These links discuss many of the issues raised in this thread:

http://www.bazelon.org/Where-We-Stan...rmination.aspx
http://www.treatmentadvocacycenter.org/problem

Joseph D. Bloom, MD, provides his incites in Thirty-Five Years of Working With Civil Commitment Statutes.

The Current Battleground: Outpatient Commitment

There appear to be various conceptions of what is actually meant by outpatient commitment.Again using the Oregon statutes to illustrate, there are different statutory routes leading to an outpatient commitment.leading to an outpatient commitment. First, in the commitment hearing itself, a judge may find that an individual meets commitment criteria; but, instead of hospitalization, the judge may immediately place the individual in an outpatient setting on a type of conditional commitment.

Second, individuals in Oregon are committed to the jurisdiction of the Oregon State Mental Health Division rather than to a specific state facility. The Division then has the authority to place the individual in a setting of its choice. Over the years, the Division has placed a small percentage of those committed directly into an outpatient setting. Finally, state hospitals in Oregon may place hospitalized individuals on “trial visit” for the remaining time of their commitment, up to the 180-day limit. Trial visit is a release from the hospital into the community. It is a designation dating back many years to the time when there was no statutory limit to the length of commitment, and individuals were often on trial visit for extended periods. Now the term remains, but the 180-day limit to commitment applies to the length of the trial visit.

The current national controversy focuses on direct commitment to outpatient settings mostly designed for chronically mentally ill individuals who have been noncompliant with treatment and are deteriorating in their functioning. In Oregon, there are no separate criteria for these commitments. Instead, an individual must meet inpatient criteria. In many areas of the country, there are separate criteria for outpatient commitment. Oregon’s approach partially solves the problem of revocation of the outpatient commitment, because the committed individual has already met criteria for inpatient commitment.

It is this direct outpatient commitment that has generated the current controversy, and it is in this area that we see the most polarized views of the subject. The following describes two contrasting views of mandatory outpatient treatment.

In 1999 the APA published a document, “Mandatory Outpatient Treatment.” 20 The opening paragraph states:

Mandatory outpatient treatment refers to court-ordered outpatient treatment for patients who suffer from severe mental illness and who are unlikely to be compliant with such treatment without a court order. Mandatory outpatient treatment is a preventative treatment for those who do not presently meet criteria for inpatient commitment. It should be used for patients who need treatment to prevent relapse or deterioration that would predictably lead to their meeting the inpatient commitment criteria in the foreseeable future [Ref. 20, p 3].

I cited earlier the Bazelon Center’s view on inpatient civil commitment. Here is their view on outpatient commitment:

The Bazelon Center also opposes all involuntary outpatient commitment as an infringement of an individual’s constitutional rights. Outpatient commitment is especially problematic when based on a: (1) prediction that an individual may become violent at an indefinite time in the future; (2) supposed “lack of insight” on the part of the individual, which is often no more than disagreement with the treating professional; (3) the potential for deterioration in the individual’s condition or mental status without treatment; (4)an assessment that the individual is “gravely disabled.” These criteria are not meaningful. They cannot be accurately assessed on an individual basis and are improperly rooted in speculation. Neither do they constitute imminent, significant physical harm to self or others, the only standard found constitutional by the Supreme Court. As a consequence, these are not legally permissible measures of the need for involuntary civil commitment—whether inpatient or outpatient—of any individual. 2

Again, there is a contrasting view from The Treatment Advocacy Center:

Perhaps the single most important reform needed to prevent the need for repeated hospitalization and to prevent the consequences of non-treatment is to encourage the use of assisted outpatient treatment. When appropriate, assisted outpatient treatment fosters treatment compliance in the community through a court-ordered treatment plan. Moreover, not only does the court commit the patient to the treatment system, it also commits the treatment system to the patient. 21

In outpatient commitment, it appears that we have come full circle.We have in the outpatient commitment debate what appears to be a recapitulation of the earlier inpatient debate, with the new statutory provisions becoming political footballs between opposing interested parties. Those in favor of outpatient commitment see it as an important tool in a range of options that are potentially useful in managing severely mentally ill individuals in a community setting. Those who oppose outpatient commitment see it as an infringement of liberty and as a financial drain on a mental health system already in crisis. They argue that dollars should be invested in proven intensive community treatment methods, not into further use of coercive approaches to treatment. This is the current state of affairs. Monahan et al. 22 summarized the current situation: “In many states a take-no-prisoners battle is under way between advocates of outpatient commitment—who call this approach assisted outpatient treatment— and its opponents—who use the term ‘leash laws’ ” (Ref. 22, p 1198).

Discussion

The evolution of modern civil commitment statutes is the story of interactions over time among state legislatures, lay and professional interest groups, and courts. The result, a functioning civil commitment statute, is a political statement that reflects compromises that exist at a particular moment. There is little doubt that these statutes raise passions along a philosophical spectrum ranging from those who view mental illness as the free expression of ideas and involuntary commitment as equivalent to a prison sentence, to those who see mental illness as a serious brain disease and involuntary commitment as the only means of obtaining treatment for those whose insight and judgment are greatly impaired by their illnesses. Another aspect of this long-standing debate is a focus on the availability and expenditure of funds for treatment programs. The underlying policy question of whether it is best to invest precious mental health dollars in implementing laws that confine the mentally ill or in much-needed intensive and voluntary services is always part of the discussion. There appears to be little room for compromise for many in this debate, and the options are often presented as either/or choices, rather than compromises.

It should be a given that a focus on law alone is not sufficient. On the one hand, few can argue with the premise that civil commitment without decent hospital and community mental health services is a situation that should not be tolerated. On the other hand, commitment laws remain an absolutely necessary component of a mental health system, if only for the smallest number of mentally ill in the community.

Years ago, I had the opportunity to observe a self- contained Native American community where there were no effective commitment laws. I evaluated a homicide offender from this community, which was governed by federal and tribal law, neither of which included a commitment statute. Prior to the homicide, the young man in question exhibited deteriorating mental functioning and was clearly becoming more violent. These facts were known to most everyone in his community. Significant attempts were made to have him enter voluntary treatment in an off-reservation psychiatric unit of a general hospital. All attempts failed, and the almost inevitable violent
event, a homicide, occurred.

This experience led us to investigate more fully the legal situation that exists on many Native American reservations not covered by state law, where the option of civil commitment did not exist or where it only existed by informal agreement between tribal and local or state government. 23 This situation existed (and may still exist) in many reservation communities. Ultimately we were able to solve the situation in Oregon with a statutory change to state law that gave the tribal government authority to access the Oregon commitment statutes through a provision permitting rural counties in Oregon to use “emergency commitment” as a method of entry into the civil commitment system. 24

This experience demonstrated to me that, no matter what could be provided in the way of services, there still will inevitably be situations in which civil commitment laws are absolutely necessary. A responsible position would advocate an approach to civil commitment that recognizes the need for such statutes, yet aims to reduce the necessity for their use. I understand that few responsible people would argue with me about the need for such statutes for situations similar to the one described in the Native American community—a situation that was clearly one of imminent dangerousness. However, I also believe that, in less dramatic-appearing situations, credible arguments can be made for outpatient civil commitment when a person’s life history clearly demonstrates the individual’s incapacity to care for himself or herself in a community setting. This means having statutes that are not so narrowly drawn as to be limited to imminent dangerousness.

The gradual development of dangerousness as the main focus for commitment has, in my opinion, had very negative consequences. The standard, “gravely disabled,” has been recognized for many years as a legitimate reason for civil commitment. The original Oregon commitment statute of 1862 defined a mentally ill person for the purposes of commitment as one who “is suffering from neglect, exposure or otherwise, or is unsafe to be at large, or is suffering under mental derangement” (Ref. 4). Were we a more caring society then than we are now? Probably not, although it is hard to argue against a statute that seeks to protect people from “suffering from neglect, exposure or otherwise.” The point is that society has long had an interest in protection of its vulnerable citizens,and there are few reasons to deviate from this long-held tradition.

Further, statutes that are written with broad language that allows holding allegedly mentally ill persons for a short time at the front end of the commitment process provide additional safeguards for individuals and for society. I have seen many situations in which individuals are in the midst of emotional crises and are hospitalized for short periods in precommitment status and in which these short hospitalizations have defused potentially inflammatory situations.

I have also seen the opposite. For example, I evaluated another homicide offender who, shortly after being informed by his wife that she was going to divorce him, was brought to an emergency room. He was very distraught but was not interested in voluntary admission, and, because of a strict interpretation of the statute, he was not considered appropriate for entry into civil commitment. Shortly after leaving the emergency room he killed his wife and attempted to kill himself. My point is that civil commitment statutes that are broadly drawn, at least at the front end, allow for the interplay of law and professional judgment, and it is this interplay of law and judgment that provides wider options and perhaps a better chance for good outcomes.

Outpatient commitment is now the major battleground in the civil commitment arena. Again, as this debate settles down, I hope we can come to view outpatient commitment more dispassionately—simply as another option, one among many available to psychiatrists and other mental health professionals.

Based on my experience and some of the empirical literature cited in this article, I argue for the usefulness of a well-structured approach to outpatient commitment. I have had personal experiences with several forms of structured outpatient treatment: a form of outpatient commitment related to the Oregon Psychiatric Security Review Board in its management of insanity acquittees 25 and the system of close monitoring and supervision of drug- and alcohol-dependent physicians carried on by the Oregon Board of Medical Examiners. 26

These are obviously different programs conceptually but they are similar in regard to the principles that define structured outpatient programs. There are restrictions in regard to what an individual in each program can do in the community. There are consequences for failure to adhere to the program, and there are positive outcomes that have resulted from these programs. Outpatient civil commitment can be viewed as the same approach, with the particular rules governed by the controlling statutes. If interested parties approached the concept from a more neutral position—that outpatient commitment is neither inherently good nor bad—there would be situations in which having this legal option would be quite beneficial.

Conclusion

We appear to be living at a time when civil commitment statutes are losing or have lost much of their former prominence. There are multiple reasons for this, not the least of which is the loss of inpatient psychiatric beds in state and local facilities, resulting in the greatly increased use of the criminal justice system as a major repository for many seriously mentally ill individuals. Focus has now shifted in many areas of the country away from civil commitment to a focus on jail diversion and court clinics. 27 Aside from outpatient debate, reform in civil commitment statutes now seems stagnant. I believe that, as we attempt to rebuild our mental health system capacity, it will again be time to have a major focus on the design of effective, and more up-to-date commitment laws.

Over the years, I have come to believe that those who toil in civil commitment are like those who tried to build the Tower of Babel and were cast into the wilderness, condemned to wander and to be unable to communicate.

And the LORD said, “Behold, they are one people and they all have the same language. And this is what they began to do, and now nothing which they purpose to do will be impossible for them.”

“Come, let Us go down and there confuse their language, that they may not understand one another’s speech.”

So the LORD scattered them abroad from there over the face of the whole earth; and they stopped building the city.

Therefore its name was called Babel, because there the LORD confused the language of the whole earth; and they stopped building the city. 28

Perhaps we will have another chance.

http://jaapl.org/content/32/4/430.full.pdf