Reprinted with permission of the author.
An Address by Paul F. Stavis at the National Conference of the National Alliance for the Mentally Ill, Washington, D.C. July 21, 1995
The history of involuntary civil commitment has been pendular, sometimes in favor as a government policy to treat mental illness, and at other times not in favor. The suspected cause of mental illness has changed throughout history and at various times thought to be due to, among other things, possession of demons, reversion to an animalistic level of consciousness, a sinful state of the soul, a chemical imbalance, and as reported recently in the medical journal Nature and Genetics, a defect in chromosome number six (at least as far as schizophrenia is concerned).
The authority of the state to civilly commit an individual for care, confinement or treatment, also ran the gamut from the absolute and arbitrary power of the king as sovereign to order incarceration, to the contemporary infusion of maximum due process of law to protect life and liberty under constitutional and state law. In the last two decades, civil commitment has become less utilized due to a number of factors, such as the Supreme Court decision in O'Connor v. Donaldson,(1) shrinking public resources, and policy changes in federal and state law. However, in recent years civil commitment appears to be making somewhat of a comeback under various law reforms in many states, such as legislative enactment of the "gravely disabled" standard, outpatient commitment statutes or increased criminal incarceration of persons with mental illness.
As the philosopher George Santayana cautioned, those who ignore history are doomed to repeat the mistakes of the past. The following is a review of the past and a glimpse of the future for this government authority to treat certain individuals with mental illness.
A Brief History of Civil Commitment
Greek philosophy, government, and culture are the primary precursors to our own social and legal practices of civil commitment today. The formulation of the so-called "insanity defense," the use of the "asylum" as a place of rest, serenity and recuperation for the mentally ill, and definition of the basic principles of "informed consent," democracy, and the essential powers of the state, were all originally formulated in ancient Greece and these fundamentals have changed very little since then. Indeed, many of the Greek concepts and even terminology are still frequently used in court decisions and laws two and a half millennia later.
The insanity defense, i.e., the forgiveness of criminal liability due to presence of a mental illness which impairs judgment or behavior, can be found in ancient Greek mythology. In the extensive myths concerning the demi-god Hercules, he is said later in his life to have killed his wife and three children due to a curse from the goddess Hera. Despite this massacre being witnessed by the town's people, he was nevertheless deemed to be nonculpable due to the mental confusion caused by the curse. That is, he was truly unaware that his acts were wrong and/or he was unable to conform his conduct to the law. This is precisely the formula of the modern "insanity defense." Accordingly, Hercules was found to be in need of care and treatment by his best friend, Amphitryon, and the townspeople, and he was given sympathetic counseling to prevent his own subsequent attempted suicide upon regaining his mental competency and realizing what he had done.(2)
The father of medicine, Hippocrates, thought that mental illness was an organic sickness and not caused by a possession by demons. Moreover, he recommended that the treatment of mental illness should be conducted in an asylum, i.e., a secure and safe retreat from the chaos, pressures and impure environment of crowded urban centers rather than having persons with mental illness whipped in public, or incarcerated in dungeon-like buildings.
Soranus of Ephesus lived in the second century A.D. in Rome, and was a physician of Greek extraction. His recommendations for treatment of mental illness were more advanced than some employed fifteen hundred years later. He belonged to the "methodist" school of physicians (related to the philosophers Heraclitus and Epicurus) believing that the human body is composed of atoms constantly in motion. He theorized that disease was caused by a disturbance or an irregularity of these atoms. In light of the recent revelation that much of schizophrenia might be caused by a disturbance to chromosome number six, Soranus' view was remarkably close to the latest findings on the possible causes of some mental illness.
Soranus described two kinds of mental illness, mania and melancholy, which are what we now call schizophrenia and depression. Although the actual treatments of Soranus' time included confinement in a dark room, flogging, starvation diet, making a patient drunk, and inducing sleep with drugs and opium, he dismissed these treatments as futile and haphazard. Rather, Soranus recommended treatments that included patients be: kept in rooms with modest light and adequate warmth and always on the ground floor to prevent suicide attempts; put on a simple diet with regular exercise; and restrained only if necessary, and if so, with bonds made of wool or soft materials to prevent injury. He also recommended that to avoid unnecessary injury, the servants who restrained them should use their hands and not clubs or other instruments. Soranus thought that the patient should be engaged in intellectual activities not only for therapeutic purposes but to detect the progress of the illness; accordingly, patients should be encouraged to talk to philosophers to "banish their fear and sorrow."(3)
In 450 B.C., it was Aristotle who not only defined the legal principle of informed consent which is essentially unchanged to this day, but also defined the two essential powers of a democratic government which are found in our own culture and law and underlie the two legal justifications for civil commitment of certain persons who are mentally ill. Aristotle, in his work the Nicomachean Ethics, essentially defined informed consent as a person's actions which are done with knowledge, rationality and without coercion.(4) Informed consent in modern law - whether it concerns medical consent, involuntary psychiatric commitment or medication, the ability to enter into marriage or a contract, or whether a confession was voluntarily given to the police, etc. - is still a matter of a person's ability to receive and absorb the relevant knowledge, intelligently evaluate the risk and benefits of the decision, and to be free from any coercion. These same three legal elements still form the basis of court decisions, statutes, and they were endorsed by the Report of President's Commission for the Study of Ethical Problems in Medicine and on Biomedical and Behavioral Research.(5)
In terms of the government's role in society, Aristotle postulated that the government has two basic powers: the police power to protect its citizens from danger and harm (known as the "police power"), and its parens patriae power (a later Latin term applied to this concept by Roman Law) to help those in need of parental-type care, i.e., sustenance, protection, nurturing, and education. In other words, under parens patriae power, it is the government's responsibility to act as the ultimate parent of all citizens of the country who have no immediate family or friends to help them in times of need. These two powers respectively underlie and justify the two traditional forms of involuntary civil commitment.
The words of the Declaration of Independence and the Preamble of the United States Constitution expressly incorporate these principles in the fabric of our fundamental law.
In ancient Greece and Rome, care of mentally ill and retarded individuals was largely the responsibility of those persons' family, relatives or close friends. Centuries later, civil commitment became a formalized governmental procedure to isolate socially undesirable persons and only later to treat mental disability as an illness per se. In the latter half of the twentieth century we have seen the diminishment of civil commitment and institutions as treatment for mental illness and an attempt to substitute the community and family, as in ancient times. Yet, perhaps due to the failures of some community treatment or the breakdown of traditional family safety networks, civil commitment is showing signs of returning in new forms.
Civil Commitment in the Middle Ages, Renaissance and Classical Periods of History
Civil commitment was largely unknown as a governmental policy until the 16th century, and its use was not reserved exclusively to persons who were mentally ill, but rather began as isolation of many persons considered "undesirable" by society. Mental illness was not differentiated from other conditions such as idleness, drunkenness, homelessness, etc., which society condemned or sought to correct by the power of the state. Thus, the 16th century is sometimes called the era of "The Great Confinement."(6)
In 1532, the Parliament of Paris decided to arrest beggars and force them to work in the sewers of the city while chained in pairs. Such forced labor was also imposed upon poor scholars, indigents, peasants driven from their farms, disbanded soldiers or deserters, unemployed workers, impoverished students and even the sick. In England, by an act of Parliament of 1575, the government punished vagrants and confined the poor to institutes known as "houses of correction."
In 1606, by decree of the French Parliament, it was ordered that the beggars could be whipped in the public squares, branded on the shoulders, shorn and then driven from the city. Archers were posted at the city gates to prevent re-entry. In 1630, the King of England established a commission to assure vigorous enforcement of the "poor laws," which of course included persons with mental illness, but did not differentiate them from this population of persons in need of correction. Specifically, these laws applied to:
all those who live in idleness and will not work for reasonable wages and who spend what they have in taverns.... For those with wives and children inquiry must be made whether they were married and the children baptized.(7)
Therefore, in relative terms, a major improvement and dramatic change of social attitude came with the decree in 1656 of King Louis XIII establishing the Hôpital Général in Paris to help the poor, military invalids, and the sick. For the first time, this decree required the publicly chartered hospital to accept, lodge, and feed those who presented themselves. The director of the hospital had a lifetime appointment and city-wide jurisdiction, which was immune from review by courts or any other government body. The decree provided:
They have all power of authority, of direction, of administration, of commerce, of police, of jurisdiction, of correction and punishment over all the poor of Paris, both within and without the Hôpital Général....
The directors having for these purposes stakes, irons, prisons, and dungeons in said Hôpital Général and the places hereto appertaining so much as they deem necessary. No appeal would be accepted from the regulations they establish within the said Hôpital; and as for such regulations as intervene without, they would be executed according to their form and tenor, not withstanding opposition or whatsoever appeal made or to be made and without prejudice to these, and for which, notwithstanding all defense or suits for justice no distinction would be made.(8)
The purpose of the Hôpital Général Act of Paris was to prevent "mendicancy [begging] and idleness as source of all disorders." When England's King Henry IV began the siege of Paris it had one hundred thousand inhabitants, 30,000 beggars with 6,000 residents in the Hôpital Général.
It is hard to deny that despite the draconian nature of the Hôpital Général of Paris, it was nevertheless an improvement over banishment and posting archers at the city gates or, in the words of Anatole Francois Thibauet: "The Law in its majestic equality, forbids all men to sleep under bridges, to beg in the street, and to steal bread - the rich as well as the poor." For the first time, there was a governmental obligation to take care of all the needy who "presented" themselves, the unemployed, the sick, etc., at the expense of the nation, albeit there was also an obligation upon the recipients of such care to work for their keep.
In England, a decree of 1697 created an appointed office of justice of the peace to establish houses of correction in various provinces and to collect taxes for their support. By the end of the 18th century in England there were 126 such facilities. Through the 17th century, persons with mental illness were not segregated in any way from persons who were poor, unemployment, physically ill or debilitated, merely idle or social deviant.
The horrors of these hospitals were numerous and punitively based upon theories of illness and idleness. In this age, the view of mental illness was largely that of the "animalistic theory," i.e., those who were mentally ill were very similar to animals who did not feel pain, nor cold, nor severe punishment but rather thrived under such conditions. Indeed, many of the cells in which such persons were confined were built to resemble animal cages and the resident inmates, including women, were often crowded naked in these very tiny rooms.
It was customary in the middle ages until the 19th century in England and France to publicly display the insane through windows where their behaviors could be observed while they were chained to the walls of the asylum. In 17th century England, one penny was required for such a viewing and, according to one accounting, 400 hundred pounds was accumulated over the year which represented approximately 96,000 visits. It was not unusual for a family to take their children on a Sunday trip to see the insane in these facilities surrounding urban areas. At this time in history, madness or mental illness was not considered an illness; rather, it was thought that "madness borrowed its face from the mask of the beast," i.e., it was caused by sin and social deviance. According to a writing by St. Vincent DePaul:
The principal end from which such persons have been removed here, out of the storms of the great world, and introduced into this solitude as pensioners, is entirely to keep them from the slavery of sin, from being eternally damned, and to give them means to rejoice in a perfect contentment in this world and in the next.(9)
By the end of the 18th century one out of every one hundred citizens of the city of Paris was confined in one or more of these institutions. It was not until after the Renaissance that mental illness was identified as an illness unique from other social deviancy, and thus began the segregation of persons with mental illness from others whom society thought undesirable.
The situation was not much better in colonial America. Supporting an indigent, incompetent person was not considered at this time a matter of government responsibility. The colonies were sparsely populated and they lacked any kind of institutional facilities to care for persons with mental disabilities. They often lacked such common governmental agencies as fire departments, public schools, and in many towns and cities there were even no jails or prisons. The position of mentally disabled persons with neither means nor family was rather desperate and they often joined or formed wandering bands drifting from town to town. These bands were treated as monolithic groups with no attempt to segregate mentally ill persons from those who were drifters or merely unemployed. Thus, the European view prevailed that idleness was socially unacceptable, if not also sinful.
It was not until Benjamin Franklin and others authorized the establishment of general hospitals to receive and cure mental illness as well as the sick and poor in the mid-18th century that government and society accepted responsibility for care and treatment of mentally ill individuals.(10)
Modern Civil Commitment
There are three places of commitment for persons with mental illness: "inpatient" commitment (to an institution); "outpatient" commitment (to the community with close monitoring by a government agency, private agency, or individuals); and "criminal" commitment, i.e., where a person is either found not guilty of criminal responsibility, yet mentally ill and in need of care and treatment, or found guilty and mentally ill and who will receive psychiatric services in a prison.
For individuals considered dangerous, civil commitment was available under the police power to protect others from the violence of such mentally ill persons. For mentally ill persons who were in need of care and treatment and yet unaware of that need due to their mental incompetence, the state could involuntarily commit and treat such persons under the parens patriae power, i.e., chiefly for the patient's own benefit.
At the present time every state in the United States has a statute permitting persons to be committed because they pose a danger to themselves or others. However, after the Donaldson decision, only seven jurisdictions have special standards. Arizona permits commitment for persons "persistently and acutely mentally disabled." Hawaii permits commitment for those "obviously mentally ill." Oklahoma has statutes addressing the need for inpatient treatment as indicated by "previous diagnosis and history of mental illness or in need to prevent progressive debilitation." The states of Delaware, South Carolina, and New York permit civil commitment for those who need inpatient care and are unaware of that need. And finally, the state of Iowa permits commitment of persons considered "likely to inflict serious emotional injury on members of their family or others who lack reasonable opportunities to avoid contact with them." The standard of Iowa is reminiscent of commitment to the institutions of Paris in the 17th century where, if the families felt that a mentally ill member was an embarrassment to them, that person could be incarcerated. Twenty-three jurisdictions require commitment to be in a "least restrictive setting."(11)
Civil Commitment, Due Process, and the Donaldson Decision
The modern right of due process traces its lineage directly to the Magna Carta. In the Magna Carta of 1215, the king relinquished some of his sovereignty to the courts of law when government actions affected a citizen's liberty or property. The same principle is what basically underlies the due process clause of the Fourteenth Amendment of the United States Constitution. Accordingly, the United States Supreme Court has held that when government action negatively affects a person's liberty, as civil commitment does to a person's right to liberty, then that person is entitled to due process in a court of law.
Beginning in the mid 1950s, the Supreme Court greatly enhanced constitutional rights for many groups of people, especially for persons who were facing any kind of incarceration, whether a criminal sentence or civil commitment. However, it was not until 1975 that the Court directly addressed the requirements and limitations that due process puts on a state's power to civilly commit a person for psychiatric care and treatment. This decision was O'Connor v. Donaldson.
In some legal circles and even some lower court cases, this decision was thought to have dramatically changed the constitutional principles of due process for civil commitment by homogenizing the two previously distinct powers of civil commitments, i.e., the police power and the parens patriae power.(12) The Court's rhetorical turn of phrase has been interpreted, or perhaps misinterpreted, by certain lawyers and courts as a constitutional requirement that in every case of involuntary civil commitment, the patient must be proved to be "dangerous," i.e., a danger to someone else or to himself. If this standard was indeed what the Supreme Court meant to establish, then it goes a long way to undermine or actually eliminate the use of the parens patriae power of the state for civil commitment purposes. The Supreme Court stated:
a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.(13)
This might have been meant by the Court as an historically accurate reflection of the primacy of the family for the care of its members (an ancient principle of society and law which prevailed in Greece, Rome, and in Medieval and Renaissance Europe). But since the Court has never before contradicted the power of the state to care for those who are incompetent to make decisions, e.g., children, as well as incompetent mentally retarded and mentally ill persons, but rather has said it is inherent in the power of the government, it is questionable that the Supreme Court in the Donaldson decision intended to eliminate or even unduly encumber this traditional power of the state, it has caused undue confusion and impairment of the state's ability to act appropriately and swiftly.(14)
John Parry, editor of the American Bar Association's Mental and Physical Disability Law Reporter recognized the problem:
[i]f dangerousness is not an absolute requirement for involuntary civil commitment, it is very nearly so, for under the Zinermon [based on the Donaldson case] formulation persons cannot be civilly committed unless they are dangerous or cannot live safely in the community. At most, only a small difference exists between being dangerous to oneself and being unable to live safely in the community."(15)
What this means, practically speaking, is that the courts have been redefining incapacity to care for oneself as equivalent to being a "danger," or conversely expanding "dangerousness" to also mean "being endangered."
Justice Learned Hand once said that, except for sickness, litigation is one of the worst things that can befall a person. Yet, the tendency of today's law, although meaning to protect the patient's rights, has rather ironically required that to treat the patient he or she must also be sued and stigmatized a dangerous person in some increasingly vague sense of the word. This is undesirable and has been compelling consideration of new laws resurrecting the parens patriae power. As many states are now doing, it would certainly be easier to resurrect the parens patriae civil commitment statutes through the use of new language or concepts, e.g., the "gravely disabled" and "outpatient commitment" types of statutes, than to await further clarification of the Donaldson decision from the Supreme Court.
1. 422 U.S. 563 (1975).
2. E. Hamilton, Mythology 162-63 (Mentor ed. 1942).
3. J. Gerdtz, "Mental Illness and the Roman Physician: The Legacy of Soranus of Ephesus," 45. Hosp. & Community Psychiatry 485 (1994).
4. The Basic Works of Aristotle, Nicomachean Ethics, Bk. V, ch. 8. (R. McKeon ed., Random House, 1966).
5. Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship, Volume One: Report, (Oct. 1982).
6. M. Foucault, Madness and Civilization: A History of Insanity in the Age of Reason 38 (1961).
7.< Id. at 50.
8. Id. at 40.
9. Id. at 62.
10. S. Brakel, et al., The Mentally Disabled and the Law, 12-13 (1985).
11. J. Parry, "Involuntary Civil Commitment in the 90s," 18 Mental & Physical Disability L. Rep. 320 (1994).
12. P. Stavis, "Involuntary Hospitalization in the Modern Era: Is 'Dangerousness' Ambiguous or Obsolete?" Quality of Care Newsletter Issue 41, Aug.-Sept., (1989). R.J. Isaac & S.J. Brakel, "Subverting Good Intentions: A Brief History of Mental Health Law 'Reform,' "2 Cornell J. of L. & Pub. Poly', 89, 102-112 (1992).
13. Supra note 1, at 576.
14. See, Mormon Church v. United States, 136 U.S. 1, 57 (1890) ("[the parens patriae power is] inherent in the supreme power of every state...and often necessary to be exercised in the interests of humanity").
15. Supra note 11, at 324.