Confusion About Outpatient Commitment

To the Editor: The special section on outpatient commitment in the March issue was timely and well received. However, I have found that advocates both for and against outpatient commitment as well as researchers on this topic tend to make two errors that detract from our ability to have a useful discussion of the merits of this concept.

First, outpatient commitment is not a treatment in the sense that a particular psychotropic medication or a form of cognitive or behavioral therapy is a treatment. There is no consensus about what outpatient commitment means, in terms either of a legal definition or of a treatment regimen. Indeed, there is no agreement about what it is supposed to accomplish. The lack of agreement makes it difficult to engage in meaningful discussion about whether outpatient commitment works and whether it violates the right of persons with mental illness to some level of autonomy. The articles in your special section demonstrate this lack of agreement.

Second, it is not surprising that we cannot agree on the meaning of outpatient commitment, because current constitutional and statutory standards for involuntary inpatient commitment are not well understood. One reason is that statutory standards vary wildly among the 50 states. In addition, in my experience it has been difficult to obtain agreement among practitioners—including lawyers, judges, psychiatrists, psychologists, and social workers—about what the existing commitment standard is in a single jurisdiction.

Most of the confusion and disagreement I have observed in questions of inpatient commitment center on the nature of a finding of dangerousness. For example, in Illinois, involuntary commitment can be ordered if the respondent is "reasonably expected to inflict serious physical harm upon himself or another in the near future." No court decision has provided more specific meaning to the phrase "in the near future." Nor is it likely that state or federal courts would find that the U.S. Constitution places a narrow time limit on predictions of future harm. None of the U.S. Supreme Court's decisions in this area state or imply such a limitation. Commitment is a preventive measure, and as such it raises only a single constitutional or policy issue: how likely must the future harm be in order to justify what the courts have regularly—and correctly—described as a massive curtailment of liberty?

Commitment is about prevention of future harm. To describe a person as being "currently dangerous" is to use these words in a confusing manner. Of course, a person may be committed after he or she has engaged in behavior harmful to self or others if we have sufficient reason to believe that the person will do further harm in the future. However, unlike a criminal conviction and a sentence of imprisonment, the goal of involuntary commitment is to prevent future harm, not to wait until it has already occurred and then impose hospitalization as a punishment.

This misunderstanding leads proponents of outpatient commitment to suggest that we must lower our commitment standards in order to make effective use of this option. They plausibly argue that it would not be safe to conditionally release someone who is likely to cause harm in the near future. This same misunderstanding leads opponents to condemn outpatient commitment as an expansion of the coercive power of the state. But if persons who are subject to outpatient commitment meet the existing inpatient commitment standard, then outpatient commitment is simply the embodiment of the "least restrictive environment" concept.

Mr. Heyrman is clinical professor of law at the University of Chicago Law School.