Tag: Mental Health Legislation

What was the Alaska Mental Health Enabling Act of 1956?

Published on by Andrew MarshallLeave a comment

Introduction

The Alaska Mental Health Enabling Act of 1956 (Public Law 84-830) was an Act of Congress passed to improve mental health care in the United States territory of Alaska. It became the focus of a major political controversy after opponents nicknamed it the “Siberia Bill” and denounced it as being part of a communist plot to hospitalise and brainwash Americans. Campaigners asserted that it was part of an international Jewish, Roman Catholic or psychiatric conspiracy intended to establish United Nations-run concentration camps in the United States.

The legislation in its original form was sponsored by the Democratic Party, but after it ran into opposition, it was rescued by the conservative Republican Senator Barry Goldwater. Under Goldwater’s sponsorship, a version of the legislation without the commitment provisions that were the target of intense opposition from a variety of far-right, anti-Communist and fringe religious groups was passed by the United States Senate. The controversy still plays a prominent role in the Church of Scientology‘s account of its campaign against psychiatry.

The Act succeeded in its initial aim of establishing a mental health care system for Alaska, funded by income from lands allocated to a mental health trust. However, during the 1970s and early 1980s, Alaskan politicians systematically stripped the trust of its lands, transferring the most valuable land to private individuals and state agencies. The asset stripping was eventually ruled to be illegal following several years of litigation, and a reconstituted mental health trust was established in the mid-1980s.

Background

Alaska possessed no mental health treatment facilities prior to the passage of the 1956 Act. At the time of the Act’s passage, Alaska was not a US state, being constituted instead as a territory of the United States. The treatment of the mentally ill was governed by an agreement with the state of Oregon dating back to the turn of the 20th century. On June 6, 1900, the United States Congress enacted a law permitting the government of the then District of Alaska to provide mental health care for Alaskans. In 1904, a contract was signed with Morningside Hospital, privately owned and operated by Henry Waldo Coe in Portland, Oregon, under which Alaskan mental patients would be sent to the hospital for treatment. A commitment regime was established under which a person said to be mentally ill was to be brought before a jury of six people for a ruling on insanity. The patient was routinely sent to prison until his release or transfer to Portland; at no point in this ruling was a medical or psychiatric examination required.

By the 1940s, it was recognised that this arrangement was unsatisfactory. The American Medical Association conducted a series of studies in 1948, followed by a Department of the Interior study in 1950. They highlighted the deficiencies of the program: commitment procedures in Alaska were archaic, and the long trip to Portland had a negative effect on patients and their families. In addition, an audit of the hospital contract found that the Sanatorium Company, which owned the hospital, had been padding its expenses. This had enabled it to make an excess profit of $69,000 per year (equivalent to over $588,000 per year at 2007 prices).

The studies recommended a comprehensive overhaul of the system, with the development of an in-territory mental health programme for Alaska. This proposal was widely supported by the public and politicians. At the start of 1956, in the second session of the 84th Congress, Representative Edith Green (D-Oregon) introduced the Alaska Mental Health Bill (H.R. 6376) in the House of Representatives. The bill had been written by Bob Bartlett, the Congressional Delegate from the Alaska Territory who later became a US Senator. Senator Richard L. Neuberger (D-Oregon) sponsored an equivalent bill, S. 2518, in the Senate.

Details of the Bill

The Alaska Mental Health Bill’s stated purpose was to “transfer from the Federal Government to the Territory of Alaska basic responsibility for the hospitalisation, care and treatment of the mentally ill of Alaska.” In connection with this goal, it aimed:

  • To modernise procedures for such hospitalisation (including commitment), care, and treatment and to authorise the Territory to modify or supersede such procedures;
  • To assist in providing for the Territory necessary facilities for a comprehensive mental-health programme in Alaska, including inpatient and outpatient facilities;
  • To provide for a land grant to the Territory to assist in placing the programme on a firm long-term basis; and
  • To provide for a ten-year programme, of grants-in-aid to the Territory to enable the Territory gradually to assume the full operating costs of the programme.


The bill provided for a cash grant of $12.5 million (about $94 million at 2007 prices) to be disbursed to the Alaskan government in a number of phases, to fund the construction of mental health facilities in the territory. To meet the ongoing costs of the programme, the bill transferred one million acres (4,000 km2) of federally owned land in Alaska to the ownership of the proposed new Alaska Mental Health Trust as a grant-in-aid—the federal government owned about 99% of the land of Alaska at the time. The trust would then be able to use the assets of the transferred land (principally mineral and forestry rights) to obtain an ongoing revenue stream to fund the Alaskan mental health programme. Similar provisions had applied in other US territories to support the provision of public facilities prior to the achievement of statehood.

In addition, the bill granted the Governor of Alaska authority to enter into reciprocal mental health treatment agreements with the governors of other states. Alaskans who became mentally ill in the lower 48 states would be properly treated locally until they could be returned to Alaska; likewise, citizens of the lower 48 who fell mentally ill in Alaska would receive care there, before being returned to their home states.

The bill was seen as entirely innocuous when it was introduced on 16 January 1956. It enjoyed bipartisan support, and on January 18 it was passed unanimously by the House of Representatives. It then fell to the Senate to consider the equivalent bill in the upper chamber, S. 2518, which was expected to have an equally untroubled passage following hearings scheduled to begin on 20 February.

Controversy

Initial Opposition

In December 1955, a small anti-communist women’s group in Southern California, the American Public Relations Forum (APRF), issued an urgent call to arms in its monthly bulletin. It highlighted the proposed text of the Alaska Mental Health Bill, calling it “one that tops all of them”. The bulletin writers commented: “We could not help remembering that Siberia is very near Alaska and since it is obvious no one needs such a large land grant, we were wondering if it could be an American Siberia.” They said that the bill “takes away all of the rights of the American citizen to ask for a jury trial and protect him[self] from being railroaded to an asylum by a greedy relative or ‘friend’ or, as the Alaska bill states, ‘an interested party’.”

The APRF had a history of opposing mental health legislation; earlier in 1955, it had played a key role in stalling the passage of three mental health bills in the California Assembly. It was part of a wider network of far-right organizations which opposed psychiatry and psychology as being pro-communist, anti-American, anti-Christian and pro-Jewish. The Keep America Committee, another Californian “superpatriot” group, summed up the anti-mental-health mood on the far right in a pamphlet issued in May 1955. Calling “mental hygiene” part of the “unholy three” of the “Communistic World Government”, it declared: “Mental Hygiene is a subtle and diabolical plan of the enemy to transform a free and intelligent people into a cringing horde of zombies”.

The APRF’s membership overlapped with that of the much larger Minute Women of the U.S.A., a nationwide organisation of militant anti-communist housewives which claimed up to 50,000 members across the United States. In mid-January 1956, Minute Woman Leigh F. Burkeland of Van Nuys, California issued a bulletin protesting against the bill. It was mimeographed by the California State Chapter of the Minute Women and mailed across the nation. On 24 January 1956, the strongly anti-statist Santa Ana Register newspaper reprinted Burkeland’s statement under the headline, “Now — Siberia, U.S.A.” Burkeland issued a lurid warning of what the future might hold if the Alaska Mental Health Bill was passed by the Senate:

Is it the purpose of H.R. 6376 to establish a concentration camp for political prisoners under the guise of treatment of mental cases? The answer, based on a study of the bill, indicates that it is entirely within the realm of possibility that we may be establishing in Alaska our own version of the Siberia slave camps run by the Russian government. … This legislation, say its opponents, will place every resident of the United States at the mercy of the whims and fancies of any person with whom they might have a disagreement, causing a charge of ‘mental illness’ to be placed against them, with immediate deportation to SIBERIA, U.S.A!

Further Opposition

After the Santa Ana Register published its article, a nationwide network of activists began a vociferous campaign to torpedo the Alaska Mental Health Bill. The campaigners included, among other groups and individuals, the white supremacist Rev. Gerald L.K. Smith; Women for God and Country; the For America League; the Minute Women of the U.S.A.; the right-wing agitator Dan Smoot; the anti-Catholic former US Army Brigadier General Herbert C. Holdridge; and L. Ron Hubbard’s Church of Scientology, which had been founded only two years earlier.

Increasingly strong statements were made by the bill’s opponents through the course of the spring and summer of 1956. In his 17 February bulletin, Dan Smoot told his subscribers: “I do not doubt that the Alaska Mental Health Act was written by sincere, well-intentioned men. Nonetheless, it fits into a sinister pattern which has been forming ever since the United Nations was organized.” Dr. George A. Snyder of Hollywood sent a letter to all members of Congress in which he demanded an investigation of the Alaska Mental Health Bill’s proponents for “elements of treason against the American people behind the front of the mental health program”. The Keep America Committee of Los Angeles similarly called the proponents of the bill a “conspiratorial gang” that ought to be “investigated, impeached, or at least removed from office” for treason. Retired brigadier general Herbert C. Holdridge sent a public letter to President Dwight Eisenhower on 12 March, in which he called the bill “a dastardly attempt to establish a concentration camp in the Alaskan wastes”. He went on:

This bill establishes a weapon of violence against our citizenry far more wicked than anything ever known in recorded history — far worse than the Siberian prison camps of the Czars or the Communists, or the violence of the Spanish Inquisition … The plot of wickedness revealed in this bill fairly reeks of the evil odor of the black forces of the Jesuits who dominate the Vatican, and, through officiates in our Government, dominate our politics.

For their part, America’s professional health associations (notably the American Medical Association and American Psychiatric Association) came out in favour of the bill. There was some initial opposition from the Association of American Physicians and Surgeons, a small and extremely conservative body which opposed socialized medicine; Dr. L. S. Sprague of Tucson, Arizona said in its March 1956 newsletter that the bill widened the definition of mental health to cover “everything from falling hair to ingrown toenails”. However, the association modified its position after it became clear that the AMA took the opposite view.

By March 1956, it was being said in Washington, D.C. that the amount of correspondence on the bill exceeded anything seen since the previous high-water mark of public controversy, the Lend-Lease Act of 1941. Numerous letter-writers protested to their Congressional representatives that the bill was “anti-religious” or that the land to be transferred to the Alaska Mental Health Trust would be fenced off and used as a concentration camp for the political enemies of various state governors. The well-known broadcaster Fulton Lewis described how he had “received, literally, hundreds of letters protesting bitterly against the bill. I have had telephone calls to the same effect from California, Texas and other parts of the country. Members of Congress report identical reactions.” A letter printed in the Daily Oklahoman newspaper in May 1956 summed up many of the arguments made by opponents of the bill:

The advocates of world government, who regard patriotism as the symptom of a diseased mind, took a step closer to their goal of compulsory asylum ‘cure’ for opponents of UNESCO, when, on January 18, the U.S. House of Representatives passed the Alaska Mental Health Act.

The Act was prepared by the U.S. Department of Justice, Department of the Interior and the socialist-oriented Department of Health, Education and Welfare. It closely follows the Model Code, drafted by the American Psychiatric association, which has been working with the World Health Organization, a specialized agency of the United Nations …

All of you who don’t want members of your family railroaded to an asylum had better start writing your senator, now.

During February and March 1956, hearings were held before the Senate Subcommittee on Territories and Insular Affairs. Proponents and opponents of the bill faced off in a series of tense exchanges, with strong accusations being made against the people and groups involved in the bill’s introduction. Stephanie Williams of the American Public Relations Forum said that the bill would enable Russia to reclaim its former Alaskan territory: “[It] contains nothing to prevent Russia from buying the entire million acres — they already say Alaska belongs to them.”

Mrs. Ernest W. Howard of the Women’s Patriotic Committee on National Defence castigated the slackness of Congress for not picking up on the bill’s perceived dangers: “Those of us who have been in the study and research work of the United Nations, we feel that we are experts in this … you as Senators with all the many commitments and the many requirements, are not able to go into all these things.” John Kaspar, a White Citizens’ Council organiser who had achieved notoriety for starting a race riot in Clinton, Tennessee, declared that “almost one hundred percent of all psychiatric therapy is Jewish and about eighty percent of psychiatrists are Jewish … one particular race is administering this particular thing.” He argued that Jews were nationalists of another country who were attempting to “usurp American nationality”.

Passing the Bill

The arguments of the bill’s opponents attracted little support in the Senate. The Eisenhower administration, the Alaska territorial government and mainstream religious groups were all in favour of the bill. The Alaska Presbyterian Church gave the bill its unanimous support, issuing a statement declaring: “As Christian citizens of Alaska we believe this is a progressive measure for the care and treatment of the mentally ill of Alaska. We deplore the present antiquated methods of handling our mentally ill.” It also urged the National Council of Churches to mobilise support for the bill. An overwhelming majority of senators of both parties were also supportive. The bill’s original author, Alaska Delegate Bob Bartlett, spoke for many of the bill’s proponents when he expressed his bafflement at the response that it had received:

I am completely at a loss in attempting to fathom the reasons why certain individuals and certain groups have now started a letter-writing campaign … to defeat the act. I am sure that if the letter writers would consult the facts, they would join with all others not only in hoping this act would become law but in working for its speedy passage and approval.

Other senators expressed similar mystification at the agitation against the bill. Senator Henry M. Jackson of Washington stated that he was “at a loss” to see how the bill affected religion, as its opponents said. Senator Alan Bible of Nevada, the acting chairman of the Subcommittee on Territories and Insular Affairs, told the bill’s opponents that nothing in the proposed legislation would permit the removal of any non-Alaskan to the territory for confinement.

Republican Senator Barry Goldwater of Arizona proposed an amended bill that removed the commitment procedures in Title I of the House bill and stated that “Nothing in this title shall be construed to authorize the transfer to Alaska, pursuant to any agreement or otherwise, of any mentally ill person who is not a resident of Alaska.” In effect, this eliminated the bill’s most controversial element—the provision for the transfer of mental patients from the lower 48 states to Alaska. The final recommendation of the Senate Committee on Interior and Insular Affairs followed Goldwater’s lead that the bill be amended to strike all the controversial “detailed provisions for commitment, hospitalization, and care of the mentally ill of Alaska” included in Title I of the original House bill. This amended proposal left only the transfer of responsibility for mental health care to the territory of Alaska and the establishment of land grants to support this care. The committee stressed that they were not invalidating the Title I provisions of the original bill but that they had been misunderstood, a recurrent theme in supporters of the bill:

However, the proposed provisions were misunderstood by many persons in parts of the country other than Alaska. Partly as a result of this misunderstanding, but more because the members of the committee are convinced that the people of Alaska are fully capable of drafting their own laws for a mental health program for Alaska, the committee concluded that authority should be vested in them in this field comparable to that of the States and other Territories.

Thus amended, the Senate bill (S. 2973) was passed unanimously by the Senate on 20 July after only ten minutes of debate.

Aftermath

Following the passage of the act, an Alaska Mental Health Trust was set up to administer the land and grants appropriated to fund the Alaskan mental health program. During the 1970s, the issue of the trust’s land became increasingly controversial, with the state coming under increasing pressure to develop the land for private and recreational use. In 1978, the Alaska Legislature passed a law to abolish the trust and transfer the most valuable parcels of lands to private individuals and the government. By 1982, 40,000 acres (160 km2) had been conveyed to municipalities, 50,000 acres (200 km2) transferred to individuals, and slightly over 350,000 acres (1,400 km2) designated as forests, parks or wildlife areas. Around 35% of the land trust remained unencumbered and in state ownership.

In 1982, Alaska resident Vern Weiss filed a lawsuit on behalf of his son, who required mental health services that were not available in Alaska. The case of Weiss v State of Alaska eventually became a class action lawsuit involving a range of mental health care groups. The Alaska Supreme Court ruled in 1985 that the abolition of the trust had been illegal and ordered it to be reconstituted. However, as much of the original land had been transferred away, the parties had to undergo a long and complex series of negotiations to resolve the situation. A final settlement was reached in 1994 in which the trust was reconstituted with 500,000 acres (2,000 km2) of original trust land, 500,000 acres (2,000 km2) of replacement land, and $200 million to replace lost income and assets.

Scientology and the Alaska Mental Health Bill

The Alaska Mental Health Bill plays a major part in the Church of Scientology’s account of its campaign against psychiatry. The Church participated in the campaign against the bill and still refers to it as the “Siberia Bill”. Scientology may also have provided an important piece of the “evidence” which the anti-bill campaigners used — a booklet titled Brain-Washing: A Synthesis of the Russian Textbook on Psychopolitics.

Miscavige on Nightline

Similarly, David Miscavige, the church’s leader, in 1992 told Ted Koppel in an interview on the Nightline programme:

I don’t know if you’re aware that there was a plan in 1955 in this country, Ted, to repeat what was done in Russia. There was going to be a Siberia, USA, set up on a million acres in Alaska to send mental patients. They were going to lessen the commitment laws, you could basically get into an argument with somebody and be sent up there. This sounds very odd. Nobody’s ever heard about it. That’s in no small part thanks to the Church of Scientology. I must say, though, that when that bill was killed in Congress, the war was on with psychiatry where they declared war on us … It was a major, major, major flap for the psychiatrists when it got voted down, because then the slogan around the country began, ‘Siberia, USA,’ and it was really the first time that psychiatry had been denigrated publicly, that they weren’t the science that they had been promoting themselves to be. And they took it upon themselves then to start dealing with anybody who would oppose them.

Conspiracy Theories

In Ron’s Journal 67, Hubbard identified “the people behind the Siberia Bill”, who he asserted were:

less than twelve men. They are members of the Bank of England and other higher financial circles. They own and control newspaper chains, and they are, oddly enough, directors in all the mental health groups in the world which have sprung up. Now these chaps are very interesting fellows: They have fantastically corrupt backgrounds; illegitimate children; government graft; a very unsavory lot. And they apparently, sometime in the rather distant past, had determined on a course of action. Being in control of most of the gold supplies of the planet, they entered upon a program of bringing every government to bankruptcy and under their thumb, so that no government would be able to act politically without their permission.

According to David Miscavige, the bill was the product of a conspiracy by the American Psychiatric Association. In a public address in 1995, he told Scientologists that it was “in 1955 that the agents for the American Psychiatric Association met on Capitol Hill to ram home the infamous Siberia Bill, calling for a secret concentration camp in the wastes of Alaska.” It was “here that Mr. Hubbard, as the leader of a new and dynamic religious movement, knocked that Siberia Bill right out of the ring — inflicting a blow they would never forget.” The assertion that Scientologists defeated the bill is made frequently in Scientology literature. In fact, the original version of the bill with the offending Title I commitment provisions only passed the House of Representatives; it was subsequently amended in conference to strike the commitment portion and retain the transfer of responsibility for mental health care. The revised bill passed easily without further changes.

Contemporary Publications

Contemporary Church publications suggest that although Hubbard was tracking progress of the bill at least as early as February 1956, Scientology did not become involved in the controversy until the start of March 1956, over two months after the American Public Relations Forum had first publicized the bill. A March “Professional Auditor’s Bulletin” issued by Hubbard, who was staying in Dublin at the time, includes a telegram from his Washington-based son L. Ron Hubbard, Jr. and two other Scientologists alerting him to the upcoming February Senate hearings:

HOUSE BILL 6376 PASSED JANUARY 18TH STOP GOES SENATE NEXT WEEK STOP BILL PERMITS ADMISSION OF PERSON TO MENTAL INSTITUTION BY WRITTEN APPLICATION OF INTERESTED PERSON BEFORE JUDICIAL PROCEEDINGS ARE HELD STOP DISPENSES WITH REQUIREMENT THAT PATIENT BE PRESENT AT HEARING STOP ANYONE CAN BE EXCLUDED FROM HEARING STOP BILL PERTAINS TO ALASKA AT MOMENT STOP BILL SETS UP ONE MILLION ACRES SIBERIAL [sic] IN ALASKA FOR INSTITUTIONS STOP LETTER AND BILL FOLLOW STOP WHAT ACTION YOU WANT TAKEN.

Although the church says that Scientologists led the opposition to the bill, the Congressional Record’s account of the Senate hearings into the bill does not mention the church. A contemporary review of the opposition to the bill likewise attributes the lead role elsewhere and to right-wing groups, rather than the “civil liberties” organisations cited by the church:

Only a few organized groups got behind the hue and cry. Most influential was the libertarian Association of Physicians and Surgeons, and Dan Smoot’s newsletter. Right-wing groups bombarded Congress with protests and demands for hearings.

This page is based on the copyrighted Wikipedia article < https://en.wikipedia.org/wiki/Alaska_Mental_Health_Enabling_Act >; it is used under the Creative Commons Attribution-ShareAlike 3.0 Unported License (CC-BY-SA). You may redistribute it, verbatim or modified, providing that you comply with the terms of the CC-BY-SA.

What is Olmstead v .L.C. (1999)?

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Introduction

Olmstead v. L.C., 527 U.S. 581 (1999), is a United States Supreme Court case regarding discrimination against people with mental disabilities.

The Supreme Court held that under the Americans with Disabilities Act, individuals with mental disabilities have the right to live in the community rather than in institutions if, in the words of the opinion of the Court, “the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”

The case was brought by the Atlanta Legal Aid Society, Inc.

Background

Tommy Olmstead, Commissioner, Georgia Department of Human Resources, et al. v. L. C., by Zimring, guardian ad litem and next friend, et al. (Olmstead v. L.C.) was a case filed in 1995 and decided in 1999 before the United States Supreme Court. The plaintiffs, L.C. (Lois Curtis) and E.W. (Elaine Wilson, deceased 04 December 2005), two women were diagnosed with schizophrenia, intellectual disability and personality disorder. They had both been treated in institutional settings and in community based treatments in the state of Georgia.

  • Guardian ad litem: A legal guardian is a person who has been appointed by a court or otherwise has the legal authority to care for the personal and property interests of another person, called a ward.
  • Next Friend: In common law, a next friend is a person who represents another person who is underage, or, because of disability or otherwise, is unable to maintain a suit on his or her own behalf and who does not have a legal guardian. Also known as litigation friends.

Following clinical assessments by state employees, both plaintiffs were determined to be better suited for treatment in a community-based setting rather than in the institution. The plaintiffs remained confined in the institution, each for several years after the initial treatment was concluded. Both sued the state of Georgia to prevent them from being inappropriately treated and housed in the institutional setting.

Opinion of the Court

The case rose to the level of the United States Supreme Court, which decided the case in 1999, and plays a major role in determining that mental illness is a form of disability and therefore covered under the Americans with Disabilities Act (ADA). Title II of the ADA applies to ‘public entities’ and include ‘state and local governments’ and ‘any department, agency or special purpose district’ and protects any ‘qualified person with a disability’ from exclusion from participation in or denied the benefits of services, programs, or activities of a public entity.

The Supreme Court decided mental illness is a form of disability and that “unjustified isolation” of a person with a disability is a form of discrimination under Title II of the ADA. The Supreme Court held that community placement is only required and appropriate (i.e. institutionalisation is unjustified), when:

  • The State’s treatment professionals have determined that community placement is appropriate;
  • The transfer from institutional care to a less restrictive setting is not opposed by the affected individual; and
  • The placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.

Unjustified isolation is discrimination based on disability. Olmstead v. L.C., 527 U.S. 581, 587 (1999).

The Supreme Court explained that this holding “reflects two evident judgments.”

  • First, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”
  • Second, historically “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 600-601.

However, a majority of Justices in Olmstead also recognized an ongoing role for publicly and privately operated institutions:

“We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings…Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.” Id. at 601-602.

A plurality of Justices noted: “[N]o placement outside the institution may ever be appropriate . . . ‘Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times – perhaps in the short run, perhaps in the long run – for the risks and exposure of the less protective environment of community settings ’ for these persons, ‘institutional settings are needed and must remain available’” (quoting Amicus Curiae Brief for the American Psychiatric Association, et al). “As already observed [by the majority], the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk… ‘Each disabled person is entitled to treatment in the most integrated setting possible for that person—recognizing on a case-by-case basis, that setting may be an institution’[quoting VOR’s Amici Curiae brief].” Id. at 605.

Justice Kennedy noted in his concurring opinion, “It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act of 1990 (ADA) to be interpreted so that states had some incentive, for fear of litigation to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.” Id. at 610.

The Supreme Court did not reach the question of whether there is a constitutional right to community services in the most integrated setting.

About ten years after the Olmstead decision, the State of Georgia and the United States Department of Justice entered a settlement agreement to cease all admissions of individuals with developmental disabilities to state-operated, federally licensed institutions (“State Hospitals”) and, by 01 July 2015, “transition all individuals with developmental disabilities in the State Hospitals from the Hospitals to community settings,” according to a Department of Justice Fact Sheet about the settlement. The settlement also calls for serving 9,000 individuals with mental illness in community settings. Recently, the federal court’s Independent Reviewer for the settlement found significant health and safety risks, including many deaths, plaguing former State Hospital residents due to their transition from a licensed facility home to community-settings per the settlement. The Court has approved a moratorium on such transfers until the safety of those impacted can be assured.

This page is based on the copyrighted Wikipedia article <https://en.wikipedia.org/wiki/Olmstead_v._L.C. >; it is used under the Creative Commons Attribution-ShareAlike 3.0 Unported License (CC-BY-SA). You may redistribute it, verbatim or modified, providing that you comply with the terms of the CC-BY-SA.

What is a Place of Safety?

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Introduction

The term “place of safety” is used in the Mental Health Act 1983, an Act of the Parliament of the United Kingdom.

Section 136 of the Act gives police officers the power to remove an apparently mentally disordered person who is in a public place and is apparently a danger to themselves or to other people, to a “place of safety” where they may be assessed by a doctor.

Section 135 of the Act gives police powers to remove a person who is not in a public place to a place of safety after the issue of a warrant by a Justice of the Peace.

According to a unilateral statement by the Home Office, places of safety should typically be hospitals, other medical facilities, residential care homes or the home of a relative or friend of the person; police stations should only be used as a “place of safety” as a last resort.

In practice, local agreements between local authorities, NHS Trusts and police constabularies are in place, designating certain establishments as places of safety. The owners or managers of an establishment acting as a place of safety have a legal obligation to ensure that a detained person cannot leave the premises until he or she has been fully assessed, which may take up to 24 hours. Invariably, therefore, to ensure safeguarding of both the detained person and the public, places of safety are typically restricted to psychiatric hospitals and police custody suites, and tend to exclude open general hospital wards and accident and emergency departments. For the same reason, it is most unusual for friends’ or relatives’ homes to be designated places of safety.

The decision whether to detain a particular person in a psychiatric hospital or in police custody is also subject to local agreements. It is a common arrangement for people to be taken to a psychiatric hospital unless they have a history of violence or are thought to be under the influence of alcohol or recreational drugs, in which cases they would be taken into police custody.

What is Informed Refusal?

Published on by Andrew Marshall3 Comments

Introduction

Informed refusal is where a person has refused a recommended medical treatment based upon an understanding of the facts and implications of not following the treatment. Informed refusal is linked to the informed consent process, as a patient has a right to consent, but also may choose to refuse.

Refer to Informed Consent, Mature Minor Doctrine, and Gillick Competence.

Background

The individual needs to be in possession of the relevant facts as well as of their reasoning faculties, such as not being intellectually disabled or mentally ill and without an impairment of judgement at the time of refusing. Such impairments might include illness, intoxication, drunkenness, using drugs, insufficient sleep, and other health problems. In cases where an individual is considered unable to give informed refusal, another person (guardian) may be authorised to give consent on their behalf. The concept grew out of and is similar to that of informed consent, but much less commonly used and applied. In the United States, it is recognised in certain state laws (in 2006: California, Nevada, Vermont, and Michigan) as well as in various court decisions.

As applied in the medical field, a physician has made an assessment of a patient and finds a specific test, intervention, or treatment is medically necessary. The patient refuses to consent to this recommendation. The physician then needs to explain the risks of not following through with the recommendations to allow the patient to make an informed decision against the recommendation. While in the past documentation of refusal of treatment has not been important, the widespread use of managed care, cost containment processes, as well as increased patient autonomy have created a situation where documented “informed refusal” is viewed as becoming more important. When refusal of treatment may result in significant damage or death, the interaction needs to be documented to protect the care giver in a potential later litigation against the allegation that the recommendation was either not made or not understood. On occasion, a patient will also refuse to sign the “informed refusal” document, in which case a witness would have to sign that the informed process and the refusal took place.

The pregnant patient represents a specific dilemma in the field of informed refusal as her action may result in harm or death to the foetus. Ethicists disagree on how to handle this situation.

What is Marion’s Case (1982)?

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Introduction

Secretary of the Department of Health and Community Services v JWB and SMB, commonly known as Marion’s Case, is a leading decision of the High Court of Australia, concerning whether a child has the capacity to make decisions for themselves, and when this is not possible, who may make decisions for them regarding major medical procedures.

It largely adopts the views in Gillick v West Norfolk Area Health Authority, a decision of the House of Lords in England and Wales.

Refer to Mature Minor Doctrine, Informed Consent, and Informed Refusal.

Background

“Marion”, a pseudonym for the 14-year-old girl at the centre of this case, suffered from intellectual disabilities, severe deafness, epilepsy and other disorders. Her parents, a married couple from the Northern Territory sought an order from the Family Court of Australia authorising them to have Marion undergo a hysterectomy and an oophrectomy (removal of ovaries). The practical effect would be sterilisation and preventing Marion from being able to have children and many of the hormonal effects of adulthood.

Under the Family Law Act the primary concern for matters involving children is that the court must act in the child’s best interests. The majority of the High Court made it clear that it was merely deciding a point of law and that the decision about what was in the child’s “best interests” would be left to the Family Court of Australia after the case.

The main legal debate that arose was who has the legal authority to authorise the operation. Three options existed: the parents (as legal guardians of their daughter), Marion or an order of a competent court, such as the Family Court of Australia. The Full Court of the Family Court was asked to decide:

  1. Could the parents, as joint guardians authorise the sterilisation procedure;
  2. If not, does the Family Court have jurisdiction to:
    (a) authorise the carrying out of such a procedure;
    (b) enlarge the powers, rights or duties of the parents to enable them to authorise such a procedure; or
    (c) approve the consent of the Applicants, as to the proposed procedure.

The majority of the Family Court, Strauss and McCall JJ held that the parents, as joint guardians could authorise the sterilisation procedure. Nicholson CJ held that the Family Court had jurisdiction to authorise the procedure.

The department, together with the Attorney-General for Australia, argued that only a court could authorise such a major operation and that the Family Court jurisdiction included any matter relating to the welfare of a child even if it was not a dispute about custody, guardianship or access.

The parents, however, “argued that the decision to sterilise a child is not significantly different from other major decisions that parents and guardians have to make for children and that the involvement of the Family Court is optional and only of a ‘supervisory nature’. Their argument was that, provided such a procedure is in the best interests of the child, parents as guardians can give lawful consent to a sterilisation on behalf of a mentally incompetent child.”

Judgement

The High Court recognised the right of everyone to bodily integrity under national and international law, and made a distinction between therapeutic and non-therapeutic surgical procedures as well as the duty of surrogates to act in the best interests of the incompetent patient.

In the case, the High Court ruled that while parents may consent to medical treatment for their children, the authority does not extend to treatment not in the child’s best interests. Also, the Court held that if medical treatment has sterilisation as its principal objective, parents do not have the authority to consent on behalf of their child.

Obiter Dictum

The statement by Deane J that parents may grant surrogate consent for the non-therapeutic circumcision of male children is obiter dictum and not part of the judgment. Male circumcision was not at issue in the case and no evidence or testimony was offered regarding male circumcision.

What is the Age of Legal Capacity (Scotland) Act 1991?

Published on by Andrew Marshall1 Comment

Introduction

The Age of Legal Capacity (Scotland) Act 1991 (c.50) is an Act of the Parliament of the United Kingdom applicable only in Scotland which replaced the pre-existing rule of pupillage and minority with a simpler rule that a person has full legal capacity at the age of 16.

Refer to Gillick Competence.

Background

Under the previous Scots law (derived from Roman law), a child to the age of 12 if female, or 14 if male, had legal status of “pupil” and was under legal control of an adult (usually parent or parents) deemed “tutor”. From that age until the age of majority the child had legal status of a “minor”, and might have a responsible adult deemed “curator” or have no responsible adult (being referred to as “fors familiated”). The Scottish age of majority was originally 21 until reduced to 18 by the Age of Majority (Scotland) Act 1969. Pupils lacked any capacity to enter into legal contracts. Minors had capacity to enter into contracts, which included the capacity to make a will, but subject to rights to have these reduced by a court in certain circumstances, and sometimes requiring their curators consent. The rules as to when contracts did or did not require consent, and which were potentially reducible by court were complex. The age to enter into marriage was originally the age of minority, but this was raised to 16 years by the Age of Marriage Act 1929, and confirmed in the Marriage (Scotland) Act 1977.

Under the Age Legal Capacity Scotland Act 1991 the old rules and terms were replaced. The basic rule under the replacement regime is that under 16s have no legal capacity. This is qualified by section 2 which provides that under 16s can:

  1. Enter into a contract of a kind commonly entered into by persons of their age group, and on terms which are not unreasonable; and
  2. From age 12, make a Will, and are deemed to have capacity to instruct a lawyer to act on their behalf.
  3. The right to consent to an adoption was also subsequently inserted into this section by the Children (Scotland) Act 1995.

In all other cases the legal Guardian of the under 16 has legal right to deal with all contractual and consent matters on the child’s behalf.

From age 16 a person has full legal capacity to enter into any form of agreement. This subject to protection for younger persons by means of a right (under section 3) while under the age of 21, to have a contract made between the ages of 16 and 18 set aside as a “prejudicial transaction”. The test is whether a reasonably prudent adult would not have entered into such a contract, and the person has been prejudiced by entering into that contract. Under section 4 a contract may be approved in advance by a court, in which case it cannot later be reduced. Contracts entered into in the course of the young person’s business, or where they misrepresented their age also cannot be reduced.

There is also specific provision for persons having their birthday on 29 February; under section 6 they are treated as having their birthday on 01 March in every non-leap year for purposes of calculating their age.

What is Gillick Competence?

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Introduction

Gillick competence is a term originating in England and Wales and is used in medical law to decide whether a child (under 16 years of age) is able to consent to their own medical treatment, without the need for parental permission or knowledge.

The standard is based on the 1985 judicial decision of the House of Lords with respect to a case of the contraception advice given by an NHS doctor in Gillick v West Norfolk and Wisbech Area Health Authority. The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand. Similar provision is made in Scotland by the Age of Legal Capacity (Scotland) Act 1991. In Northern Ireland, although separate legislation applies, the then Department of Health and Social Services stated that there was no reason to suppose that the House of Lords’ decision would not be followed by the Northern Ireland courts.

The Gillick Decision

Gillick’s case involved a health departmental circular advising doctors on the contraception of minors (for this purpose, under 16s). The circular stated that the prescription of contraception was a matter for the doctor’s discretion and that they could be prescribed to under-16s without parental consent. This matter was litigated because an activist, Victoria Gillick, ran an active campaign against the policy. Gillick sought a declaration that prescribing contraception was illegal because the doctor would commit an offence of encouraging sex with a minor and that it would be treatment without consent as consent vested in the parent; she was unsuccessful before the High Court of Justice, but succeeded in the Court of Appeal.

The issue before the House of Lords was only whether the minor involved could give consent. “Consent” here was considered in the broad sense of consent to battery or assault: in the absence of patient consent to treatment, a doctor, even if well-intentioned, might be sued/charged.

The House of Lords focused on the issue of consent rather than a notion of ‘parental rights’ or parental power. In fact, the court held that ‘parental rights’ did not exist, other than to safeguard the best interests of a minor. The majority held that in some circumstances a minor could consent to treatment, and that in these circumstances a parent had no power to veto treatment.

Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both). Lord Scarman’s test is generally considered to be the test of ‘Gillick competency’. He required that a child could consent if he or she fully understood the medical treatment that is proposed:

As a matter of law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed. Lord Scarman.

The ruling holds particularly significant implications for the legal rights of minor children in England in that it is broader in scope than merely medical consent. It lays down that the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child’s evolving maturity. The result of Gillick is that in England today, except in situations that are regulated otherwise by law, the legal right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision.

Subsequent Developments

A child who is deemed “Gillick competent” is able to prevent their parents viewing their medical records. As such, medical staff will not make a disclosure of medical records of a child who is deemed “Gillick competent” unless consent is manifest.

In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. Typical positions of emancipation arise when the minor is married (R v D [1984] AC 778, 791) or in the military.

The nature of the standard remains uncertain. The courts have so far declined invitations to define rigidly “Gillick competence” and the individual doctor is free to make a decision, consulting peers if this may be helpful, as to whether that child is “Gillick competent”.

As of May 2016, it appeared to Funston and Howard that some recent legislation worked explicitly to restrict the ability of Gillick competent children to consent to medical treatment outside of clinical settings. For example, parental consent is required for the treatment of children with asthma using standby salbutamol inhalers in schools. These restrictions have yet to be tested in court.

R and W

The decisions In re R (1991) and Re W (1992) (especially Lord Donaldson) contradict the Gillick decision somewhat. From these, and subsequent cases, it is suggested that although the parental right to veto treatment ends, parental powers do not “terminate” as suggested by Lord Scarman in Gillick. However, these are only obiter statements and were made by a lower court; therefore, they are not legally binding. However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a child’s (and parent’s) wishes.

Axon

In a 2006 judicial review, R (on the application of Axon) v Secretary of State for Health, the High Court affirmed Gillick in allowing for medical confidentiality for teenagers seeking an abortion. The court rejected a claim that not granting parents a “right to know” whether their child had sought an abortion, birth control or contraception breached Article 8 of the European Convention on Human Rights. The Axon case set out a list of criteria that a doctor must meet when deciding whether to provide treatment to an under-16 child without informing their parents: they must be convinced that they can understand all aspects of the advice, that the patient’s physical or mental health is likely to suffer without medical advice, that it is in the best interests of the patient to provide medical advice, that (in provision of contraception) they are likely to have sex whether contraception is provided or not, and that they have made an effort to convince the young person to disclose the information to their parents.

2020s

In late 2020, Bell v Tavistock considered whether under-16s with gender dysphoria could be Gillick competent to consent to receiving puberty blockers. Due to the unique specifics of that treatment, the High Court concluded that in such cases the answer will almost always be ‘no’, a priori. In late 2021, the Court of Appeal overturned Bell v Tavistock, as the clinic’s policies and practices had not been found to be unlawful.

In early September 2021, guidance circulated to NHS trusts stated that most 12- to 15-year-olds should be deemed “Gillick competent to provide [their] own consent” to be vaccinated against COVID-19, despite the JCVI “fail[ing] to recommend Covid-19 vaccines for healthy 12- to 15-year-olds”. Campaigner Molly Kingsley, who had co-founded the campaign group UsForThem over the issue, warned that “Were vaccination of children to happen on school premises without fully respecting the need for parental consent it would really prejudice parents’ trust in schools.” Epidemiologist and SAGE member John Edmunds said that “if we allow infection just to run through the population, that’s a lot of children who will be infected and that will be a lot of disruption to schools in the coming months.

Australian Law

The Australian High Court gave specific and strong approval for the Gillick decision in “Marion’s Case”, Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 189. The Gillick competence doctrine is part of Australian case law (see, e.g., DoCS v Y [1999] NSWSC 644).

There is no express authority in Australia on In re R and Re W, so whether a parent’s right terminates is unclear. This lack of authority reflects that the reported cases have all involved minors who have been found to be incompetent, and that Australian courts will make decisions in the parens patriae jurisdiction regardless of Gillick competence.

In South Australia and New South Wales legislation clarifies the common law, establishing a Gillick-esque standard of competence but preserving concurrent consent between parent and child for the ages 14-16.

Confusion regarding Gillick Competence

On 21 May 2009, confusion arose between Gillick competence, which identifies under-16s with the capacity to consent to their own treatment, and the Fraser guidelines, which are concerned only with contraception and focus on the desirability of parental involvement and the risks of unprotected sex in that area.

A persistent rumour arose that Victoria Gillick disliked having her name associated with the assessment of children’s capacity, but an editorial in the BMJ from 2006 claimed that Gillick said that she “has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term ‘Gillick competent'”.

Fraser Guidelines

It is lawful for doctors to provide contraceptive advice and treatment without parental consent providing certain criteria are met. These criteria, known as the Fraser guidelines, were laid down by Lord Fraser in the Gillick decision and require the professional to be satisfied that:

  • The young person will understand the professional’s advice;
  • The young person cannot be persuaded to inform their parents;
  • The young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment;
  • Unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer; and
  • The young person’s best interests require them to receive contraceptive advice or treatment with or without parental consent.

Although these criteria specifically refer to contraception, the principles are deemed to apply to other treatments, including abortion. Although the judgment in the House of Lords referred specifically to doctors, it is considered by the Royal College of Obstetricians and Gynaecologists (RCOG) to apply to other health professionals, “including general practitioners, gynaecologists, nurses, and practitioners in community contraceptive clinics, sexual health clinics and hospital services”. It may also be interpreted as covering youth workers and health promotion workers who may be giving contraceptive advice and condoms to young people under 16, but this has not been tested in court.

If a person under the age of 18 refuses to consent to treatment, it is possible in some cases for their parents or the courts to overrule their decision. However, this right can be exercised only on the basis that the welfare of the young person is paramount. In this context, welfare does not simply mean their physical health. The psychological effect of having the decision overruled would have to be taken into account and would normally be an option only when the young person was thought likely to suffer “grave and irreversible mental or physical harm”. Usually, when a parent wants to overrule a young person’s decision to refuse treatment, health professionals will apply to the courts for a final decision.

An interesting aside to the Fraser guidelines is that many[weasel words] regard Lord Scarman’s judgment as the leading judgement in the case, but because Lord Fraser’s judgement was shorter and set out in more specific terms – and in that sense more accessible to health and welfare professionals – it is his judgement that has been reproduced as containing the core principles, as for example cited in the RCOG circular.

What is Mental Health Law?

Published on by Andrew Marshall3 Comments

Introduction

Mental health law includes a wide variety of legal topics and pertain to people with a diagnosis or possible diagnosis of a mental health condition, and to those involved in managing or treating such people. Laws that relate to mental health include:

  • Employment laws, including laws that prohibit employment discrimination on the basis of a mental health condition, require reasonable accommodations in the workplace, and provide mental health-related leave;
  • Insurance laws, including laws governing mental health coverage by medical insurance plans, disability insurance, workers compensation, and Social Security Disability Insurance;
  • Housing laws, including housing discrimination and zoning;
  • Education laws, including laws that prohibit discrimination, and laws that require reasonable accommodations, equal access to programmes and services, and free appropriate public education;
  • Laws that provide a right to treatment;
  • Involuntary commitment and guardianship laws;
  • Laws governing treatment professionals, including licensing laws, confidentiality, informed consent, and medical malpractice;
  • Laws governing admission of expert testimony or other psychiatric evidence in court; and
  • Criminal laws, including laws governing fitness for trial or execution, and the insanity defence.

Mental health law has received relatively little attention in scholarly legal forums. The University of Memphis Cecil C. Humphreys School of Law in 2011 announced the formation of a student-edited law journal entitled “Mental Health Law & Policy Journal.”

United States

Employment

Title I of the Americans with Disabilities Act of 1990 (“ADA”) is a civil rights law that protects individuals with depression, posttraumatic stress disorder (“PTSD”), and other mental health conditions in the workplace. It prohibits employers with 15 or more employees from firing, refusing to hire, or taking other adverse actions against a job applicant or employee based on real or perceived mental health conditions. It also strictly limits the circumstances under which an employer can ask for information about medical conditions, including mental health conditions, and imposes confidentiality requirements on any medical information that the employer does have.

The ADA also requires employers to provide reasonable accommodations to job applicants or employees with mental health conditions under some circumstances. A reasonable accommodation is a special arrangement or piece of equipment that a person needs because of a medical condition to apply for a job, do a job, or enjoy the benefits and privileges of employment. Examples include a flexible schedule, changes in the method of supervision, and permission to work from home. To have the right to a reasonable accommodation, the worker’s mental health condition must meet the ADA’s definition of a “current disability.” Conditions that should easily qualify include major depression, PTSD, bipolar disorder, obsessive-compulsive disorder (“OCD”), and schizophrenia. Other conditions may also qualify, depending on what the symptoms would be if the condition were left untreated, during an active episode (if the condition involves active episodes). The symptoms do not need to be severe or permanent for the condition to be a disability under the ADA.

Under the Family and Medical Leave Act of 1993 (FMLA), certain employees are entitled to up to twelve weeks of job-protected and unpaid leave to recover from a serious illness or to care for a family member with a serious illness, among other reasons. To be eligible, the employer must have had 50 or more employees in 20 or more workweeks in the current or preceding calendar year, or else must be a public agency, elementary school, or secondary school, and the employee must have worked for the employer for at least 12 months, must have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave, and must work at a location where the employer has at least 50 employees within 75 miles.

United Kingdom

Various pieces of legislation including Mental Health Act 1983 and the Mental Capacity Act 2005 govern mental health law giving mental health professionals the ability to commit individuals, treat them without consent and place restrictions on them while in public through outpatient commitment, according to the rules of this legislation. These decisions can be challenged through the mental health tribunals which contain members of the judiciary, though the initial decisions are made by mental health professionals alone.

Around the World

Civil Commitment

Mental health legislation is largely used in the management of psychiatric disorders, such as dementia or psychosis, and developmental disabilities where a person does not possess the ability to act in a legally competent manner and requires treatment and/or another person to act in his or her best interests. The laws generally cover the requirements and procedures for involuntary commitment and compulsory treatment in a psychiatric hospital or other facility.

In some jurisdictions, court orders are required for compulsory treatment; in others, psychiatrists may treat compulsorily by following set procedures, usually with means of appeal or regular scrutiny to ensure compliance with the law.

Sources of Law

Mental health law includes areas of both civil and criminal common and statutory law.

Common law is based on long-standing English legal principles, as interpreted through case law. Mental health-related legal concepts include mens rea, insanity defences; legal definitions of “sane,” “insane,” and “incompetent;” informed consent; and automatism, amongst many others.

Statutory law usually takes the form of a mental health statute. An example is the Mental Health Act 1983 in England and Wales. These acts codify aspects of the treatment of mental illness and provides rules and procedures to be followed and penalties for breaches.

Not all countries have mental health acts. The World Health Report (2001) lists the following percentages, by region, for countries with and without mental health legislation.

What is the Community Mental Health Act of 1963?

Published on by Andrew Marshall1 Comment

Introduction

The Community Mental Health Act of 1963 (CMHA) (also known as the Community Mental Health Centres Construction Act, Mental Retardation Facilities and Construction Act, Public Law 88-164, or the Mental Retardation and Community Mental Health Centres Construction Act of 1963) was an act to provide federal funding for community mental health centres and research facilities in the United States.

Background

This legislation was passed as part of John F. Kennedy’s New Frontier. It led to considerable deinstitutionalisation.

In 1955, Congress passed the Mental Health Study Act, leading to the establishment of the Joint Commission on Mental Illness and Mental Health. That Commission issued a report in 1961, which would become the basis of the 1963 Act.

The CMHA provided grants to states for the establishment of local mental health centres, under the overview of the National Institute of Mental Health. The NIH also conducted a study involving adequacy in mental health issues. The purpose of the CMHA was to build mental health centres to provide for community-based care, as an alternative to institutionalisation. At the centres, patients could be treated while working and living at home.

Only half of the proposed centres were ever built; none were fully funded, and the act did not provide money to operate them long-term. Some states saw an opportunity to close expensive state hospitals without spending some of the money on community-based care. Deinstitutionalisation accelerated after the adoption of Medicaid in 1965. During the Reagan administration, the remaining funding for the act was converted into a mental-health block grant for states. Since the CMHA was enacted, 90% of beds have been cut at state hospitals.

The CMHA proved to be a mixed success. Many patients, formerly warehoused in institutions, were released into the community. However, not all communities had the facilities or expertise to deal with them. In many cases, patients wound up in adult homes or with their families, or homeless in large cities, but without the mental health care they needed.

What was Addington vs Texas (1979)?

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Introduction

Addington v. Texas, 441 U.S. 418 (1979), was a landmark decision of the US Supreme Court that set the standard for involuntary commitment for treatment by raising the burden of proof required to commit persons for psychiatric treatment from the usual civil burden of proof of “preponderance of the evidence” to “clear and convincing evidence”.

Background

Before Frank Addington was arrested on the misdemeanour charge of “assault threat” against his mother, Addington’s mother filed a petition with the court, in accordance with Texas law, requesting that Addington be indefinitely involuntarily committed to a state psychiatric hospital. Addington had a long history of mental and emotional problems and past psychiatric hospitalisations. The state trial court issued jury instructions that the decision be based on “clear, unequivocal and convincing evidence” that Addington was mentally ill and that hospitalisation was required for his own welfare and the welfare of others. The jury found that Addington was mentally ill and required hospitalisation. Thereupon the trial court ordered his indefinite commitment. He was indefinitely committed to Austin State Hospital.

However, Addington appealed to the Texas Court of Appeals, based on the argument the court should have used the “beyond a reasonable doubt” standard of proof. The appeals court reversed, agreeing with Addington. The Texas Supreme Court then reversed the Court of Appeals’ decision, reinstating the trial court’s orders. It concluded that the standard of proof of the preponderance of the evidence satisfied due process in a civil commitment proceeding.

Addington then appealed to the US Supreme Court on a writ of certiorari (in law, certiorari is a court process to seek judicial review of a lower court of government agency).

Opinion of the Court

The appeal was dismissed and certiorari granted; the lower court’s decision was vacated and remanded. The court said the issue of an individual’s interest in liberty is of such weight and gravity that a higher standard of proof is required than is normal in civil cases brought under state law. Because of the uncertainties of psychiatric diagnosis, the burden of proof does not need to be as high as “beyond a reasonable doubt” in criminal cases, but should be a “clear and convincing” standard of proof as required by the Fourteenth Amendment in such a civil proceeding to commit an individual involuntarily for an indefinite period to a state psychiatric hospital.

Further, the opinion touched on the issue of an involuntary commitment as primarily medical in nature and needing the expertise of mental health experts.

Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.

Subsequent Developments

The court raised the bar for committing someone against their will in a civil commitment proceeding. When the stakes are exceptionally high in civil matters, the burden of proof must be “clear and convincing evidence”. The case raised important issues regarding civil commitment by placing the burden of proof on the petitioner, that is the party seeking the involuntary commitment of a person.

The opinion also suggested that it was not necessarily for the trier of facts to draw the necessary conclusions without the expertise of psychiatrists and psychologists.

The Supreme Court also cited the Addington case in Santosky v. Kramer, which set a clear and convincing evidence standard in termination of parental rights cases.