USERS GUIDE TO MENTAL COMMITMENT

Under our founding principles and laws, it is very difficult to impose unwanted medical treatment, including psychiatric treatment, on individuals. This users guide is intended to set out how mental commitment works in the real world.

From time to time a client who has a mental illness experiences a deterioration in mental functioning. The standard intervention is adjusting medications. For a variety of reasons this is not always effective.

•   Psychotropic medications can be subjectively unpleasant
•   Meds do not necessarily work that well in the first place
•   When a person is psychotic, they do not necessarily appreciate the problems at hand
•   Our system for delivery of services to people with these issues is broken (actually, has never worked at all).

So, the client may begin behaving in ways that are disturbing to others, and very often the client themselves becomes very distraught. The most marginally effective way we have invented to deal with these situations often involves coercion. It sometimes becomes necessary to impose therapeutic treatment that is unwanted by the client in order to resolve their distress or to protect others.

Seeking mental commitment is by no means the best alternative for a person whose behavior is problematic due to a mental condition. Friendly, long term support, tolerance and persuasion are the most commonly effective alternatives, even when the behavior is extreme. Most of the risk posed by people with impaired thinking and difficult behavior does not come up to the fairly high level of danger necessary to overcome their constitutional rights.

Here is who to call

Under Washington law Designated Crisis Responders (DCRs) have the legal authority to detain someone for up to 3 days if there is sufficient cause. Here is a list of DCR’s in Washington State.

Document

If you are reading this because you have a client, friend, or family member about whom you are concerned, and you know this person well it is a very good idea to compile whatever information you can in written form, even if it is just your scattered recollections. A document that includes hospitalization dates, names and contact information of medical providers, dates and counties where detentions may have occurred, family members information, criminal history

Call when there is danger to self or others

The DCRs should be contacted whenever the patient does or seriously threatens property damage or violence to anyone else, or to harm themself, or is very disruptive. The basic rule is that histrionic behavior or threats that are not taken seriously at the time do not count. You should call every time the person causes you to believe there is actual risk for your-self, another identifiable person, or your property. It is important to call immediately. The DCRs correctly reason that you must not have felt too threatened if you did nothing for a day or two. Behavior that is simply strange or unsettling will not result in action.

Call when a person is unable to meet essential life needs

A person may be committed for being “gravely disabled” if they are so impaired as to be unable to get such essentials as food or shelter. This is a very restrictive criteria.

• A person who is capable of getting to a homeless shelter, for example, is not gravely disabled even though homeless.
• A person who is unable to care for him or herself but does accept assistance is not gravely disabled if such assistance is available.
• Thus, a person who is unable to find food or shelter, but who is cared for by a friend or relative is not gravely disabled.

People who are gravely disabled have an immediate circumstance will cause them physical harm and are so disoriented that they are unable to detect the problem at hand or unable to do anything to resolve the problem.

Be persistent

Most importantly, you should call the DCR every time there is an incident; even, if needed, multiple times in a day. Persistence in this regard is difficult and frustrating but is necessary. The way the process works, a person is seldom detained the first or second time there is an incident. It is very easy to assume that the DCR will never do anything. This is not the case. In practice, most people who are detained have had a number of recent contacts with the DCR. Thus, you should not waste the DCR’s time with insubstantial reports, but you should make a report every time there is a serious incident.

Accept the system

The DCR does keep careful track of referrals. All of their calls are logged into a central computer. It is very common that you will not talk consistently to the same person, but for the most part the workers are pretty skilled at identifying what is going on. If you know that there have been previous calls tell the person you speak with that there is an “open case”.

The way the commitment process works is frustrating and sometimes aggravating. It is natural to feel like taking your frustration out on the DCR, who may appear to be indifferent or irrational. These are people working in a very difficult system in which the best interests of very sick people are not the priority: legal rights are the priority. They are there every day and do not necessarily display the emotion that may seem appropriate. It does no good to hector them about how bad the system is or about his or her personal style. No matter how accurate such criticisms may be, they will probably not improve the patient’s situation. And, don’t forget that the DCR does not make the rules, our elected officials and their appointees do, which is to say: we do.

In an emergency, call 911

If the person is in the process of harming himself, someone else or property; or has just done so and is nearby call 911 first to deal with the immediate situation, and then also call the DCR. Should the person be taken away by police, be sure to point out that they have a mental illness and ask the police to contact the DCR. In some circumstances, the police will detain someone long enough for the DCR to make an assessment, or take the person to an emergency room to be evaluated.

Usually when police take any action or a report they assign a “case number”. Get the case number and write it down.

The law

Washington has an Involuntary Treatment Act (ITA), RCW 71.05 and RCW 71.34. Under the ITA a person is committable who is dangerous to self or others or is gravely disabled as a result of a mental condition can be required to accept mental health treatment. Dangerous means to cause or seriously threaten physical harm, or damage to the property of others. Gravely disabled means completely unable to acquire shelter or food or other absolute necessities; or imminently endangered by impaired judgement and lack of self control, like walking in traffic or causing cooking fires.

Under the ITA, a person who is dangerous or gravely disabled can be detained by the Designated Crisis Responder for up to three days. At the end of this time a hearing can be held at which the Prosecuting Attorney represents the county and at which the detainee is entitled to an attorney. At this hearing, it must be shown to be more likely than not based on recent events that the patient is dangerous or gravely disabled. If the judge finds this to be the case the person can be held in a hospital-like unit for 14 days. At the end of the 14 days, another hearing may be held at which the county must show beyond a reasonable doubt based on recent events that the patient is still dangerous or gravely disabled. If this is found to be so the patient can be committed for an additional 90 days in a mental hospital.

The law is purposely weighted in favor of a person seeking to avoid involuntary treatment. At each stage, the attorney for the county must determine that there is sufficient evidence to justify seeking further involuntary treatment, based on the evidence and the law. It sometimes occurs that the attorney chooses not to bring a case forward despite what seems like obvious evidence of danger or disability.

Mental commitment is a lawsuit

Involuntary treatment proceedings are a civil, not a criminal matter. Proceedings are assigned a cause number, rules of evidence notice and representation are applied. The decision is made by a judge after hearing from lawyers for both sides based on established rules of law. Again, the focus is on legal principles and not necessarily humanitarian or utilitarian concerns.

The detainee will usually be represented by a publicly funded attorney. This lawyer’s job is not to act in the best interests of the person; which is to say is not allowed to exercise a personal judgment about what should happen. Defense counsel are ethically required to do as the client instructs, which is most often to avoid further detention. Defense counsel can be annoying in the apparent disregard for horrible and immediate circumstances, but their personal style is not the issue, their ethical duties are. Prosecutors are a bit less aggressive than defenders reflecting in part a regard for civil liberties and in part, I suspect, a regard for the costs to the county of successful detentions.

The time periods of 3 days or 14 days are often not strictly observed due to crowded court dockets, weekends and holidays, or agreements to put off hearings. Facts that are to be shown must be reported by sworn testimony. Because of the way that cases are managed, the exact time of the hearing is hard to predict. The result can be considerable inconvenience to witnesses.

It is certainly true that the focus on civil liberties results in many instances of people who badly need assistance not receiving it. The abuses that occurred in the era when commitment was easier to accomplish do not recommend that approach. The problems with mental commitment are not the legal procedures, they are the defeatist lack of resources. We have a terrible track record of providing humane or effective assistance to people with mental illness whatever the legal regime.

Loopholes

Patients who are willing to accept treatment voluntarily are not subjected to involuntary proceedings. Sometimes patients who clearly meet the legal criteria to be committed are advised by counsel for tactical reasons to enter the hospital as a voluntary patient.

The ITA requires that if there are less restrictive alternatives to hospitalization, that this be done. As an alternative to being sent to a mental hospital, detainees often agree to “less restrictive orders”. These are court orders that create a probation type of arrangement under which the patient must do things like take medications as prescribed or reside in a particular place or participate in outpatient treatment or stay away from certain people. If the patient violates the requirements, they may be taken directly to the hospital. In practice, however, ther is little or no supervision of the less restrictive order; and the person is not taken in unless s/he causes a new incident.

It is well to keep in mind that these alternatives do often have the desired effect of getting people to accept treatment. The failure of such arrangements is taken into account in subsequent proceedings.

Guardians

Many people, including many lawyers, assume that a court appointed guardian can have the ward “taken away” or “put in the hospital”. In some states this is true, but in Washington, the law is very, very clear that a guardian may not ever cause a ward to be involuntarily detained except under the terms of the ITA. In this regard, the guardian has no special powers and is given little special treatment by the system.

A guardian does, however, have access to information that is ordinarily not provided. When a person has been mentally committed, everything is confidential, and family or friends are prevented from getting virtually any information. A guardian of the person ordinarily has authority to authorize disclosure of confidential information, and this includes information compiled by DCR or mental hospitals. A guardian need only transmit a copy of the letters of guardianship and a written request for information. This can be a tremendous aid to families and other professionals.

A guardian also has a right to notice of any proceedings in the commitment matter. Again, mental commitment is a civil process in court and is in most ways a lawsuit like any other, but with specialized rules.

Landlords

In some circumstances the behavior of a person with a mental disability affects people around him or her, and this can become a particular concern of the landlord. Problems can include property damage, unhygienic conditions, noise or other disturbances, altercations with neighbors and the like.

In a situation in which the landlord is calling family or a guardian asking for the patient to be removed, the fact is that the only mechanisms for this under Washington law are either the ITA or eviction.

Very often, landlords are willing to tolerate these problems out of concern for the well-being of the tenant. One hardly wants to belittle a kindness to a person with mental illness. However, there are occasions when the kindest thing a landlord can do is to apply the terms of the rental agreement and evict the person. This situation arises when a person is very significantly impaired but does not meet the ITA’s criteria. If a person’s thinking is so disorganized that he or she would be unable to obtain shelter, the criteria for grave disability may be met, with the result that the patient receives treatment. This should not be advocated unless the patient is legitimately in violation of the lease. If the landlord is tolerant, one should hesitate to suggest eviction.

NOTES

This guide was originally written in the 1990s and was revised in 2000 and again in 2020. The statutes have been changed in various ways that may not be captured in the following narrative.

For example, a recent amendment applies the commitment process to persons with a “Substance Use Disorder”, which is defined as

a cluster of cognitive, behavioral, and physiological symptoms indicating that an individual continues using the substance despite significant substance-related problems. The diagnosis of a substance use disorder is based on a pathological pattern of behaviors related to the use of the substances.

and which must be documented by a “substance use disorder professional”. I have no experience with such commitments, but I strongly doubt they are readily applied to most substance abusers.

For another example, RCW 71.05.201 provides a process for an immediate family member or guardian or conservator of the person may petition the superior court for the person’s initial detention. I have not seen this used.

The above said, I believe that the described practices for interacting with the commitment process remain valid.

Any constructive criticism will be appreciated — Tom O’Brien