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PARENS PATRIAEDOCTRINE

Parens patriae translates from the Latin as “father of

the people” and is the legal principle that allows the

state to intercede on behalf of juveniles, those who are

mentally ill, and others who are unable to protect

themselves. The parens patriae doctrine was first enun-

ciated in English common law and referred to the king

as exercising protective functions in his role as “father

of the country.” The parens patriae doctrine should not

be confused with the in loco parentis doctrine, which

is more temporary in nature and not limited to govern-

mental entities. It should also be noted that in the

United States parens patriae power is a state govern-

ment’s exercise of power and not one that can be exer-

cised by the federal government. The doctrine was

conceived as a benevolent intercession by the govern-

ment and addressed the obligations of the government

to protect individuals. However, because this doctrine

allows the usurpation of the rights of natural parents

and legal guardians, as well as individuals deemed

incapacitated, it has generated controversy on several

fronts with regard to the limits of those powers.

Civil Commitment

Civil commitment proceedings, in which the mentally

ill are held in a restrictive setting for treatment, appear

to have been the earliest exercise of parens patriae

power. Until the 1960s, there were few restrictions on

the states’ exercise of paternalistic benevolence in

dealing with the mentally ill. At that time, however,

questions arose with regard to the truncation of civil

liberties that occurred with incarceration for mental ill-

ness and whether or not the state was necessarily act-

ing in a citizen’s best interests. Challenges to civil

commitment proceedings revolved around the state’s

reliance on the medical model in determining when a

mentally ill individual met criteria for incarceration

and whether commitment was, in fact, in an individ-

ual’s best interests given the conditions and lack of

treatment in mental institutions. Issues were also

raised as to whether commitment proceedings unrea-

sonably deprived citizens of due process, particularly

in situations where the deprivation of rights for the

mentally ill was greater than for individuals who were

dealt with through the criminal system. Reforms in

civil commitment proceedings have considerably nar-

rowed the state’s ability to intercede on behalf of the

mentally ill and have replaced the assumption of

benevolence with the recognition that the state can

only deprive individuals of liberty through due process

of law. While the state’s parens patriae power allows

the state to make decisions regarding mental health

treatment, the extent of intrusion is limited to “reason-

able and necessary treatment.”

Juvenile Law

The evolution of juvenile courts is also intimately con-

nected with the parens patriae concept and is another

arena in which challenges have generally resulted in a

more careful definition of when the state may inter-

cede and how. Originally, the parens patriae doctrine

gave the state power to intervene whenever this was

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