Legal Analysis & Commentary
Perlin, M. L., Dorfman, D. A., & Weinstein, N. M. (2018). On desolation row: The blurring of the borders between civil and criminal mental disability law, and what it means to all of us. Texas Journal on Civil Liberties & Civil Rights, 24, 59-70.
"...developments negatively blur the "borderline" between civil and criminal mental disability law in very troubling and problematic ways and threaten to make it even more pretextual than it is currently. Laws such as these enforce social control in punitive ways, often under the guise of the beneficence of civil commitment. The four categories of individuals identified in this article who, based on these developments, straddle the borderline are those subject to AOT laws, those subject to SVPAs, those found not guilty by reason of insanity, and those subject to laws allowing them to be shuttled from hospitals to prisons for minor crimes. Though these categories of individuals appear quite different, there are important and troubling points of commonality when comparing the structures of the underlying laws and policies, as will be discussed below. Moreover, the features of the laws underlying each of these four developments demonstrate apparent comfort with a system in which many functions of civil and criminal mental disability law merge."
Rodríguez-Roldán, V. M. (2020). The racially disparate impacts of coercive outpatient mental health treatment: the case of assisted outpatient treatment in New York State. Drexel Law Review, 13, 945.
"In 1999, New York State began implementing Assisted Outpatient Treatment (AOT), which allowed for court-ordered outpatient mental health treatment. Despite the initial benevolent intent of this project, negative racial disparities pervade New York's AOT program, with Black and Hispanic people being disproportionately subjected to its court orders. This Article argues that the AOT program has acted to further marginalize and discriminate against New Yorkers of color and recommends several reforms to the program."
Simon, J., & Rosenbaum, S. A. (2015). Dignifying madness: Rethinking commitment law in an age of mass incarceration. University of Miami Law Review, 70, 1-25.
"Modern nation-states have been trapped in recurring cycles of incarcerating and emancipating residents with psychiatric disabilities. New cycles of enthusiasm for incarceration generally commence with well-defined claims about the evils of allowing "the mad" to remain at liberty and the benefits incarceration would bring to the afflicted. A generation or two later, at most, reports of terrible conditions in institutions circulate and new laws follow, setting high burdens for those seeking to imprison and demanding exacting legal procedures with an emphasis on individual civil liberties. Today, we seem to be arriving at another turn in the familiar cycle. A growing movement led by professionals and family members of people with mental health disabilities is calling for new laws enabling earlier and more assertive treatment. After reviewing the history of civil commitment law, this essay suggests that the time is ripe in the United States to end this recurring cycle and make conservation ofhuman dignity the core legal authority behind the state's power of civil commitment and the major normative guide for both legal procedure and treatment. We conclude that the dignity approach has the potential to move the debate beyond the current face-off between consumer and peer advocates, who wish to avoid any revision of the civil commitment reforms enacted forty years ago, andfamilies and professionals, who favor significant changes."
Stefan, S. (1987). Preventive commitment: The concept and its pitfalls. Mental & Physical Disability Law Rep., 11, 288-300.
"The key problem in community mental health care has always been funding. The relative success of coerced community treatment as compared with voluntary community treatment cannot be adequately assessed until an appropriate range of services is available. The absence of adequate, appropriate treatment has particular legal consequences. The state's position is seriously weakened if the realities of preventive treatment bear no relation to the stated goals of preventive commitment. In addition, if the state does not provide procedural protections prior to commitment and if it does not resolve conflicts between the new approach and existing rights, such as the right to refuse treatment, the courts will address these issues, with consequences that might compound the confusion. It is clear that states with preventive commitment statutes are operating on an ad hoc basis, groping for a solution to the dilemma posed by an increasing number of chronically mentally ill people who must rely on inadequately funded community mental health programs. Hastily legislated preventive commitment is not solving the problem. "
Udwadia, F. R., & Illes, J. (2020). An ethicolegal analysis of involuntary treatment for opioid use disorders. The Journal of Law, Medicine & Ethics, 48(4), 735-740.
"Supply-side interventions such as prescription drug monitoring programs, “pill mill” laws, and dispensing limits have done little to quell the burgeoning opioid crisis. An increasingly popular demand-side alternative to these measures – now adopted by 38 jurisdictions in the USA and 7 provinces in Canada — is court-mandated involuntary commitment and treatment. In Massachusetts, for example, Part I, Chapter 123, Section 35 of the state's General Laws allows physicians, spouses, relatives, and police officers to petition a court to involuntarily commit and treat a person whose alcohol or drug abuse poses a likelihood of serious harm. This paper explores the ethical underpinnings of this law as a case study for others. First, we highlight the procedural and substantive standards of Section 35 and evaluate the application of the law in practice, including the frequency with which it has been invoked and outcomes. We then use this background to inform an ethical critique of the law. Specifically, we argue that the infringement of autonomy and privacy associated with involuntary intervention under Section 35 is not currently justified on the grounds of a lack of evidenced benefits and a risk of significant of harm. Further ethical concerns also arise from a lack of standard of care provided under the Section 35 pathway. Based on this analysis, we advance four recommendations for change to mitigate these ethical shortcomings."