There is also clear evidence that both mental health professionals and judges are significantly influenced by changing trends in law and medical practices, and have become more skeptical of commitments.(2)

This article will focus upon a subtle change in the meaning of one legal term--"dangerousness"--and the impact it has had to further limit the use of civil commitment. The effect is that because of an ambiguous use of that term in court decisions, there is a growing disuse of one of the two classic governmental powers to involuntarily treat persons with significant mental illness. Given the current economic and other disincentives to civil commitment, often such persons in need of treatment unnecessarily get caught up in the criminal justice system, or simply continue to suffer a treatable condition.

Inherited from the western tradition of law, and particularly laws of England, all laws are directly founded upon one of the two traditional governmental powers. First, governments are responsible to protect each citizen from other persons' injurious actions; this is called the police power. Secondly, governments are the parents of last resort for each citizen; this is usually known as parens patriae (father of the country). This power is a benevolent one, i.e., government is responsible to care for a disabled citizen as loyally as a parent would for a child.(3)

These two powers are perhaps best expressed in the Preamble of the Constitution of the United States. The expressed purpose of our government is to exercise police powers (to establish justice, insure domestic tranquility and provide for the defense) and its parens patriae powers (to promote the general welfare and to secure the blessings of liberty).

It is significant to also note that courts take very seriously any denial of a person's liberty, whether under the criminal or civil law. Civil commitment is viewed as a denial of liberty, no matter which governmental power is being exercised, and courts apply the strictest legal standards of the civil law upon the party (usually the government) seeking to involuntarily commit for treatment a person with mental illness.

Accordingly, civil commitment laws may be justified under either of these governmental powers as long as they meet the respective requirements to "police" or to "parent." Thus, a person with a significant mental illness may be civilly committed under the police power if manifestations of that illness threaten to harm other people; in other words, the principal focus or beneficiary of this "police" civil commitment is protection of others rather than the patient.

Alternatively, under its powers to act as a parent acts toward a child of tender years, i.e., without mature judgment and reason, government may civilly commit a person with mental illness-based impaired judgment for his own good, e.g., where the disabilities of the mental illness are treatable, and, where the person cannot cope with the inherent dangers of life in society by himself or with help from family or friends. Without support from family or community and without the requisite abilities, the state is obliged to protect his life and health, by making decisions and providing service for that person who can do neither for himself.

The problem of ambiguity that has blurred the distinction between the "police" and "parens patriae" powers is the inconsistent use of the term "dangerousness", usually with the phraseology that: "a person is a danger to himself or others." However, this is not a very precise use of the concept of "dangerousness," which normally connotes an external malevolence, a "threat" or a "menace" and which is an active force.(4) A person is not truly a danger to himself except where he is suicidal or self-abusive. What is often meant by this convenient phrase is that a person is unable to avoid external dangers or harms that are easily managed by others, or is unable to function on a basic level to avoid the dangers in society. In other words, in the parens patriae case, the patient is not the danger, nor do others generally need protection from him under a police power. It is a meaningful distinction, both in fact and law, to separate a person who actively might harm others (but be without criminal culpability, e.g., John Hinckley) from a person who might be harmed by others or society through passivity or inability to cope, as in the so-called Billie Boggs case discussed in this article.

The origin of this ambiguity, in my opinion, was the landmark decision on civil commitment from the U. S. Supreme Court, O'Connor v. Donaldson.(5) This decision fundamentally ruled that government could not commit a person for involuntary mental health treatment merely due to a mental illness alone, i.e., without associated behavioral problems (such as violence) or without a clear and convincing inability to live safely in society by himself or even with the help of others. The legal standard set by the Court was:

"A finding of 'mental illness' alone cannot justify a State's locking a person up against his will and keeping him indefinitely in simple custodial confinement. . . . In short, a state cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends."(6)

Admitting to imprecision in the use of this idea, in a related footnote, the Court said:

"The judge's instructions used the phrase "dangerous to himself". Of course, even if there is no foreseeable risk of self-injury or suicide, a person is literally "dangerous to himself" if for physical or other reasons he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends. While it might be argued that the judge's instruction could have been more detailed on this point. . . the evidence clearly showed that Donaldson was not "dangerous to himself" however broadly that phrase might be defined."(7)

What was the Supreme Court saying? Clearly, it was that a person who is mentally ill, aware of it and capable of doing something about it if he chose to, cannot be deprived of his liberty under a civil commitment law, except if there is a danger to others or a dangerous situation to him which would be almost certain to occur due to his mental illness, and the commitment could treat the mental illness. The facts of the case were that Kenneth Donaldson was confined for 15 years without any meaningful treatment, nor any other rationale to justify this massive curtailment of liberty.

What the Court was not addressing, and this was strongly emphasized in a concurring opinion by the Chief Justice, was the parens patriae commitment statute which involves a patient who cannot competently make treatment decisions and who has a mental illness that can somehow benefit from treatment or care in an asylum setting.

Thus, the use of the concept of "dangerousness" by the Supreme Court was not to mandate it as a finding in all commitment cases, at least in the sense that it applies to persons who are not competent to decide how to cope with manifestly serious mental illnesses.

The term dangerousness has been said to be "open to various interpretations" by (now) Chief Judge Wachtler of New York's highest court.(8) However, based on the Donaldson case, appellate and lower courts have judicially required proof of some kind of "dangerousness" in all civil commitments even though one statute does require it (N.Y. Mental Hygiene Law Section 9.37) and one does not (MHL Section 9.27)(9)

This relegates government's benevolent intervention only to circumstances where harm is foreseeable, but not when only amelioration or restoration of a person's mental health autonomy and decisionmaking are the likely consequence. Also, the proof problems become very difficult and even insurmountable if the person's mental illness does not immediately produce danger, but only mental disability, confusion and an inferior lifestyle.(10)

Approximately two years ago, there was a celebrated case of Ms. Billie Boggs (a chosen pseudonym for her real name, Joyce Brown), a forty-year-old woman who "lived" summer and winter, spring and fall on the public sidewalk in an affluent neighborhood of New York City. She was frequently observed and assisted by personnel of an emergency psychiatric service and described by them as dirty and disheveled, speaking in sexually-oriented rhymes, exposing herself and smelling of excrement. Other erratic behaviors were observed such as tearing money and urinating upon it, accepting or rejecting offers of food and help, and violent behaviors. According to the health and social services professionals of a special city service for the homeless, she was diagnosed as having a significant mental illness that was causing this behavior and appeared to be getting worse in her illness. New York City Health and Hospital Corporation [HHC] sought to have Ms. Boggs involuntarily committed for care and treatment because such treatment was essential for her welfare. This was rigorously opposed on her behalf by the New York Civil Liberties Union (NYCLU), which contended her principal problem was homelessness.

It was stipulated by the parties that the commitment of Ms. Boggs must meet the standards of N.Y. Mental Hygiene Law Section 9.39 which, unlike Section 9.27, requires showing that the alleged mental illness is potentially dangerous or likely to result in harm to the patient or others.

Section 9.27 is a parens patriae statute that requires three elements of proof that:

1. a mental illness exists such that care and treatment in a hospital is appropriate for it;

2. the patient's welfare is impaired; and

3. the patient's judgment is unable to understand the need for such care and treatment.

Here the impairment of judgment is the crucial element to justify the state acting as a parent to the patient.(12)

However, Section 9.39 is based on a police power and requires:

1. proof of mental illness;

2. care and treatment at a hospital is appropriate; and

3. there is likelihood of serious harm to himself or others. (emphasis supplied)

Having agreed to prove that Ms. Boggs was more than merely dysfunctional and her judgment impaired due to her mental illness, HHC undertook a much more difficult and problematic burden of proving dangerousness. As so often happens in modern litigation, this commitment litigation turned into a battle of diametrically opposed expert opinions, competing in a contest of prognostication of Ms. Bogg's behavior and of future dangers she might face.

After hearing the experts from both parties, the trial judge said that because the experts disagreed, he derived little guidance from them and would rely on his own in-court assessment of Ms. Bogg's demeanor.

The Appeals Court held that it was not appropriate for the trial judge to rely on his own assessment, especially when at that time Ms. Boggs had been cleaned up and received some treatment for her mental illness. In other words, it was against the weight of evidence to conclude that Ms. Boggs was not in her current plight due to a significant mental illness. By the time of further appeal, HHC had discharged Ms. Boggs from care and treatment due to her refusal to accept the offer of psychotropic medication, which, in New York, brings on another round of litigation. After a new hearing on that issue, the court ruled her refusal valid and HHC discharged her saying there was no further benefit to be gained from hospitalization, thus rendering the controversy moot.

Although HHC eventually prevailed in showing dangerousness or potential harm, it should not have been necessary under the parens patriae standard under Section 9.27. All HHC would have had to prove was that Ms. Boggs would have benefited from proper care and treatment and does not realize her condition of mental illness or the need for, and benefit of, treatment. This statute fit the reality of this case where showing actual danger was difficult.(13)

Probably due to abuses in some civil commitment cases and the Supreme Court decision in Donaldson, courts, certain professionals and advocates have sought more scrutiny and injected more skepticism into the process. One of the many developments in this trend has been to heighten the burden of proof to justify commitment as, for example, by mandating a showing in all cases that the patient is dangerous. In my view,this creates an ambiguity between the very separate legal avenues (police versus parens patriae) where dangerousness (defined strictly as a threat from outside) is traditional and appropriate in law to the police power, but is now being awkwardly applied to the parens patriae power to mean a danger to oneself. In the latter case of parens patriae, the danger (i.e., due to an inability to cope) is not caused by the patient but comes from elsewhere and is only harmful due to the patient's mental condition. The patient is not literally a danger, he is the object of the danger. In a police power case, the patient himself is literally the danger and is therefore dangerous to others.

Perhaps the greatest problem resulting from this ambiguity, illustrated by the Boggs case, is that patients who could truly benefit in the quality of their lives from mental health treatment will be more unlikely to obtain help because the illness also causes a denial or unawareness of its own existence. This is not consistent with the parens patriae power under which the government is supposed to behave as a parent in helping those who do not have competent decision-making ability and who cannot cope with a major aspect or function of life even if there isn't a true imminent danger. It was very arguable whether Ms. Boggs was a danger to herself or others, after all, she existed for more than a year and a half on the eastside of Manhattan without sustaining any significant injury, or causing one. She sustained a pattern in her life including obtaining food, having a primitive sanitary system and having clothing. How many people could survive as she did without serious harm?

The Constitution and our long legal tradition establishes government as an instrument to protect our liberty, not to usurp it. Involuntary civil commitment for mental illness is the most serious deprivation of liberty short of incarceration for being convicted of a serious crime; it is not to be taken lightly, and is not by our law and courts. For those who pose a danger to themselves or others, but not criminally so, but because of mental illness, liberty may be curtailed.

For those who cannot truly exercise liberty or cope with the hazards of freedom due to a mental illness, which also causes them to be unaware treatment could help, the state may find that (by clear and convincing proof) treatment is appropriate and would be in the person's best interests of life, health and the full exercise of liberty and freedom.(14)

1. S. J. Brakel, J. Parry & B. A. Weiner, The Mentally Disabled and The Law (3rd Ed. 1985), p. 21 and n.2; see generally, R.D. Miller, Involuntary Civil Commitment of the Mentally Ill in the Post-Reform Era (Charles C. Thomas 1987)

2. See e.g., L. R. Faulkner, J. D. Bloom, B. H. McFarland, T. O. Stern, The Effect of Mental Health System Changes on Civil Commitment, 13 Bull. Am. Acad. Psychiatry and Law 345 (1985); also, H. Owens, R. Rosner & R. B. Harmon, The Judge's View of Competency Evaluations, 13 Bull. Am. Acad. Psychiatry and Law 389 (1985)

3. The 13th century statute, De Praerogativa Regis gave the king the power of custody over the person and/or property of then called lunatics and idiots, see id., n.1 at p. 24 n.6

4. S. I. Hayakawa, Use the Right Word (Funk & Wagnall's 1968) at p. 144

5. 422 U.S. 563 (1975)

6. Id., at pp. 575-76

7.Id., at p. 574 n. 9

8. Mtr. of Torsney, 47 N.Y. 2d 667, 686-87 (Ct. App. 1979)(Wachtler, J., dissenting).

9. Scopes v. Shah, 59 A.D. 2d 203 205 398 N.Y.S. 2d 911, 913 (3rd Dept. 1977), see also, Mtr. of Edward L. 137 A.D. 2d 818 (2d Dept. 1988), Mtr. of Harry M., 96 A.D. 2d 201 (2d Dept. 1983); Bartlett v. State, 52 A.D. 2d 38 (4th dept. 1976); Mtr. of Stefano, 140 Misc. 2d 801 (Sup. Ct., Mon. Co., 1988)

10. D. E. Neil & R. L. Binder, Predictive Validity of Dangerousness in Emergency Commitment, 144 Am. J. Psychiatry 197 (1987); C.D. Stromberg & A.A. Stone, A Model State Law on Civil Commitment of the Mentally Ill, 20 Harv. J. On Legis. 275 (1983)

11. In Mtr. of Boggs, 136 Misc. 2d 1082 (Sup. Ct., N.Y. Co. 1987); reversed 132 A.D. 2d 340 (1st Dept. 1987); appeal dismissed as moot, 70 N. Y. 2d 981 (Ct. App. 1988); motion for reargument denied 71 N. Y. 2d 994 (Ct. App. 1988)

12.B. D. McGraw, W. L. Fitch, C. H. Buckley, T. B. Marvell, Civil Commitment in New York City: An Analysis of Practice, 5 Pace L. Rev. 259, 286-87 (1985)

13. For an excellent review of the medication refusal by the psychiatric consultant to the trial court, see, F. Cournos, M.D., Involuntary Medication and the Case of Joyce Brown, 40 Hospital & Comm. Psychiatry 736 (1989).

14. S.K. Hoge, P.S. Applebaum, & A. Green, An Empirical Comparison of the Stone and Dangerous Criteria for Civil Commitment, 146 Am. J. of Psychiatry 170, 171 (Feb. 1989)