Encyclopedia of Psychology and Law

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When an individual is not mentally ill and when

hospitalization is not therapeutically appropriate, hos-

pitalization should not be permitted as a matter of due

process (Winick, 2005). Even though many state civil

commitment statutes may not explicitly require this

determination, they often will condition commitment

on its being in the “best interests” of the individual or

require a finding that hospitalization is appropriate in

the circumstances. In any event, this limitation would

seem to be required as a matter of due process. Unless

the individual suffers from a treatable mental disorder,

psychiatric hospitalization should not be permitted.

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Even if a police power or parens patriae power

rationale justifies civil commitment, hospitalization

must also be found to be the least restrictive means of

accomplishing the state’s interests in protecting the

individual or the community. This limitation is man-

dated by due process, as well as by a majority of state

commitment statutes. Under this principle, the court

must consider whether less restrictive community

placements are available for the individual that would

suffice to meet his and the community’s needs.

Moreover, even if hospitalization is deemed to be

required, once the individual’s needs can be met

through community treatment, the least restrictive

alternative principle would require conditional release

from the hospital to such community treatment.

Hospitalization should be resorted to only if it is nec-

essary. When its purposes can be accomplished

through outpatient treatment, partial hospitalization,

or other forms of treatment in the community, the sig-

nificant deprivation of liberty that hospitalization rep-

resents would be inappropriate.

The Civil Commitment Hearing

The commitment criteria will be applied at a hearing

before a judge or a hearing examiner, where the state

will have the burden of persuasion concerning satis-

faction of these standards. At the hearing, the individ-

ual will be given the opportunity to cross-examine the

state’s clinical experts and submit his or her own

expert witnesses and other evidence in rebuttal of the

state’s case. These and other procedural elements are

constitutionally required as a matter of procedural due

process. State statutes typically describe the proce-

dures that must be followed at the hearing. These

include notice and a formal hearing before involuntary

hospitalization may be authorized, or shortly there-

after when commitment is sought on an emergency

basis. They also include the right to have an appointed

attorney, the right to have a fair and impartial judge or

hearing examiner, and the right to be present. The

state must bear the burden of persuasion by clear and

convincing evidence.

Even though state statutes require a fairly formal

adversarial judicial hearing, in practice these hearings

tend to be brief and informal rituals at which the judge

seems overwhelmingly to defer to the state’s expert wit-

nesses. Rather than playing the adversarial role con-

templated by due process, some attorneys engage in

only perfunctory advocacy, with the result that the

process often appears to the patient to be a farce and a

sham. This undermines the purposes of due process—

to increase accuracy and allow a sense of participation.

The result can be an affront to the patient’s dignity, pro-

ducing the feeling that he or she has been treated in bad

faith, with potentially negative consequences for the

efficacy of hospitalization and treatment. As a result,

considerations of therapeutic jurisprudence would sug-

gest that to the extent these practices continue to exist,

they be altered in ways designed to achieve the partici-

patory and dignitary value of due process.

Bruce J. Winick

See also Forcible Medication; Mental Health Law; Patient’s

Rights; Risk Assessment Approaches; Sex Offender Civil

Commitment; Therapeutic Jurisprudence

Further Readings

Winick, B. J. (2005). Civil commitment: A therapeutic

jurisprudence model. Durham, NC: Carolina Academic

Press.

CLASSIFICATION OF

VIOLENCERISK(COVR)

The Classification of Violence Risk (COVR) is an

interactive software program designed to estimate the

risk that an acute psychiatric patient will be violent to

92 ———Classification of Violence Risk (COVR)

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