During the 1800s, mental illness was grossly misunderstood and treatment involved detention in “madhouses” where cages, chains and collars were the norm.1 “Public asylums for maniacs [were] regarded as places of confinement for such of its members as [had] become dangerous to the peace of society.”2 Patients were lumped into the general category of “insane” despite variations in symptoms among individuals.3 Vast improvements have occurred in the ensuing 200 years, including a better understanding of mental illness, more effective and humane treatment methods, and a focus on patients as individuals with dignity and rights. In response to the urging of mental health advocates and families, Illinois recently amended its Mental Health Code to facilitate involuntary admission of mentally ill individuals who will not consent to admission, reasoning that “a brief involuntary commitment is the only way to ensure someone with a mental illness returns to their medications and ceases to become a danger to themselves or others.”4 However, by lowering the standards for involuntary admission without changing the criteria for involuntary treatment, Illinois is at risk of unnecessarily restricting patient liberty,5 and backsliding toward the days of confinement without treatment.
This article begins with an examination of the procedures involved in involuntary psychiatric admission. Next, this article will discuss the criteria for involuntary admission and will cite specific cases, which apply the criteria imposed under the previous version of the Mental Health Code, followed by an analysis and contrast of those results to the requirements imposed by the amended Code. Further, this Article examines the procedures for involuntary treatment when patients refuse medication. Finally, this article will discuss the potential problems created by the amended Mental Health Code. The article concludes that admission and treatment criteria must be brought back into alignment in order to balance the conflicting goals of providing treatment and respecting patient liberty and autonomy.
I. Involuntary Admission to a Psychiatric Institution
The Illinois Mental Health and Developmental Disabilities Code6 governs all aspects of psychiatric treatment, including inpatient treatment. Hospitalization against a patient’s wishes represents a serious deprivation of liberty, not to be undertaken lightly.7 The Code establishes specific criteria for involuntary admission,8 and procedural safeguards exist to decrease the likelihood of unnecessary hospitalization. Anyone seeking to have a psychiatric patient admitted must complete a Petition for Involuntary Admission, which sets forth, inter alia, reasons that involuntary admission is necessary, specific facts that form the basis for that opinion, and contact information of witnesses who can verify those facts.9 The Petition must be accompanied by a Certificate completed by a physician, qualified examiner, or clinical psychologist who examined the patient within 72 hours prior to hospitalization.10 The Certificate must state that the examiner believes the patient is mentally ill and in need of immediate hospitalization, which must be supported by specific clinical observations.11 Completion of these steps will allow a patient to be admitted to a psychiatric hospital, but there are additional safeguards to insure that no patient is retained unnecessarily.
Within 24 hours after involuntary admission, the patient must undergo an independent clinical evaluation by a second psychiatrist, who must either complete a second Certificate verifying the need for inpatient admission, or must discharge the patient immediately.12 The Petition and both Certificates must be filed with the Circuit Court, and a hearing date must be set within five working days of the Court’s receipt of the documents.13 The patient must be given notice of the hearing, and may be represented by an attorney.14 If the judge determines that the patient is subject to involuntary hospitalization,15 the patient is ordered hospitalized for a period not to exceed 90 days. The patient may appeal this decision in the same manner as in any other civil decision,16 although during such appeal, he is retained in the hospital.
B. Criteria and Discussion
Clearly, the procedural “hoops” to be jumped through before admission and involuntary commitment of a psychiatric patient are indications of respect for the patient’s individual liberty and the intention not to infringe upon that freedom unnecessarily. Until the June 2008 amendments to the Mental Health Code were enacted, Illinois law reflected this important social policy.
1. Admission Criteria Under the Previous Mental Health Code
Prior to the recent amendments to the Mental Health Code, there were two criteria for involuntary psychiatric admission: having a mental illness that made one “reasonably expected to inflict serious physical harm upon himself or herself or another in the near future, which may include threatening behavior or conduct that places another individual in reasonable expectation of being harmed,”17 or having a mental illness that made one “unable to provide for his or her basic physical needs so as to guard himself or herself from serious harm without the assistance of family or outside help.”18
2. Case Law and Discussion
Case law illustrates the courts’ application of these criteria to situations where patients have appealed their involuntary commitments. When evaluating a patient’s dangerousness, courts are not required “to wait until actual harm results before hospitalization is warranted.”19 For example, the Fourth District upheld a patient’s commitment when her delusions caused her to act in potentially dangerous ways,20 such as refusing to eat because of fear that her food was being poisoned, and cutting her hair and setting it on fire in her sink.21 Although the patient’s behaviors had not yet caused any harm, the court affirmed the finding that she was subject to involuntary admission because it was reasonable to believe that if she continued to act on her delusions in these dangerous ways, harm would result.22
Conversely, the First District overturned a commitment decision for which the only basis was a prediction of future dangerousness.23 The patient had displayed a weapon to police officers and forced them to drive him around Chicago before eventually agreeing to be taken to a psychiatric hospital.24 The patient had no history of this type of behavior and, in fact, had a history of stability and of cooperation with prescribed medication.25 After admission, the patient revealed that he had lost his medication and was searching for it at the time of the incident.26 The court held that fear that the patient might fail to take medication in the future and become dangerous again was not only against the manifest weight of the evidence, but was not a sufficient justification for inpatient commitment at any rate.27
In examining a patient’s ability to care for him/herself, courts consider “whether that person (1) can obtain her own food, shelter or necessary medical care; (2) has a place to live or a family to assist her; (3) is able to function in society; and (4) has an understanding of money or a concern for money as a means of sustenance.”28 The Fourth District overturned a patient’s commitment when the patient, although homeless at the time of admission, planned to obtain a motel room or apartment upon discharge and was aware of the average rent for such accommodations; in addition, she ate well in the community and had not refused to eat during hospitalization.29 Courts have stated that “a person is free to live on the street, if the person chooses to do so,”30 and “[a] person may not be held against her will merely to improve her standard of living or because society may find it uncomfortable to see such people on the street.”31 The U.S. Supreme Court noted, “The mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution.”32
The Second District noted that evidence of a mental illness, in and of itself, does not warrant involuntary commitment. Specifically, a patient who stated that “voices” told him to go to the mall and play the banjo, and who used mineral oil to “mark” areas of the family home for his own protection was found subject to involuntary commitment by the trial court, but this was overturned on appeal.33 The appellate court noted, “[u]ndoubtedly, this behavior is odd and suggests that respondent was mentally ill; it does not, however, suggest that he is ‘unable to provide for his basic physical needs so as to guard himself from serious harm.’”34
Similarly, a patient who was mistrustful of others, who refused to take medication for headaches, and who wore warm clothes and sunglasses indoors was not subject to involuntary admission.35 The court stated, “[w]hile some of the above behavior might be unusual under certain conditions, we are unable to conclude that the totality of the circumstances in the case at bar indicates that respondent poses a threat to her own safety . . . [or] . . . that respondent would be unable to guard against serious physical harm.”36
In summary, under the previous Mental Health Code, predictions of future dangerousness based on the possibility that a patient may stop taking medication; homelessness; and even bizarre behavior and habits are all insufficient bases for the restriction of liberty that results from involuntary hospitalization.
3. Admission Criteria Under the Amended Mental Health Code
The June 2008 amendments to the Mental Health Code arose from the belief that the state’s mental health treatment laws were overly strict and made it difficult for concerned others – principally families of a mentally ill person - to help a mentally ill individual get needed treatment.37 The law was intended as a “dramatic expansion of the Illinois commitment standard that will allow families, mental health professionals, and law enforcement personnel to secure needed treatment for someone obviously overcome by the symptoms of mental illness without having to wait for an actual and immediate physical danger.”38 Specifically, the first criterion – dangerousness – was loosened by removing the words “reasonably expected to inflict serious physical harm upon himself or herself or another in the near future” and inserting “reasonably expected to engage in dangerous conduct.”39 Furthermore, “dangerous conduct” was defined as “threatening behavior or conduct that places another individual in reasonable expectation of being harmed, or a person’s inability to provide, without the assistance of family or outside help, for his or her basic physical needs so as to guard himself or herself from serious harm.”40 Although the second criterion for involuntary admission – inability to provide for one’s basic needs so as to guard oneself from harm – remains unchanged in the amended Code, inclusion of the same language in the definition of “dangerousness” virtually eliminates the previous distinction between dangerousness and inability to care for oneself, for purposes of involuntary admission.
Addition of a third criterion opens the door far wider to involuntary admission than under the previous Code. Under the amended Code, a person may be subject to involuntary admission if that person “because of the nature of his or her illness, is unable to understand his or her need for treatment and who, if not treated, is reasonably expected to suffer or continue to suffer mental deterioration or emotional deterioration, or both, to the point that the person is reasonably expected to engage in dangerous conduct.”41
The connection between mental illness and need for involuntary admission is attenuated, at best, with several inferential leaps required: 1) presence of a mental illness, 2) an inability to understand the need for treatment, 3) an expectation of continued deterioration without treatment, and 4) the deterioration will lead the person to engage in dangerous behavior. This allows involuntary admission based on a chain of speculation about what could possibly happen if a person is not treated.
4. Case Law and Discussion
The problematic nature of these relaxed standards becomes more apparent when viewed in light of cases decided under the previous Mental Health Code.42 Specifically, patients who were not subject to involuntary admission under the previous Code likely will be subject to involuntary admission under the new Code. For example, the homeless patient in Jakush43 was originally committed to inpatient hospitalization in the hopes that she would begin taking psychiatric medication after admission.44 Although the patient’s commitment was overturned on appeal under the old Code, reasoning under the new Code makes her subject to commitment. Specifically, her refusal to take medications might cause her to deteriorate in the future, and this deterioration might lead her to become dangerous. On the basis of this inferential leap between an otherwise stable and non-dangerous patient’s refusal to take medication and the possibility of future dangerousness, the patient could be committed to a psychiatric hospital. Another illustration is provided by the patient in Rovelstad45 who believed that voices were telling him to go to a local mall and play the banjo. This patient also refused medications at times. Treating staff speculated that his refusal of medications could possibly lead to a future inability to provide for his basic needs.46 Under the new Mental Health Code, this patient would be subject to commitment on two theories: reasonable expectation of “dangerous conduct,” which includes an inability to care for oneself,47 and a supposition that refusal to take medication could lead to future deterioration, which could lead to future dangerousness.48 Finally, the First District reversed a commitment order under the old Code, stating, “the refusal to take medication is not sufficient to justify an order of commitment . . . Such an order which rests upon the possibility or the prediction that an individual might fail to take medication could lead to the unacceptable result of permanent detention.”49 Significantly, this is the very type of prediction that the new Mental Health Code would have clinical staff make as the basis for involuntary hospitalization.
Therefore, refusal to take psychiatric medications can trigger involuntary admission under the “third prong” of the new Mental Health Code, if that refusal is seen as a possible cause of future deterioration, which itself may cause future dangerousness. As illustrated in the following section, this creates a problem in light of another section of the Mental Health Code.
II. Involuntary Treatment of Psychiatric Patients
It is important to note that involuntary admission is independent from involuntary treatment. That is, even after successfully petitioning for involuntary admission, clinical staff must demonstrate by clear and convincing evidence that circumstances exist requiring treatment over the patient’s objection.50 Illinois courts have consistently noted this distinction, explaining that a patient’s “right to refuse psychotropic medication is guaranteed by statute,”51 and “authorization to administer psychotropic medication against a patient’s will requires a separate judicial proceeding.”52
The Mental Health Code requires that a patient “shall be informed of his right to refuse medication and if he refuses, medication shall not be given unless it is necessary to prevent the respondent from causing serious harm to himself or others.”53 If a patient refuses medication, but a physician feels medication is necessary to prevent serious harm to the patient or others, medication may be given for up to 72 hours if the circumstances leading up to the need for emergency treatment are set forth in writing every 24 hours during that 72-hour period.54 The physician must document ways in which the patient has recently harmed himself or others, or in what manner the patient’s behavior suggests an imminent intent to cause such harm; and must certify that the patient has a past history of causing harm to himself or others when not taking medication.55 Further, the physician must detail alternative techniques that have been explored, and reasons that other treatments are not appropriate.56 In addition, within one hour of the patient’s first dose of medication, a nurse must document the presence or absence of improvement.57
If emergency treatment remains necessary for more than 72 hours, the physician must petition the court seeking an order for involuntary treatment.58 Before a court will grant the petition, it must be demonstrated by clear and convincing evidence that all of the following criteria are met:
(A) That the recipient has a serious mental illness or developmental disability.
(B) That because of said mental illness or developmental disability, the recipient currently exhibits any one of the following: (i) deterioration of his or her ability to function, as compared to the recipient’s ability to function prior to the current onset of symptoms of the mental illness or disability for which treatment is presently sought, (ii) suffering, or (iii) threatening behavior.
(C) That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in item (B) of this subdivision (4) or the repeated episodic occurrence of these symptoms.
(D) That the benefits of the treatment outweigh the harm.
(E) That the recipient lacks the capacity to make a reasoned decision about the treatment.
(F) That other less restrictive services have been explored and found inappropriate.
(G) If the petition seeks authorization for testing and other procedures, that such testing and procedures are essential for the safe and effective administration of the treatment.59
Clearly, courts understand that, like involuntary admission, forced medication represents a serious deprivation of liberty that should not be pursued unless absolutely necessary.
B. Problems Created by the Amended Mental Health Code
Although the standards for involuntary admission were loosened by the recent amendments to the Mental Health Code, making it easier to admit patients against their will, the standards for involuntary treatment remain unchanged. In practical terms, this means that it is easier to get a patient into the hospital, but no easier to get the patient any treatment if he refuses. Under the new Mental Health Code, patients are subject to involuntary admission because of an inability to understand the need for treatment, an expectation of deterioration, and possible future harm.60 However, these same patients have an absolute right to refuse medication once in the hospital,61 and they may not be treated against their will absent actual harm to the patient or others, or an imminent threat of such harm.62 Those advocating for changes to the Mental Health Code have unintentionally placed clinical staff in the catch-22 of having patients placed in their care and custody, but being completely unable to treat them. Therefore, the goal of allowing mentally ill individuals to be provided treatment “without having to wait for an actual and immediate physical danger”63 will not be achieved under the present Code.
Although there is neither a perfect solution nor an easy one, the previous Mental Health Code came closer to achieving a balance between the need to provide care for mentally ill individuals and the need to respect their civil liberties.64 Patients who met the criteria for involuntary admission likewise met the criteria to be given involuntary medication. Under the amended Code, patients who satisfy the less stringent admission criteria will seldom be deemed ill enough for involuntary medication. This places clinicians in the untenable position of having patients admitted, but being legally unable to treat them if they refuse medication.
Relaxing the involuntary medication standards to match the relaxed admission standards is not the answer, since making it easier to both hospitalize and medicate patients involuntarily violates their civil liberties. Keeping the standards for both involuntary admission and involuntary treatment high enough to insure that patients are not admitted or treated against their will unless absolutely necessary is the only way to prevent a backslide to the days when psychiatric hospitals warehoused patients with no possibility of treatment and no hope of recovery.
And they say many things
Of me – that I am mad
And that I never had a soul,
Or having one, have lost it.
What wonder, when
These close walls shut me in?65
1 John Conolly, The Treatment of the Insane Without Mechanical Restraints 16 (Eric T. Carlson, M.D. ed., Classics of Psychiatry and Behavioral Sciences Library 1990) (1856).
2 P.H. Pinel, A Treatise on Insanity 3-4 (D.D. Davis, M.D. trans., Classics of Psychiatry and Behavioral Sciences Library 1988) (1806).
3 Id. at 2.
4 Gov Blagojevich signs bill improving Illinois’ mental illness treatment law, Treatment Advocacy Center News, Sept. 14, 2007.
5 A discussion of the constitutional questions inherent in this issue is beyond the scope of this analysis.
6 405 Ill. Comp. Stat. Ann. 5/1-100 – 5/6-107. [hereinafter Mental Health Code or Code] (West 2008).
7 See People v. Ralls, 23 Ill. App. 3d 96, 318 N.E.2d 703 (5th Dist. 1974); In re Tuman, 268 Ill. App. 3d 106, 644 N.E.2d 56 (2d Dist. 1994); In re Rovelstad, 281 Ill. App. 3d 956, 667 N.E.2d 720 (2d Dist. 1996); In re Phillip E., 2008 WL 4119030 (5th Dist. 2008).
8 405 Ill. Comp. Stat. Ann. 5/3-600 – 5/3-611. (West 2008).
9 Petition for Involuntary/Judicial Admission, MHDD-5, IL 462-2005 (R-6-08).
10 Certificate, MHDD-6, IL 462-2006 (R-06-08).
11 405 Ill. Comp. Stat. Ann. 5/3-602 (West 2008).
13 405 Ill. Comp. Stat. Ann 5/3-611.
15 See discussion infra Parts I.B.1, I.B.3.
16 405 Ill. Comp. Stat. Ann. 5/3-816(b).
17 405 Ill. Comp. Stat. Ann. 5/1-119(1) (West 2004).
18 405 Ill. Comp. Stat. Ann. 5/1-119(2) (West 2004).
19 In re Lillie M., 375 Ill. App. 3d 852, 856, 875 N.E.2d 157, 161 (4th Dist. 2007) (citing In re Manis, 213 Ill. App. 3d 1075, 1077, 572 N.E.2d 1213, 1214 (1991)).
20 Lillie M., 375 Ill. App. 3d at 857, 875 N.E.2d at 162.
23 People v. Nunn, 108 Ill. App.3d 169, 438 N.E.2d 1342 (1st Dist. 1982).
24 Id. at 171, 438 N.E.2d at 1343.
26 Id. at 174, 438 N.E.2d at 1345.
27 Id. at 173-74, 438 N.E.2d at 1344.
28 In re Rovelstad, 281 Ill. App. 3d 956, 968, 667 N.E.2d 720, 727 (1996).
29 In re Judith Jakush, 311 Ill. App. 3d 940, 945, 725 N.E.2d 785, 789 (4th Dist. 2000).
30 In re Long, 237 Ill. App. 3d 105, 110, 606 N.E.2d 1259, 1263 (2d Dist. 1992) (citing In re Manis, 213 Ill. App. 3d 1075, 1078, 572 N.E.2d 1213 (3d Dist. 1991)).
31 Id. (citing O’Connor v. Donaldson, 422 U.S. 563, 575 (1975)).
32 O’Connor v. Donaldson, 422 U.S.563, 575 (1975).
33 Rovelstad, 281 Ill. App. 3d at 968, 667 N.E.2d at 727.
35 In re Tuman, 268 Ill. App. 3d 106, 112, 644 N.E.2d 56, 60 (2d Dist. 1994).
36 Id. at 112-13, 644 N.E.2d at 60.
37 Gov Blagojevich signs bill improving Illinois’ mental illness treatment law, Treatment Advocacy Center News, Sept. 14, 2007.
38 S.B. 234 (Ill. 2007), analysis available at http://www.psych laws.org/GeneralResources/Analysisof SB234.htm.
39 405 Ill. Comp. Stat. Ann. 5/1-119(1) (West 2008).
40 405 Ill. Comp. Stat. Ann. 5/1-104.5 (West 2008) (emphasis added).
41 405 Ill. Comp. Stat. Ann. 5/1-119(3) (West 2008).
42 Case law addressing commitment appeals under the new Code is not yet available as of this writing.
43 In re Judith Jakush, 311 Ill. App. 3d 940, 725 N.E.2d 785 (4th Dist. 2000).
44 Id. at 946, 725 N.E.2d at 790.
45 In re Rovelstad, 281 Ill. App. 3d 956, 667 N.E.2d 667 (2d Dist. 1996).
46 Id. at 960, 667 N.E.2d at 722.
47 405 Ill. Comp. Stat. Ann. 5/1-119(2) (West 2008).
48 405 Ill. Comp. Stat. Ann. 5/1-119(3) (West 2008).
49 People v. Nunn, 108 Ill. App. 3d 169, 174, 438 N.E.2d 1342, 1345 (1st Dist. 1982).
50 In re Jakush, 311 Ill. App. 3d 940, 947, 725 N.E.2d 785, 790 (4th Dist. 2000) (citing 405 Ill. Comp. Stat. Ann. 5/2-107.1(a)(4)).
51 Jakush, 311 Ill. App. 3d at 946, 725 N.E.2d at 790 (quoting In re Schumaker, 260 Ill. App. 3d 723, 730, 633 N.E.2d 169, 174 (2d Dist. 1994)).
53 405 Ill. Comp. Stat. Ann. 5/3-608 (West 2008).
54 405 Ill. Comp. Stat. Ann. 5/2-107(b) (West 2008).
55 Emergency Medication Initial Determination, RO-63, 2/22/08.
58 405 Ill. Comp. Stat. Ann. 5/2-107(d) (West 2008).
59 405 Ill. Comp. Stat. Ann. 5/2-107.1(a-5)(4)(A) – (G) (West 2008); Petition for Administration of Authorized Involuntary Treatment, MHDD-25, IL462-2025 (R-3-01).
60 405 Ill. Comp. Stat. Ann. 5/1-119(3) (West 2008).
61 405 Ill. Comp. Stat. Ann. 5/3-608 (West 2008).
62 405 Ill. Comp. Stat. Ann. 5/2-107(a) (West 2008).
63 S.B. 234 (Ill. 2007), analysis available at http://www.psych laws.org/GeneralResources/AnalysisofSB234.htm.
64 In re Tuman, 268 Ill. App. 3d 106, 110, 644 N.E.2d 56, 58 (2d Dist. 1994).
65 Anonymous patient at Elgin State Hospital, Elgin, IL, To Nancy Shores of the Chicago Tribune, in Poetry of the Insane 43 (Charles E. Mayos, M.D., ed., 1933).
Mary I. Wood, B.A. (Psychology) 2006, Northern Illinois University; J.D. expected 2009, Northern Illinois University College of Law.