Article Preview: Perspectives on Outpatient Commitment by Richard C. Boldt

The highly publicized Newtown, Connecticut mass shooting reignited national debate regarding mental health services and what legislatures can and should do about them. Recent legislation—namely the Murphy Bill—was introduced in response to such incidences; however, mental health treatment in the United States remains a hotly contested issue. The debate largely turns on the competing aims of mental health treatment: (1) the government’s interest in preventing dangerous outbursts, and (2) the states’ parens patrie interest in the health and well-being of persons with mental illnesses. How do these seemingly mutually exclusive goals fit within a statutory framework, and how does the Murphy Bill fare?

In his article Perspectives on Outpatient Commitment, Richard C. Boldt aims to provide guidance on the first question, and critiques legislation similar to the Murphy Bill for encouraging states to make greater use of outpatient civil commitment. This Article, which will be featured in the New England Law Review’s Volume 49, Book 1, asserts that legislation aimed at effectively treating mental health and preventing future violence will only succeed with adequate funding, proper implementation, and full appreciation of the cost-benefit analysis regarding commitment versus individual liberties.

In his analysis, Boldt provides the historical framework and competing arguments regarding outpatient commitment in the United States. Generally, outpatient commitment is predicated on a finding of patient incapacity, patient dangerousness, or both. As to the first finding: the proponents of increased outpatient commitment argue that persons with mental health issues suffer from a condition known as “‘anosognosia,’ which is a lack of insight about one’s disease and an inability to recognize the need for treatment.” Accordingly, court-ordered outpatient commitment is not “involuntary” because the treatment is likely what the patient would choose for themselves but for their disorder. Conversely, those in opposition argue that involuntary commitment should be predicated only on dangerousness to the public, as this has the dual benefit of effectively limiting the exercise of coercive state power and preserving individual autonomy.

Boldt pokes holes in the cost-benefit analysis’ reliance on clinician assessments of danger which result in civil commitment. While such reliance ensures that at least some persons likely to act on violent predilections will receive treatment, Boldt highlights that clinician assessments may civilly commit others who pose no risk of dangerousness. To support this proposition, Boldt cites studies in which clinicians had false positive rates reaching as high as ninety-two percent.

Boldt then surveys the various responses to such difficulties noting the wide discrepancies amongst the states. He argues that “programs that seek to address the full range of factors contributing to the dysfunction of participants are more likely to have a measurable impact on both their capacity to function safely in the community and to avoid criminal system involvement.” The leading legislation in this regard is Kendra’s Law, which earmarked significant funding for court-ordered community treatment and resources for inpatient treatment programs. Boldt’s endorsement of Kendra’s Law is grounded in an analysis of the link between inpatient care, outpatient care, and appropriate funding and implementation of comprehensive community care. New York’s reauthorization of Kendra’s Law mandated a thorough analysis regarding outpatient commitment in the United States. This analysis indicated that patients subject to comprehensively funded and implemented outpatient programs had a reduction in hospitalizations and an improved attitude to medication and case management. Boldt argues that legislation like Murphy’s Bill will only succeed with “conscious attention” to the wide variety of issues that plague outpatient commitment and the background assumptions that underlie effective treatment.

Be sure to read Richard C. Boldt’s full article in the New England Law Review, Volume 49, Book 1.

Contributing Editor: Timothy Arnold

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