Public Platform on Involuntary Commitment
(as adapted from the platform of NAMI National)
NAMI Delaware believes that all people should have the right to make their own decisions about medical treatment. However, NAMI Delaware acknowledges that there are individuals with brain disorders such as schizophrenia and bipolar disorder who, at times, lack the insight or judgment to determine their need for medical treatment due to their illness. NAMI Delaware believes current state laws and policies governing involuntary commitment and/or court-ordered treatment to be inadequate to meet the needs of these individuals. Examples of this are: Individuals clearly in need of treatment needlessly deteriorate because they do not meet the existing standard of danger to themselves or to others. This reduces their opportunity for recovery and increases the cost to Delaware and to the individual. Uninsured Delawareans have few reliable treatment options, particularly when they require intensive services such as inpatient care. Currently, payment for inpatient treatment is subsidized by the state only under the condition of involuntary commitment. In accordance with this belief, NAMI Delaware proposes that: Delaware’s Division of Mental Health, including the Delaware Psychiatric Center, should reaffirm its role as the safety net for the mentally ill by guaranteeing treatment for citizens in need of such treatment, but unable to cover the cost. This must include the full spectrum of treatment (inpatient and outpatient modalities) as well as voluntary and involuntary commitment status. Delaware should provide effective, comprehensive, community-based systems of care for persons suffering from brain disorders that are readily available and accessible. This will diminish the need for involuntary commitment and/or court-ordered treatment. Delaware should adopt and/or promote methods for facilitating communications about treatment preferences among individuals with brain disorders, family members, and treatment professionals. This would be in keeping with the President’s New Freedom Report’s recommendation to develop a consumer- and family-driven treatment system. Delaware should only use involuntary inpatient and outpatient commitment and court-ordered treatment when: There is a serious mental illness/brain disorder present, Treatment can reasonably be expected to improve or prevent worsening of the symptoms associated with this diagnosed condition, A person cannot give informed consent for the admission/treatment, and The individual is not otherwise appropriate for voluntary admission. Delaware should adopt broader, more flexible standards that would provide for involuntary commitment and/or court ordered treatment when at least one of the following conditions is present as a direct result of a brain disorder: An individual is gravely disabled. This means that the person is substantially unable, except for reasons of indigence, to provide for any of his or her basic needs, such as food, clothing, shelter, health or safety; and/or an individual is likely to substantially deteriorate if not provided with timely treatment; and/or
An individual lacks capacity or judgment to make an informed decision about his or her need for treatment, care, or supervision as a result of the brain disorder; and/or An individual is either a passive or active danger to others or to self. Delaware courts should interpret the “dangerousness” standard more broadly than “imminently” and/or “probably” dangerous. Current interpretations of laws that require proof of dangerousness often produce unsatisfactory outcomes because individuals are allowed to deteriorate needlessly before involuntary commitment and/or court-ordered treatment can be instituted. Delaware should adopt the legal standard of “information and belief” to justify emergency commitments for an initial 24 to 72 hours. For involuntary commitments beyond the initial period, the legal standard should be “clear and convincing evidence.” Involuntary commitments and/or court-ordered treatment must be periodically subject to administrative or judicial review to ascertain whether circumstances justify the continuation of these orders. Delaware should also allow for consideration of past history in making determinations about involuntary commitment and/or court-ordered treatment because past history is often a reliable way to anticipate the future course of illness, and is one factor used to try to predict future behavior, to the limited extent that such predictions are possible. Delaware should assign the responsibility for executing court-ordered treatment to physicians and/or psychiatrists who– in conjunction with the individual, family, and other interested parties– must develop a plan for treatment within the bounds of required doctor-patient confidentiality and consistent with the doctrine of least restrictive alternative. Delaware should consider court-ordered outpatient treatment as a less restrictive, more beneficial, and less costly treatment alternative to involuntary inpatient treatment. The current system should be evaluated for its effectiveness at meeting the needs of the individuals under its purview. Delaware should take proactive steps to better educate justice systems and law enforcement professionals about the relationship between brain disorders and the application of involuntary inpatient and outpatient commitment and court-ordered treatment. Delaware should not utilize the procedures, facilities, vehicles, and/or restraining devices ordinarily utilized for those suspected, accused, or convicted of crime in connection with mentally ill individuals unless they fit those categories. Delaware should further devise and implement a procedure to transport those in psychiatric crisis in which medical personnel act as the first responders rather than police. A police response incorrectly implies that mentally ill individuals are inherently a danger to the public, while potentially causing further distress and fright to the individual in crisis. The only times that police should be the primary responders are when the individual poses an immediate danger to others through the threat or use of physical force or weapons. Delaware should mandate that private and public health insurance and managed care plans must cover the costs of involuntary inpatient and outpatient commitment and/or court-ordered treatment.
NAMI Delaware further believes the following practices used in the State of Delaware to be in the best interests of those with mental illness, and recommends the continuation of such practices. Individuals are guaranteed independent administrative and/or judicial review in all determinations of involuntary commitment and/or court-ordered treatment, with appropriate legal representation who is/are knowledgeable about brain disorders and the opportunity to submit evidence in opposition to the involuntary commitment and/or court-ordered treatment. Involuntary commitment and/or court-ordered treatment determinations are made expeditiously and simultaneously in a single hearing so that individuals receive such treatment in a timely manner. The role of the courts is limited to review to ensure that there are no violations of individuals’ rights or the requirements of due process. Medical decisions should continue to remain between the patient (or their legal guardian) and their clinician/doctor.