The imposition of substantive and procedural protections in the civil commitment process thirty years ago created the expectation that courts would scrutinize commitment decisions by psychiatrists more closely and serve as a check on psychiatric decision-making. This has not happened.
Today, psychiatrists continue to play an overly influential role in the civil commitment process. Psychiatrists make initial commitment decisions that often lack accuracy because they rely on clinical judgment only. Furthermore, many psychiatrists do not want legal standards interfering with treatment decisions, and the nebulous nature of the concept of dangerousness enables doctors to make pretextual assessments of danger. At civil commitment hearings, lawyers for patients often fail to vigorously represent their clients. Judges continue to defer, almost blindly, to expert testimony. The result, no doubt, has been the confinement of nondangerous mentally ill individuals.
Numerous steps can be taken to help lessen the inappropriate influence of psychiatrists. First, psychiatrists can engage in structured risk assessment evaluations. Next, courts can, as a matter of right, provide expert assistance to patients in a way that will not significantly delay civil commitment proceedings. Furthermore, courts should prohibit expert opinion testimony on dangerousness based on clinical judgment alone. Finally, patients' lawyers can systematically appeal civil commitment decisions to facilitate the development of a body of law that can serve to clarify what mental states and conduct constitute a sufficient level of dangerousness as to warrant involuntary hospitalization.
86 N.D. L. Rev. 259 (2010)
86 N.D. L. Rev. 259