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Column: The Threshold for Involuntary Commitment Needs Changing

When should society intervene if a person shows signs of mental illness?

As with the shooters at Virginia Tech University, in Tucson, Ariz. and in Aurora, Colo., there were ample warnings that Aaron Alexis was experiencing mental distress before he killed 12 people at Washington’s Navy Yard.

Police in Newport, R.I., did nothing to help Alexis when he complained about hearing voices and being zapped by skin-vibrating microwaves.

They were not legally obligated to.

In 1975, the Supreme Court ruled in O’Connor v. Donaldson that the state “cannot constitutionally confine ... a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”

That decision established our legal threshold of posing a danger to one’s self or others.

The next year, a federal court ruled in Lessard v. Schmidt that involuntary commitment is permissible only when “there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others.” The court required that in civil commitment proceedings, people with mental illness receive all the protections accorded to criminal suspects — including the right to counsel, the right to remain silent, exclusion of hearsay evidence and a standard of proof beyond a reasonable doubt.

In 1979, the Supreme Court decision in Addington v. Texas raised the burden of proof for involuntary commitment from a “preponderance of the evidence,” the usual standard in civil cases, to “clear and convincing” evidence. These decades-old rulings have had a chilling impact.

In 2002, a Fairfax County, Va., emergency room turned me away because my college-age son, who was delusional and had been hospitalized twice for treatment of bipolar disorder, was deemed not sick enough to hospitalize. Police advised me to claim he was dangerous to get him admitted. Three years later, I called the county’s Mobile Crisis Unit for help but was again told that I had to wait until my son became dangerous. When he did, that unit refused to come because the dispatcher decided, based on my call, that my son was too dangerous. Instead, the police came and shot my son twice with a stun gun.

Our societal fear of involuntary commitment is rooted in our One Flew Over the Cuckoo’s Nest past, when innocents were warehoused in state asylums without legal protections and with little hope of release. But times and circumstances have changed.

Other nations have progressed to a “need for treatment” standard, which considers the potential for danger but does not require it.

Under the 1983 Mental Health Act in England and Wales, individuals can be forced into treatment if they have a mental disorder. Patients are examined by a licensed psychiatrist and a doctor, including one who has known the patient previously. If they agree that the person should be detained in the interest of his health, his safety or the protection of others, an order is presented to a social worker trained to determine whether commitment is warranted. Patients are held for up to 28 days before their cases are reviewed by a mental health tribunal composed of a doctor, lawyer and layman.

In France, people who show behavior consistent with a mental disorder can be held for observation for up to 72 hours at the request of family or friends. Doctors, social workers or police can request the hold if they observe or suspect dangerous behavior. A patient must be seen by a team of psychiatrists within the first 24 hours and again at the end of the 72-hour hold. At least three doctors must agree that the person needs to be hospitalized. If that happens, the patient is hospitalized for 12 to 15 days before the case goes to a judge.

After the Virginia Tech killings, I served on a task force that helped loosen the state’s criteria for “imminent danger.” Opponents predicted a flood of unwarranted forced commitments. In fact, the number of forced commitments in Virginia has not jumped or dropped.

Paul Appelbaum, director of psychiatry at Columbia University, has suggested that reductions in community services and capacity have played a much greater role than legal criteria in reducing the number of voluntary and involuntary treatment admissions in recent years.

In Fairfax County, someone seeking help at a community treatment center faces a five- to seven-day wait for an appointment. Someone forced into a Virginia hospital stays, on average, six to seven days — if a treatment bed can be found. Virginia cut its budget for mental health programs 9 percent from 2009 to 2011; Fairfax alone has lost $16 million in the past five years.

Millions of Americans have diagnosable mental disorders. But most of them are more likely to be victims of crime than perpetrators. They are unfairly stigmatized after mass shootings.

Rep. Tim Murphy, R-Pa., a psychologist turned politician, noted on the House floor this month that 2 million of the 11 million American adults with a serious mental illness are not receiving treatment. Approximately 1,000 homicides a year are perpetrated by the seriously mentally ill, he said.

So how do we protect the civil rights of mentally ill people while stopping the violent minority? Adopting a “need for treatment” standard would enable relatives, police and mental health professionals to intervene earlier. But until our nation builds and funds a community-based mental health system that provides user-friendly treatment oriented toward recovery, the threat of mass shootings will not be reduced.

Pete Earley is the author of Crazy: A Father’s Search Through America’s Mental Health Madness.