On today's broadcast of This Week with Christiane Amanpour, Rep Debbie Schultz of Florida stated that the laws governing involuntary commitment need reform. She explained that in her state, the Baker Act permits only three days of involuntary commitment. After that, hospitals have no choice but to release patients. No one can be held for more than three days, she said.
That got my attention because I knew she was wrong and not just a little bit wrong. This matters because many people are reacting to the Tucson rampage with calls for legal reforms that would loosen the standards for involuntary commitment. There are reasonable questions to be asked about whether the bar for involuntary commitment is too high in some states, but before the laws can be evaluated, it's necessary to understand how involuntary commitment actually works.
The laws vary from state to state, but there are two or three steps involved. The first step is a Petition for Commitment. Some states specify that only magistrates, law enforcement agents, physicians or mental health workers can initiate the process. In other states, any adult can initiate the process.
The petition typically specifies that the individual in question poses a danger to self or others. Danger to self may be broadly construed to cover suicide risk and inability to care for oneself. (see Wikipedia for a discussion of danger containment) Some states are more specific about commitment based on inability to care for self, drug abuse, mental retardation and even disability associated with aging.
Sometimes family members or friends will bring an individual to an ER, but often the police transport the individual to a hospital. At the hospital, the person is evaluated by a physician. If the physician determines that the person meets the requirement to be held, the person will be asked to agree to voluntary commitment. If the person refuses voluntary commitment, they can be admitted involuntarily for a period of observation and further evaluation, typically lasting 3-5 days maximum. In Representative Schultz's home state, the limit for the evaluation period is three days. This seems to be the source of Schultz's confusion. The three-day limit refers to the period of time that a person can be held involuntarily for evaluation without a court order for involuntary commitment.
Again, procedure will vary by state, but often what occurs next is that a second physician will evaluate the person and recommend involuntary commitment if the physician believes that the individual poses a danger to self or others. If that recommendation is made, the case must go before a judge. In Illinois, the state's attorney will call witnesses and argue for involuntary commitment.
A private or court appointed-attorney will advocate for the patient. The patient may also be called to testify if they are able. At that point, the judge will decide that either discharge is warranted or that the patient will be committed involuntarily. In Illinois, the period of involuntary commitment cannot exceed 90 days before another court order for commitment would be required for continued hospitalization.
In some states a judge can order either inpatient commitment or outpatient commitment requiring treatment without hospitalization.
This process can be extremely frustrating for family members of the mentally ill. In some cases, the mentally ill person can present very well in front of a judge, making it difficult for the judge to order involuntary commitment. Many mentally ill persons don't present well, but those who do are the most exasperating and frightening to family members who know that their family member is severely mentally ill. One of my college friends had a paranoid schizophrenic brother who was also an attorney. The family was scared to death of what he might do based on years of experience with his illness. Yet time and time again, this very disturbed man could pull himself together in front of a judge so that he could avoid commitment.
I also want to address one other misconception on the part of some who want to reform commitment laws. Based on what we know of Jared Loughner's case so far, it appears that no one initiated the process of involuntary commitment. Whether lowering the bar would have caused others to pursue commitment isn't clear. It's possible that no one would have pursued commitment even if the bar was lower. It can be quite difficult for family members and law enforcement to recognize the seriousness of the situation during an individual's first descent into psychosis. Defensive denial may be in play, but a lack of understanding of serious mental illness is also a factor. As observers after the fact, it's easy to appreciate the seriousness of Mr. Louhgner's mental health problems, but in real time, witnesses often don't know what to make of the behavior they're seeing.