Academic journal article Law and Psychology Review

Safety or Freedom: Permissiveness vs. Paternalism in Involuntary Commitment Law

Academic journal article Law and Psychology Review

Safety or Freedom: Permissiveness vs. Paternalism in Involuntary Commitment Law

Article excerpt

ABSTRACT

This note examines the evolution of involuntary-commitment law and policy in the United States, framed as a choice between opposite poles of paternalism and permissiveness. The note discusses the development of Fourteenth Amendment due-process approaches to involuntary commitment in the federal courts, and the simultaneous changes in state involuntary-commitment laws. It concludes that current involuntary-commitment law has evolved in an excessively permissive direction, to the detriment of patients' interests, and endorses new policies intended to regain a balance between patients' rights and their well-being.

INTRODUCTION: PERMISSIVE OR PATERNALISTIC?

Kenneth Donaldson was released from a Florida mental hospital in 1971. (1) Donaldson, who had been committed when he was 43, (2) spent almost 15 years in the institution. (3) Donaldson was committed in 1957, after his father told. authorities his son suffered from "delusions." (4) After a single hearing before a county judge, (5) Donaldson was committed to Florida State Hospital. (6) Hospital authorities denied his repeated entreaties for release, even as they conceded he posed no threat to himself or others. (7)

During his stay, Donaldson received no mental-health treatment and was confined for "substantial periods" in a room he shared with as many as sixty other patients, many of whom were convicted criminals. (8) All the while, the hospital authorities refused to discharge him, rejecting appeals from friends and mental-health professionals that he be released into their care. (9)

The hospital did not relent until Donaldson brought suit in federal court under 42 U.S.C. [section] 1983. (10) He walked out of Florida State Hospital a free man, and the trial jury returned a verdict in his favor--a judgment eventually upheld by the United States Supreme Court. (11) Following his release, Donaldson published a book about his ordeal and became an activist for the rights of others improperly held. in mental health facilities. (12)

Linda Bishop was released from a New Hampshire mental hospital in October of 2007. (13) Bishop, a college-educated 51-year-old, had been diagnosed with bipolar disorder and psychosis. (14) She entered the hospital in 2006 after being found incompetent to stand trial on a variety of criminal charges. (15) During her 11-month stay, she refused treatment, denied she had an illness, and declined to plan for her life after release. (16) "God will provide," she reportedly told. her doctors. (17)

Early in her stay, the hospital petitioned the probate court to appoint a guardian to make medical decisions on Bishop's behalf, but the petition was denied. (18) As a result, Bishop was free to refuse treatment, and eventually was discharged "with only pocket change, no access to a bank account, and not a single person aware of where she was going." (19)

After her discharge, Bishop wandered, homeless, for several days, before breaking into an unoccupied farmhouse. (20) She lived in the house, without electricity, running water, or human contact, for two months, refusing to move on without "further instructions from God," (21) and huddling under piles of blankets as the weather turned steadily colder. (22)

For a while, she subsisted on apples she picked from nearby trees. (23) And she kept a diary, alternating between lucid reflections on her life--and updates on her dwindling food supply--and recordings of her delusional mental state. (24) At one point she wrote, plaintively, "Dear God. Please save me. I'm trying, but I don't know what to do. Amen." (25)

Bishop ate her last apple on Dec. 5, 2007. (26) She wrote her last diary entry on Jan. 13, 2008. (27) She died of starvation shortly thereafter; her body went undiscovered for four months. (28)

The experiences of Kenneth Donaldson and Linda Bishop, separated by more than three decades, represent opposite failures of America's mental health system. …

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