Document Type


Publication Date

Fall 1999


Throughout the United States, mentally ill persons are confined against their will in psychiatric hospitals as a result of being accused of dangerous behavior. Some are committed involuntarily by a judge after an administrative hearing during which they are afforded legal representation, a right to be present, and important due process protections, including the right to cross-examine witnesses and present one's own witnesses. However, a significant number of individuals, initially confined in psychiatric institutions for allegedly posing a danger to life or safety, never see an impartial judge, lawyer, or even a family member. These mentally ill individuals are not involuntarily committed. They are committed, without any benefit of due process protections, as voluntary patients.

The legal and medical implications of imposing voluntary status to a patient being admitted to a psychiatric hospital are of paramount importance. This Article focuses primarily on the specific criteria to be used in determining whether a patient's admission into a psychiatric hospital is voluntary. The questions it seeks to answer include: should psychiatrists be required to administer a mental status exam? Should witnesses be present at the time the person is voluntarily admitted and what, if any, documentation should be required? Should the mental disorder diagnosis of the patient be a major factor in determining competence to give voluntary consent? Should periodic review be required to determine whether the person continues to meet the criteria for voluntary admission? This Article will make specific recommendations as to when a psychiatric hospital will be permitted to accept and treat a mentally ill person as a voluntary patient and will ask what the legal significance is of the phrase "knowingly and competently" as used in defining consent to hospitalization.

Related to its primary focus, this Article examines the process through which a mentally ill person is voluntarily confined to a psychiatric hospital. It reviews diagnostic methods in order to help identify the existence of patient coercion. It discusses the need for a waiting period before the time the hospital assigns patient status and the time a patient signs an admission form. It also discusses the relevance of the proximity between the time a patient signs the form and his initial confinement involuntary civil commitment hearing. In particular, the Article explores whether there are certain time periods during the initial observation status of a patient in which there is more likely to be stress, anxiety, misunderstanding, coercion, or clear understanding as to the significance of the voluntary status.

A further aspect of the article is an exploration of the legal issues surrounding voluntary confinement. The questions addressed in this regard include: should a legal guardian or power of attorney be permitted to voluntarily admit a person into a psychiatric facility? What are the legal implications of an advanced medical directive or living will? Should an attorney be consulted by the patient prior to any voluntary admission, and should a judge review the voluntary admission to ensure that the patient is legally competent to be voluntarily admitted? What is the relevance of a prior court determination of the patient to being found legally incompetent?

Voluntary psychiatric hospitalization should be the result of a competent and informed decision arrived at within a non-coercive environment. Hospitalization based on anything less is not only involuntary, but it is an infringement of personal liberty. Because of the uncertainties surrounding voluntary patient status-uncertainties exacerbated by the absence of due process protections-the criteria and procedures of voluntary admission demand careful and thorough scrutiny. By ensuring that voluntary admission is in fact voluntary, such scrutiny is the first step in protecting a mentally ill patient's personal liberty.



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