“dangerous to self or others.” The avoidance of danger
to self constitutes an application of the state’s parens
patriae power; the avoidance of danger to others con-
stitutes an expression of its police power in protecting
the community from harm.
Parens patriae commitment is paternalistic in
nature. It is based on the inability of the individual, as
a result of mental illness, to understand the need for
care and treatment in a hospital. The purpose is to pro-
tect the individual from harm and to improve his or
her health. This form of commitment contemplates
both that the individual suffers from a cognitive
impairment that significantly impairs rational decision
making and that hospitalization would be in his or her
best interests.
An essential aspect of parens patriae commitment
is the incompetency of the patient. Yet some state
statutes fail to explicitly require a determination of
incompetency. Because such incompetency is a his-
toric requirement for invocation of the parens patriae
power, however, courts will read this requirement into
the statute to satisfy constitutional requirements.
Publicly labeling an individual as incompetent is stig-
matizing, and it often imposes negative self-attributional
effects on the patient that may undermine perfor-
mance and motivation and cause a form of depression.
As a result, incompetency should be narrowly defined,
and a presumption should exist in favor of compe-
tency. Many state statutes so provide. The concept of
competency is rarely defined with precision. It typi-
cally requires the ability to make a decision, under-
stand treatment information, rationally manipulate it,
and appreciate the implications and consequences of
alternative options. Requiring a high level of ability in
these respects, however, seems unreasonable, particu-
larly since many patients who are not mentally ill lack
these abilities. Mental illness alone, even schizophre-
nia, does not equate with incompetence. Many
patients with mental illness requiring hospitalization
will possess sufficient competence to make the deci-
sion for themselves. Only if they have been deter-
mined to be so grossly impaired cognitively that their
decisions are not worthy of respect should patients be
found sufficiently incompetent to justify parens
patriae commitment.
Commitment based on dangerousness to others
constitutes an application of the state’s police power
interest in protecting the community. Some people suf-
fering from mental illness may be dangerous to others.
Dangerousness alone cannot justify commitment,however—many people are dangerous but not men-
tally ill. We typically use the criminal sanction to deal
with such dangerousness, requiring an adjudication of
guilt before punishment may be applied. Only rarely in
our constitutional system is preventive detention per-
mitted. Police power civil commitment is one of these
rare exceptions.
In addition to dangerousness, it must be shown that
the individual’s mental disability significantly impairs
the ability to control his or her behavior. In the context
of sex offender civil commitment, the Supreme Court
has required that to justify commitment, the individ-
ual’s disability must make it difficult to control behav-
ior. To justify civil commitment on police power
grounds, it therefore must be shown that the individ-
ual’s mental disability seriously diminishes volitional
control. This requirement is not reflected in typical
civil commitment statutes, but courts will mandate it
as a constitutional matter.
To meet the criteria for police power commit-
ment, the individual must be both mentally ill and
predicted to be dangerous. State statutes frequently
are ambiguous concerning the degree of dangerous-
ness that must be found to exist. As a constitutional
matter, such dangerousness should be predicted to be
likely to occur within a reasonable time in order to
justify hospitalization, and the danger to be avoided
must be sufficiently serious to justify this significant
intrusion on liberty. Involuntary hospitalization is
not justified merely to protect the community from
the inconvenience or personal offense of being con-
fronted by someone with mental illness. The danger
to be avoided must be a serious one. Certainly, the
prevention of physical injury would qualify. Some
state statutes permit commitment based on danger to
property alone, either expressly or by leaving the
term dangerousnessundefined. Some civil commit-
ment statutes require that the danger to be prevented
be imminent, but many do not. Some courts have
imposed an imminence requirement, but others have
declined to do so.
When dangerousness is the basis for commitment,
it must be supported by the testimony of clinical
expert witnesses who have evaluated the individual.
Clinical prediction of dangerousness, however, is
probably accurate in no more than one out of every
two cases. In recent years, risk assessment instru-
ments have increasingly been used to supplement and
anchor clinical prediction, thereby producing a higher
degree of accuracy.Civil Commitment——— 91C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 91