A Design for an Interim Provision to Bridge the Actual Situation and Future Abolition of Involuntary Commitment
Below are several proposals for an interim provision which might last, for instance, ten years. Its purpose is to create alternatives and to gradually become accustomed to a new situation in which involuntary commitment is no longer an option. As far as I know such an attempt to gradually reduce involuntary commitment while sustaining voluntary hospitalization has never been made anywhere. Democratic psychiatry in Italy, for instance, proposed abolishing voluntary admissions along with involuntary commitment. The interim provision I propose may be able to prevent the drawbacks of a revolutionary transformation with the accompanying polarization of political positions. The project would have to be properly evaluated so that in addition to opinions there would be research results on which to base further policy.
The first proposal is to discourage involuntary commitment. This can be accomplished by posing stricter criteria for both diagnoses of psychiatric disorders and the formulation of the nature of the danger. Involuntary commitment should become less and less the culmination of measures aimed at resolving an existing situation. By that I mean a change in attitude. The current assumption is that an emergency should always be short-circuited, by coercion if necessary, in order to end it. It should be realized that it is sometimes better to not intervene.
Several elements from Stone’s five-step plan could serve as a guide here too although this plan was not received enthusiastically in the United States, in particular by lawyers. One such element is that the psychiatric condition must be described in a way that the judge can use certain standard criteria, using a coding system especially developed for the purpose* . This would compel the psychiatrist to formulate explicitly and precisely what is wrong with the patient (first step). The second step is asking to what extent the patient is suffering from his condition. The third step is determining whether there are effective treatments for this disorder, what they are, how long it can be expected to take for an effect to be noticeable, and what the nature of that effect will be. This all makes it possible for the judge to form an idea about the balance of advantages and disadvantages in each case that involuntary commitment is requested. In addition, the judge should be able to evaluate whether the nature and gravity of the danger posed make a criminal procedure more acceptable than a civil procedure. How much the person would benefit from the involuntary commitment should be explicitly considered. Van Eck notes that very little is known about the effects of involuntary commitment while this information is essential for properly evaluating it. Instead of Stone’s fourth and fifth steps, the person requesting the involuntary commitment could be asked why in this case alternatives to involuntary commitment would not suffice. Of course in acute emergencies it will as a rule not always be possible to ask all these questions. But every patient should have the opportunity of addressing the judge a few days after commencement of the involuntary commitment. These steps should then serve as a guide to the judge’s decision.
A second proposal is introducing a 24-hour delay between the moment of onset of the emergency and the inception of the involuntary commitment. This proposal is intended to prevent involuntary commitment from being used to intervene in emergencies. After all, such intervention implies that the emergency is caused by one person, or in any case that that person is blamed for it, as that is the individual who is chosen to be committed. The point is making clear that the object of involuntary commitment is removing from society people who are at risk due to a psychiatric disorder . The object should not be to resolve social emergencies. Involuntary commitment should not be usable for that purpose. The 24-hour delay can serve to clarify that emergencies should be resolved some other way. It can also serve to form the basis of an intensive therapeutic relationship, whether in an out-patient setting, or, if the patient wishes, in clinical crisis intervention. The developing so-called 7 x 24 hours available services could be adapted for this. This measure could be introduced in phases as not yet all districts in the Netherlands have the facilities sketched here.
A third proposal is to further research the notable phenomenon that involuntary commitment is quite often continued on a voluntary basis** . Kane et al in their research on changing attitudes regarding involuntary commitment also note the deficit of relevant statistics. Gaining insight into this apparent paradox will no doubt produce strategies that can be used to avoid involuntary commitment.
A fourth proposal is that those who are caring for and treating patients should be strictly separated from those who are participating in the process of attaining involuntary commitment. This is mainly to ensure that therapists will devote all their attention to the treatment and to prevent preoccupations that hinder treatment or even impair it. Backing up the patient, the therapist must be free to offer a variety of assistance and treatment courses without their acceptance or rejection having consequences for the hospitalization. Separation of treatment and regulation (Chapter VI, 5) is logically followed by separation of treatment and involuntary commitment procedures. The reasoning is the same, mutatis mutandis. Patients are in an extraordinarily difficult position. It is in principle wrong that therapists are the same people as the ones detaining them. The law’s requiring therapists to assess patients’ dangerousness puts them in a position of double preoccupation even without the enormous problems of assessing “possible serious danger.” It furthermore requires therapists to combine two incompatible roles. On the side, I consider separation of treatment and involuntary commitment procedures essential in general and not only for this proposal. Finally, an important argument is that this separation prevents the accumulation of power in one person (or team). The Patients’ Movement of the Netherlands in its Manifest has also stressed the need for impartiality regarding those professionals who advise judges on the desirability or necessity of involuntary commitment. Rubin advocates this as well, and Stone comments, “Legal reform has consistently undermined the therapeutic role and forced the psychiatrist into the role of policeman.”
Nieboer’s proposal to employ special experts who are not involved with treatment, so-called imputation psychopathologists, deserves special attention in this respect. Although Nieboer was seeking a solution to a different problem, namely providing information to a judge regarding a committed crime, his reasoning applies to involuntary commitment as well, as also in this case the psychiatric expert submits a report to a judge. Nieboer posits that such reporting has its own ethics. In the first place, the question being asked must be clear. Secondly, the report should provide only information about subjects that are clearly related to the questions asked. Thirdly, making the person into an object must be avoided. Fourthly, the relationship with the reporting professional should be explicitly structured in spite of the disadvantage of a less than ideal relationship, rather than accepting the development of a relationship of trust based on presumed professional confidentiality which the reporting professional will subsequently violate.
Imputation psychopathologists are not only experts on reporting. Due to their close working relationship with judges they are suited to “translate” psychiatric frames of reference to legal ones, thus minimizing misunderstandings. Nieboer’s proposal has such important advantages, both in principle and pragmatically, that it is surprising that official policy has not (yet) adopted it.
A fifth proposal is attempting to describe as exactly and operationally as possible what is meant by danger in respect of involuntary commitment laws. Certain criteria should be more thoroughly described such as must the danger be posed to persons? How great must the danger be? How immediate is it? Exactly what type of danger is meant? How does the person’s behavior reflect this danger? This would prevent vague and general notions from sufficing as the basis of a decision. The judge would have several clear criteria on which to base his judgment. There would be more uniformity in the decisions.
A sixth proposal is dropping the criterion of danger to property. When a crime has been committed the proper channel is criminal law, not civil law. When there has been no crime there is insufficient reason for involuntary commitment.
A seventh proposal is treating so-called non-opposing patients, those who are mutistic, confused, stuporous, or otherwise incapable of indicating whether or not they consent to treatment -– excepting the elderly (see 3.3) – the same as those who are unconscious. There is unanimity about the desirability of transporting people in such states to the hospital to be treated unit they can make their wishes known. At the same time the rights of these non-opposing patients should be guaranteed.
An eighth proposal is dedicating a portion of the Mental Health Service’s budget for prevention to researching methods that can prevent involuntary commitment. A fact which can be observed in practice is that when the psychiatrist on duty has plenty of time to talk to the patient involuntary commitment often turns out to be unnecessary. Measures and agreements in the out-patient setting or voluntary admittance suffice. Parallel to that, it is strongly advisable to make admittance wards of psychiatric hospitals units that can offer intensive care in the sense of extremely intensive guidance. Experience has demonstrated that with such intensive guidance coercion is rarely necessary.
A ninth proposal is to start a program of research around the involuntary commitment procedure so that the accompanying events can be evaluated. One point of evaluation would be whether, in retrospect, the criterion of danger is maintained in the way intended by involuntary commitment laws. This would not be so much to point out mistakes but rather to dispel the illusion that the law is a good law while in reality improvisations are constantly being made. A further point worth investigating is whether the result of this interim provision will be fewer involuntary commitments and at the same time proportionately more criminal procedures as was experienced in the United States. An important indication of such a shift would be that many psychiatric patients are winding up in prisons for trivial crimes.
This way it will be possible not only to determine further policy on the basis of all sorts of ethical, psychiatric, legal, and political theories at the end of the trial period, but also on the basis of fact about the actual effects of the measures.
A tenth proposal is that involuntary commitment upon the person’s own request must remain possible, albeit maintained as a legal measure enabling a person to become eligible for a treatment which is difficult to access. I am referring here in particular to treatments that can be obtained only under very special circumstances or which are too risky on a voluntary basis. For instance, intensive individual treatments as provided in clinics for criminal psychiatry are accessible only to people who were sentenced to such a clinic after having committed a crime. Such treatments are not available anywhere else in the Netherlands. Involuntary commitment at the patient’s request should provide the opportunity for someone who was not sentenced for such a crime to access the same treatment. Obviously, there would have to be guarantees that the person truly needs such a treatment and that the involuntary commitment is linked to that specific treatment plan. This possibility should remain after termination of the period of interim provision.
These ten proposals should make it possible within the space of the suggested ten years to reduce the incidence of involuntary commitment to a fraction of what it is today.
At the end of this period the reasons making involuntary commitment necessary in the remaining cases should be investigated. On the basis of such investigation measures can be designed making it possible to gradually abolish involuntary commitment entirely. Whether or not special procedures for exceptional circumstances would still be necessary could be considered.
*In his book Stone provides a few examples which would have to be altered somewhat to make them suitable for the Netherlands. – J.P.
**In 1974 there were 1464 short-term involuntary commitments of which 1080 were continued voluntarily! -J.P.
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