance of evidence of imminent danger. All of our measures were designed to yield conservative judgments of court deference to psychiatry; and some of our measures were most crude. The minimum standard for length of hearing was low; and measures of judges’ questioning indicated only whether at least one question about specific facts was asked, not whether enough questions were asked to ascertain imminent danger. In making a conservative estimate of civil commitment without CCC evidence of imminent danger, that is of deference to psychiatry, we forced ourselves into a position of being unable to estimate the opposite type of problem. We were unable to judge when there was release with CCC evidence of imminent danger or release without enough evidence to determine whether or not imminent danger existed. By our measure 7.7% of respondents with a preponderance of evidence of imminent danger were released. The court released some of these because the level of proof did not reach clear, cogent and convincing; and released some because it defined imminent as “not dangerous at this moment.” Many respondents who were dangerous the week prior to petition had been under medication since being in custody and were no longer dangerous at the time of hearing. Others were released because the court approved an agreement that the respondent obtain an alternative source of help such as treatment at a community mental health center. In those cases where there was no attorney to represent the petitioner and/or the state, release could be ordered without enough evidence to determine whether or not imminent danger existed. If counsel played an adversary role to prevent evidence of imminent danger from being presented and if the judge did not assume an active role in questioning witnesses to establish imminent danger, no clear, cogent, and convincing evidence of imminent danger would be presented in court even when the behavior of the respondent was actually imminently dangerous. As we could determine from observation and discussion with counsel, release of respondents under these circumstances was rare. Our two outcome measures (commitment on the basis of psychiatric conclusory statements without supporting facts and commitment based on less than a preponderance of evidence of imminent danger), provide strong support that there was little deference to psychiatry. Why do we find little deference, when other studies found much? Writing in the pre-reform days of mental commitment before the civil rights movement spread to mental patients, Thomas Scheff (1964) suggested five conditions which favor independent decisions” based on evidence as opposed to a presumption of illness and an automatic order of com*Scheff
referred
IO independent
decisions based on evidence as “substantive
rationality.”
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mitment: (1) small volume of cases, (2) no assumption that psychiatrists have specialized technical knowledge about mental illness,’ (3) personal acquaintance with respondents or their families, (4) no intense public pressure against releasing patients erroneously, and (5) respondents’ resources for defending against allegations. He found these conditions to hold in rural courts which tended to decide cases on the basis of evidence; and their opposites to hold in urban courts which tended in their decisions to be biased by presuming mental illness. In our study, the first three of Scheffs conditions are unable to explain the courts’ independence: (1) Less than 20% of our cases were heard in courts with a small volume of cases. Nonetheless, there was no significant difference in the proportion of respondents committed without a preponderance of evidence of imminent danger between courts hearing a small number of cases and those hearing a large volume of cases. (2) Most judges and counsel assumed that psychiatrists had specialized technical knowledge of mental illness; and they seldom questioned this knowledge. Even though decisions were to be based on danger and courts could be said to have expertise in dealing with dangerous persons, many counsel and judges expressed discomfort at having to rule on involuntary hospitalization when a psychiatrist had already determined commitment necessary. (3) There was evidence of court officers’ personal acquaintance with respondents and their families in both urban and rural courts; but we did not code this fact during our observations. Although our lack of measurement prevents us from detecting any significant difference in familiarity between rural and urban courts, there was no significant difference between them in the proportion committed without a preponderance of evidence of imminent danger. On the other hand, the urban courts in our sample are in cities at the middle and low end of the urban continuum. As such they still have many of the qualities of small communities including judges’ personal familiarity with a large proportion of community members. The last two of Scheff’s conditions for independence do hold; however, they must be qualified and elaborated. While there were no sensational newspaper reports of erroneously released respondents which would build public pressure to retain respondents erroneously either in the year before or during the course of our study, there was, on the other hand, pressure to avoid erroneous commitment. Besides the emphasis on respondents’ civil liberties in the reform legislation, in scholarly journals, and in federal courts, the North Carolina Court of Appeals overturned a number of commitment decisions on the basis of insufficient evidence of imminent danger. Both urban and rural judges, therefore, had pressure from within the legal system to limit commitment to cases with evidence indicating imminent danger. Several judges mentioned this pressure and/or referred to these appellate decisions. Finally, Scheff s last condition for independence was met; but not in the manner which he described. Few respondents themselves had the resources Scheff mentioned: competence to articulate, knowledge of their rights, and ability to retain their own lawyers. However, because of reform, all respondents were given counsel. Although counsel may have fought commitment in only a relatively few cases (Hiday, 1980), their presence may have contributed to the courts’ making decisions on the bases of evidence instead of bias and presumption of illness. Through counsel, respondents gained competence to articulate and gained ‘5cheff
calls tuch
an assumption
“psychiatric
sophistication.”
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knowledge of their rights. While few in number, enough counsel in North Carolina appealed court decisions lacking CCC evidence of imminent dangerlO to create an atmosphere of concern for procedural rights and the requirements of evidence of imminent danger. Counsel’s challenges to commitment decisions based on less than CCC evidence of imminent danger and the North Carolina Court of Appeals overturning those decisions and specifying the need for behavioral evidence of imminent danger explain why we find little deference to psychiatry in 1979, five years after reform, in contrast to the large deference found one year after statutory reform (Hiday, 1977). There frequently is a time lag beween changes in the written law, either legislative or judicial, and implementation on the local level. Ambiguity in the law, ignorance, and selective interpretation and application can lead to a lack of immediate compliance (Johnson, 1967). In the case of the North Carolina civil commitment reform statute, the legislature did not specify how imminent danger was to be determined. I1 Many judges accepted psychiatric opinion as “facts for imminent danger.” Appeals by counsel resulted in higher court decisions which narrowly defined imminent danger as recent behavioral acts with the potential of inflicting serious harm. Such definition has given the court a legally enforceable test of the dangerousness standard and, thus, has eliminated psychiatric opinion as “facts for imminent danger.” We, therefore, disagree with McGarry et al. (1978) and Roth (1980) who contend that it is the procedural safeguards rather than the substantive criteria which have made a difference in civil commitment after reform. Although civil commitment courts are making independent decisions and are not deferring to psychiatry, by no means are they ignoring psychiatry. Indeed, the courts show great respect toward psychiatry and its practitioners who participate in the civil commitment process. Attorneys and judges tend to uncritically accept psychiatric diagnoses of mental illness and recommendations of the need for treatment. They may question whether a less restrictive alternative is possible; but most likely, they question the psychiatric finding of imminent danger. It is in ascertaining through evidence of dangerous behavior this second criterion for involuntary commitment that the courts are acting independently of psychiatry. References Albers, D. A., Pasewak, R. A., & Meyer, P. A. Involuntary hospitalization and psychiatric testimony: The fdlibiliry of the doctrine of immaculate perception. Capiral Universifv Law Review, 1976, 6, 1l-33. American Psychiatric Association. Clinical aspecrs of the violent individual (Task Force Report 8). 1974. Andalman, E., & Chambers, D. L. Effective counsel for persons facing civil commitment A survey, a polemic and a proposal. Missmippi Law Journal, 1974, 45, 43-91. BaTeInn, D. L. Institutional psychiatry: “The self-inflicted wound.” Cafholic University Law Review, 1974,
23, 643-648. Brooks,
A. D. Law, psychiarr,, and [he tnenral health sysfem. Boston:
Little,
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and Co.,
1974.
l”lmerestinalv-
the North Carolina lawvers who have appealed commitment cases have not been members mental health advocacy group. They have acted on their own out of a sense of justice or, in the case of one full time civil commitment attorney, out of a felt need for legal clarity (personal communica-
of any organized
tion with counsel involved).
“Since our study, the North Carolina Legislature made more explicit the definition of dangerousness to self and to others bq specifying certain recent behaviors (N.C.G.S. 5 122-59.2 (la).
both
VIRGINIA
170
ALDlGi
HIDAY
Cocozza, J. J, & Steadman, H. J. The failure of psychiatric predictions of dangerousness: Clear and convincing evidence. Rufgers Law Review, 1976, 29, 1084-I 101. Cohen, F. The function of the attorney in the commitment of the mentally ill. Te.wzs Law Relzierv, 1966, 44,
424-469. Developments in the Law. Civil commitment of the mentally ill. Harvard Law Review. 1974, 97, 1190-1406. Durham, M. L., & Pierce, G. L. A preliminary analysis of the impact of Washington state’s new involuntary commitment act on the delivery of mental health services. Paper presented to the Society for the Study of Social Problems, New York, August, 1980. Ennis, B. J., & Litwack, T. R. Psychiatry and the presumption of expertise: Flipping coins in the courtroom.
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view, 1977, 11, 652-666. V. A. Representing respondents under new civil commitment siututes: An unai_vsisof counsel’s role in and out of the courtroom. Paper presented to the Southern Sociological Society, Knoxville, April 1980.
Hiday,
Johnson, R. M. The dynamics of compliance: Supreme court decision making from a new perspective. Evanston, IL: Northwestern University Press, 1967. Kumasaka, V., Stokes, J., & Gupta, R. K. Criteria for involuntary hospitalization. Archives of General Ps_vchiutry, 1972, 26, 399-404. Kunter, L. The illusion of due process in commitment proceedings. Norfhwestern Unrversirv Law Review’,
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view, 1974, 62, 816-839. Maisel, R. Decision making in a commitment court. Psychiutry, 1970, 33, 352-361. McGarry, A. L., Schwitzgebel, R. K., Lipsett, P. D.. &Lelos D. Civilcommitment andsocial power. Report to the Center for Studies of Crimes and Delinquency, NIMH, 1978. Miller, D., &Schwartz, M. County lunacy commission hearings: Some observations of commitments to a state mental hospital. Social Problems, 1966, 14, 26-35. Ochberg, F. M., & Brown, B. S. Mental health and the law: Partners in advancing human rights. L’niversifv of Pennsylvania Law Review, 1974, 123, 491-508. Postel, R. I. Civil commitment: A functional analysis. Brooklyn Law Review, 1971, 38, l-94. Roth, L. H. Mental health commitment: The state of the debate, 1980. Hospitulund Communitv Psychiatry.
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Americun Behavioral Scientist, 1964, 7, 21-27. Schulman, R. E. To be versus not to be an expert. Washington University Law Quurrer/_v. 1973, 57-66. Shah, S. A. Some interactions of law and mental health in the handling of social deviance. Catholic University
Law Review, 1974, 23, 674-719. Stier, S. D., & Stoebe, K. .I. Involuntary hospitalization of the mentally ill in Iowa: The failure of the 1975 legislation. fowu Low Review, 1979, 64, 1284-1458. Stone, A. A. Menfui health und law: A system in trunsifion. Rockville, MD: NIMH, Center for Studies of Crime and Delinquency, 1975. Warren, C. A. B. Involuntary commitment for mental disorder: The application of California’s Lanterman-Petris-Short act. Low and S0ciet.v Review, 1977, II, 629-650. Warren, C. A. B. The social construction of dangerousness. Urban Life, 1979, 8, 359-384. Weatherly, R. A. Interagency coordination for client processing: A study of the implementation and impact of the Washington state invohmfary treutmenf ucf. A proposal submitted to the National Science Foundation, February 1, 1980. Wexler, D. B. Mental health iuw: Major issues. New York: Plenum Press, 1981. Wexler, D. B., Scoville, S. E., et al. Special project: The administration psychiatric justice: Theory and practice in Arizona. Arizona Low Review, 1971, 13, l-259. Zander, T. K. Civil commitment in Wisconsin: The impact of Lessard v. Schmidt. Wisconsin Law Review,
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