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Fordham Urban Law Journal



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When a dangerously mentally ill person is in need of in-patient psychiatric hospitalization, the apparatus for involuntary civil commitment goes into motion. As a result, a mentally ill person can be confined against his or her will, to remain in the hospital indefinitely. The mentally ill person’s freedom depends on the outcome of a single hearing. The civil commitment process raises a number of legal questions: What are the constitutional protections against self-incrimination and the right to remain silent? Who presides over the hearing? Do the rules of evidence apply, specifically hearsay? Is the burden of proof standard by the preponderance of evidence, clear and convincing, or beyond a reasonable doubt? Should the mentally ill person have the right to an independent evaluation of his or her psychiatric condition to contest the view of the hospital psychiatrist? Is the adversarial hearing process best suited to address the need for in-patient hospitalization? Should legal guardians and those designated as power of attorney be given the authority to voluntarily admit a patient into a psychiatric hospital? This Article will explore the current involuntary civil commitment process for confining a mentally ill and dangerous person in a psychiatric hospital. A criminal defendant is often guaranteed greater protections than a mentally ill person facing involuntary civil commitment. As a person’s freedom is at stake, the serious nature of confinement warrants a critical review of how we address the need for psychiatric treatment of our dangerously mentally ill. Part I will examine the government’s power to confine a mentally ill person and the minimum due process safeguards for involuntary admission. Part II will explore the applicability of the constitutional right to remain silent in civil commitment proceedings. Part III will discuss the authority of mental health professionals to testify at the civil commitment hearings and consider issues of privileged communication. Parts IV and V will look at issues pertaining to the rules of evidence, ranging from the burden of proof to hearsay evidence as heard by the hearing judge. Parts VI and VII will analyze respectively the right to an independent psychiatric evaluation and alternative procedures to resolve the determination of the need for hospitalization. Part VIII will address the rights of others to consent to voluntary hospitalization of a mentally ill person, including guardians, persons with power of attorney, and parents of minor persons. Part IX will make recommendations for improving the involuntary civil confinement process. This Article provides an analysis of the current system and practical, concrete suggestions for improving the involuntary civil confinement process through the eyes of the attorney representing the mentally ill client facing involuntary psychiatric hospitalization.

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