Barriers to Providing Effective Treatment: A Critique of Revisions in Procedural,Substantive, and Dispositional Criteria in Involuntary Civil Commitment

Anyone spending time in a major urban center in the United States must be shocked by the significant number of mentally ill persons living on the streets--the "bag people" who sleep in door-ways, on steam grates, on subway stairs. These people represent a new lifestyle made possible in part by a policy of deinstitutionalization of the mentally ill, which has been motivated largely by economic considerations and rationalized as a matter of mental health law reform. Another major factor contributing to the increasing denial of treatment to the mentally ill has been a revision of the mental health statutes. A number of jurisdictions now require, as a prerequisite to involuntary commitment, both a finding of dangerousness to self or others and that treatment be done in the least restrictive institutional setting.

The policy of deinstitutionalization and these reforms of commitment law ignore the reality of mental illness-many mentally ill persons lack the ability to make rational decisions about their treatment needs. This Essay examines the efficacy of the procedural and substantive reforms in civil commitment law that courts and legislatures have made in the last decade and a half. In light of this examination, the Essay suggests some doctrinal revisions that are necessary to assure adequate treatment for mentally ill persons who lack the rational capacity to understand their own needs or how to meet those needs.