Commitment Proceedings Research Articles

Psychiatric Advance Directives: A Call for Humanization

Psychiatric Advance Directives: A Call for Humanization

No Exceptions to the Rules: Professional Ethics Should Apply to Sexual Offender Civil Commitment Proceedings

We review the non-punitive intents and goals of sexual offender civil commitment ("SOCC") proceedings. We apply the impacts of open courtrooms in SOCC hearings to what is known about the provision of effective, ethical, and constitutional interventions to those committed and we examine whether open proceedings are consistent with evidence-based practices, including the risk, needs, and responsivity principles. The use of open courtrooms in SOCC proceedings presents numerous barriers to ethical, effective, and efficient interventions. Open courtrooms fuel treatment resistance, low treatment enrollment, exacerbation of risk factors, and mental conditions, and they disrupt protective factors, undermining the integrity of SOCC systems. These negative consequences are punitive and inconsistent with evidence-based practices, the RNR principles, and do not facilitate positive treatment outcomes. The SOCC's purpose is to prevent sexual re-offense by helping those committed improve their sexual offense risk-related mental conditions. Open courtrooms and the harm they cause undermine the constitutionality pillars of SOCC proceedingsand are inconsistent with best practice principles. Legislators, judges, attorneys, and policymakers should monitor and reform courtroom procedures to ensure they are consistent with evidence-based practices and the non-punitive intent and goals of civil commitment.

Videoconferencing of Involuntary Commitment Hearings in the COVID Era.

Involuntary commitment hearings have been conducted utilizing videoconferencing technology for several years. There is limited information available in the published psychiatric literature pertaining to the use of this technology for commitment proceedings. The University of North Carolina Hospitals adopted a remote videoconferencing (tele-hearing) format for its civil commitment proceedings in response to the COVID-19 pandemic, and this provided us with the opportunity to investigate the use of such an arrangement. In this article, we review the use of videoconferencing for commitment hearings. We also review select case law related to the utilization of this technology for commitment hearings, which reveals that the courts have not been in full agreement about the legality of a virtual commitment tele-hearing format. Given that the general use of virtual platforms has expanded during the COVID-19 pandemic and many individuals and organizations are gaining confidence in operating this technology, more institutions may decide to shift to a virtual commitment scheme or make a commitment tele-hearing format permanent after the pandemic.

Suicide Screening and Surveillance of Students, Discrimination, and Privacy: The Garrett Lee Smith Memorial Act

The Garrett Lee Smith Memorial Act (GLS) was first enacted in 2004 for the purposes of early screening, intervention, and prevention of suicide in students 10 to 24 years of age, and to hire more college counselors. More than 16 years later, GLS suicide prevention programs have not been found to be effective in reducing suicide rates, while their harms have not been considered. This Article reviews the state of the evidence on school suicide prevention and explores the suicide surveillance of the GLS, its systems of peer-to-peer monitoring and reporting of marginalized students “at risk”—students with disabilities, racial/ethnic, sexual, and religious minorities, victims of bullying, students with homelessness or foster care records, and other suicide risk factors. It explores the GLS public health approach to address the burdens of suicidal students, isolate suicide risks, and avoid suicide contagion. It also describes possible harms of the GLS suicide surveillance approach: stigmatization; violated privacy; estrangement from peers, parents, therapists and other social supports; police involvement and warrantless searches; potential exacerbation of suicidality; and restricted civil rights in non-school settings such as employment and involuntary commitment proceedings. It then compares the threats imposed by school surveillance for violence and suicide and suggests that paternalistic justifications might account for the relative lack of concerns raised so far regarding the latter. The Article then briefly considers the functions of participating in suicide surveillance for teachers and staff, and concludes with recommendations to repeal the GLS.

Initiating Federal Civil Commitment Proceedings Following Competency Evaluation

In Sealed v. Sealed , 802 Fed. Appx. 138 (5th Cir. 2020), the U.S. Court of Appeals for the Fifth Circuit in an unpublished opinion ruled that a certificate of dangerousness to initiate civil commitment procedures under federal statute 18 U.S.C. § 4246 (1997) need not be filed during the time

A Study of Criminal Defendants Adjudicated Non-Restorable to Competency to Stand Trial

This study examines the demographic, clinical, and criminal characteristics of ninety-nine felony defendants in a primarily rural county in Arizona who were referred for clinical evaluation for competency to stand trial. Ninety-two of these people had their competency status adjudicated during the time period relevant to the study, sixty of whom were ultimately restored to competency and thirty-two of whom were determined to be non-restorable to competency. Of those in the latter group, most had serious mental illnesses or intellectual disabilities. Additionally, nineteen (59.4%) of the non-restorable defendants were referred for civil commitment proceedings, all but seven of whom were ultimately ordered into involuntary treatment. Only three (3) of the ninety-nine defendants in the study re-offended and were referred back into a restoration of competency program during a five-year period.

The Lack of Evidentiary Standards in Texas Sexual Predator Civil Commitment Proceedings

The current legal landscape of evidentiary standards in Texas is one of inconsistency and uncertainty. The civil commitment proceedings of sexually violent predators are governed by the Texas Rules of Evidence -- until they are not. The Texas Health and Safety Code provides for the admission of evidence that is otherwise inadmissible under the Texas Rules of Evidence, which results in inconsistency and uncertainty in the application of the Texas Rules of Evidence in civil trials. The most concerning aspect of the inconsistency and uncertainty that is produced by the application of the Texas Health and Safety Code is the admissibility of penile plethysmographs. However under the Texas Rules of Evidence, expert testimony that relies solely on penile plethysmographs would not be admissible under a Rule 702 Daubert v. United States analysis. If penile plethysmographs are only one factor out of many considered by the expert witness, then the basis for the expert’s opinion -- the offender’s penile plethysmograph results -- would be inadmissible under Rule 705 and Rule 403. Furthermore, the holding of Old Chief v. United States should be expanded to allow for stipulations for the basis of the expert’s opinion when the basis of the expert’s opinion fails the Rule 403 balancing test. In addition to revising the Texas Health and Safety Code, the Texas Legislature should expand the use of stipulations to allow for the basis of the expert’s opinion to be stipulated to. By explaining the use of stipulations, the basis of the expert’s opinion, while otherwise inadmissible, would still assist the jury by helping them understand the expert’s opinion. While the current legal landscape if inconsistent and uncertain, the Texas Legislature has the ability to act and ensure basic evidentiary standards are upheld by revising Chapter 841 of the Texas Health and Safety Code. This Article aims to outline the evidentiary inconsistencies between the Texas Rules of Evidence and the Texas Health and Safety Code in relation to the admissibility of penile plethysmographs in the civil commitment proceedings of sexually violent predators. Furthermore, this article contains recommendations concerning how these inconsistencies should be managed in order to ensure consistent trial outcomes and preserve the integrity of the court.

The Right to Self-Representation in Civil Commitment Proceedings

The Montana Supreme Court, in In re S.M. , 403 P.3d 324 (Mont. 2017), affirmed the lower court's refusal to allow S.M., a defendant against a petition for involuntary commitment, to waive his right to counsel. The court ruled that the relevant Montana statute does not violate the claimant's Sixth or

Resource Document on Psychiatric Violence Risk Assessment

The APA published a Task Force report, “Clinical Aspects of the Violent Individual,” in 1974 (1). Since then, the assessment of violence risk by psychiatrists has assumed increased prominence (2, 3). At the same time, significant changes have taken place both in the contexts in which psychiatrists assess risk and in the techniques that help them do so. Although violence risk assessment has become more prominent in the last 40 years, assessing the various forms of clinical risk has always been integral to psychiatry. It is a necessary part of providing safe and effective outpatient psychiatric care. It is essential element also of proper decision making around hospital admission and discharge and of providing a safe environment to patients and those who care for them. Risk assessment and risk management are practiced in a diverse array of settings, including emergency rooms, hospital consultation services and outpatient clinics. Like other aspects of psychiatric practice, risk assessment is a potential source of legal liability. Psychiatric risk assessments are also used by courts to help them make a range of important decisions, including the involuntary commitment of patients to hospitals and those concerning child custody. In criminal cases, psychiatric judgments inform decisions concerning the placement of mentally disordered defendants prior to trial and the sentences the same defendants receive if convicted (4). Often, as with civil commitment proceedings and the appointment of a conservator, psychiatrists have to provide evidence on risk while continuing to provide care to the patient. As with other aspects of risk assessment in legal settings, the needs of courts can present ethical challenges to clinicians which are different from those encountered in other areas of psychiatric practice. This document reviews the changes that have occurred since 1974 in the context in which psychiatric risk assessment is conducted, the processes by which risk is assessed, the accuracy that can be expected of psychiatrists seeking to assess risk and the ethics of risk assessment. The general principles outlined here are intended to provide a background to the detailed descriptions of risk assessment and management covering particular patient groups, such as children and adolescents, and particular areas of psychiatric practice, such as psychiatric report writing (5), that have been published since 1974.

Involuntary civil commitment: Communicating with the court regarding “danger to other”.

Beginning in the 1990s, researchers in the field of violence risk assessment recognized that even the most accurate and valid assessment could not assist fact-finders if the information was communicated in an unclear, imprecise, and/or incomplete manner (Monahan & Steadman, 1996; Schopp, 1996). The purpose of the current study was to investigate judges' opinions regarding the probative value of risk communication messages in civil commitment proceedings. Three types of risk communication messages were investigated: (1) description; (2) prediction; and (3) management. Additionally, the risk prediction model was investigated more in-depth by varying the format used to communicate the prediction: (1) categorical; (2) frequency; and (3) probabilistic. A national sample of 403 judges completed the study and via random selection, each received one of 10 risk vignettes. The vignettes described a situation in which a person underwent an evaluation for civil commitment based on the danger to other criteria; danger to self criteria was not at issue in this case. Risk messages and risk level were systematically varied. This study found that the risk models (i.e., description, prediction, and management) were viewed as equally probative. However, within the risk prediction model, categorical messages were viewed as the having the highest probative value. Results also indicated that of the three models, the risk prediction model led to rulings that are more strict than the other risk models, but no one risk prediction format resulted in higher restrictiveness. Results of this study can be used to provide mental health professionals some guidance as to how to present their data such that judges find the information easy to interpret and probative to their decisions.

Voluntary psychiatric hospitalization and patient-driven requests for discharge: a statutory review and analysis of implications for the capacity to consent to voluntary hospitalization.

Along with the advances in civil rights protections for psychiatric patients since the 1970s, so-called voluntary inpatient psychiatric admissions have become common. In most U.S. states, however, these voluntary admissions abridge the rights of patients through legal provisions that limit the conditions under which patients can be discharged upon their request. This phenomenon, including variations in the state laws governing requests for discharge from voluntary psychiatric hospitalization, has received little attention in the psychiatry literature. Using Lexis-Nexis, PubMed, and Web of Science, we conducted a review of state laws regarding patients' legal rights to request discharge from voluntary hospitalization. Our hypothesis was that most states would have provisions limiting access to immediate discharge for patients whose psychiatric admission had been voluntary. Our findings from the review indicate that 49 of the 51 jurisdictions (50 states plus the District of Columbia) have provisions about patients requesting discharge from voluntary psychiatric admission. The majority of states employ a 72-hour period in which patients can be held following a request for discharge from hospitalization. As a general rule, after this evaluation period, either the patient must be discharged, or the facility must initiate involuntary commitment proceedings. Given these provisions, we explore the range of clinical admission procedures and whether voluntary admissions are truly voluntary. We also discuss the implications of our analysis for assessing the decisional capacity of patients seeking voluntary psychiatric admission.

The presumption of dangerousness in sexually violent predator commitment proceedings

Twenty states, the District of Columbia, and the federal government have adopted sexually violent predator (SVP) Laws, which permit the post-incarceration confinement of persons who: (1) have a previous conviction or charge for a sexual offence; (2) suffer from a mental abnormality; and (3) are likely to engage in future acts of sexual aggression. Although most who are convicted of a sexual offence will not be subject to SVP commitment, a burgeoning body of research indicates that commitment is highly likely once the decision is placed in the hands of the jury. The high rate of commitment suggests that there might be a presumption of dangerousness in these proceedings, possibly stemming from the previous conviction requirement. This potential explanation was tested in the current experiment. Jury-eligible participants (n1⁄4 190) were provided with varying degrees of information pertaining to the SVP commitment criteria. Some participants were told only that a person had been referred for an SVP commitment proceeding, whereas others were given information relevant to some or all three of the legal criteria. The rate of commitment did not vary as a function of the information provided. The mere fact that a respondent had been referred for an SVP proceeding was sufficient for a majority of participants to authorize commitment. We then calculated participants’ implicit operationalization of the ‘likely to offend’ criterion. On average, participants require the risk of recidivism to exceed 31% (range 20–40%) to effectuate commitment. These findings raise concerns about whether the constitutionally required due process occurs in SVP commitment proceedings.

The Application of Article 102 TFEU by the European Commission and the European Courts

While the Commission did not adopt any Article 102 prohibition decisions in 2012, commitment proceedings under Article 9 of Regulation 1/2003 and public statements by senior officials shed some light on its likely analytical approach and future enforcement priorities. The General Court and Court of Justice upheld prohibition decisions in several important judgments, including in AstraZeneca, which establishes a new category of abuse consisting in the exclusionary misuse of regulatory proceedings. The Courts' rulings are broadly consistent with previous case law and/or the analytical approach described in the Commission's Guidance Paper, enhancing legal certainty for stakeholders and national competition authorities.

Do PCL-R scores from state or defense experts best predict future misconduct among civilly committed sex offenders?

In a recent study of sex offender civil commitment proceedings, Murrie et al. (Psychol Public Policy Law 15:19-53, 2009) found that state-retained experts consistently assigned higher PCL-R total scores than defense-retained experts for the same offenders (Cohen's d > .83). This finding raises an important question about the validity of these discrepant scores: Which type of score, state or defense evaluator, provides the most useful information about risk? We examined the ability of PCL-R total scores from state and defense evaluators to predict future misconduct among civilly committed sex offenders (N = 38). For comparison, we also examined predictive validity when two state experts evaluated the same offender (N = 32). Agreement between evaluators was low for cases with opposing experts (ICCA,1 = .43 to .52) and for cases with two state experts (ICCA,1 = .40). Nevertheless, scores from state and defense experts demonstrated similar levels of predictive validity (AUC values in the .70 range), although scores from different types of state evaluators (corrections-contracted vs. prosecution-retained) did not. The finding of mean differences between opposing evaluator scores, but similar levels of predictive validity, suggests that scores from opposing experts in SVP cases may need to be interpreted differently depending on who assigned them. Findings have important implications for understanding how rater disagreement may relate to predictive validity.

The DSM-5’s Proposed New Categories of Sexual Disorder: The Problem of False Positives in Sexual Diagnosis

The proposals that have emerged from the DSM-5 revision process have triggered considerable controversy, especially regarding potential invalid inflation of diagnostic categories. To illustrate the kinds of issues that have emerged, I closely examine the proposed new categories of sexual disorder. The DSM-5 Sexual and Gender Identity Disorders Work Group is proposing the addition of three categories of disorder to the DSM-5—hypersexuality, hebephilia (as part of a revised pedophilia category that would become pedohebephilia), and coercive paraphilic disorder (basically a “nonconsent” or rape paraphilia). These proposals are driven by perceived clinical or forensic needs. I argue, however, that their conceptual soundness remains problematic; each could lead to large numbers of false positive diagnoses (i.e., diagnoses that mistakenly label a normal variant of behavior as a mental disorder), with potential for serious forensic abuse in “sexually violent predator” civil commitment proceedings.

Competence to proceed in SVP commitment hearings: Irrelevant or fundamental due process right?

Sexually Violent Predator (SVP) civil commitment, intended to incapacitate offenders and protect the public, has been implemented in 21 jurisdictions. While respondents in traditional civil commitment proceedings need not be competent to proceed, SVP commitment may present a greater deprivation of liberty and therefore greater procedural protections may be merited. Statutes and case law regarding competence in this context address two issues: competence to challenge unproven sexual offense allegations and competence to participate in the SVP commitment process. Of the 14 states that have addressed the issue, one concluded that respondents must be competent to challenge unproven allegations and one concluded that all SVP respondents must be competent to participate in the commitment process. Differences between SVP and traditional civil commitment, the rationale underlying the competence requirement, and decisions regarding competence in SVP commitment are reviewed to inform debate regarding whether SVP respondents must be competent to proceed with the commitment process.

On-line reselling and selective distribution networks: What can be learnt from the French experience?

Ever since the development of the Internet, the European Commission has welcomed that technology as providing opportunities for sellers and purchasers to conclude transactions above and beyond national borders within the European Union. That attitude has not always coincided with expectations of producers and distributors—particularly in situations where selective distribution systems were used. In such systems, distributors are selected, indeed, on the basis of conditions, which are often physical in nature—for instance the sort of facility used to commercialize products. The issue of Internet sales in the context of selective distribution systems is investigated by the European Commission, as the latter is currently reviewing the rules applicable to vertical restraints. In the course of that review, the Commission is confronted with cases and rules which have developed in between in France. The French competition authority is indeed probably ahead of other competition authorities in applying article 101 of the Treaty on the Functioning of the European Union (‘TFEU’), formerly article 81 of the EC Treaty, to Internet sales in the context of selective distribution networks. While the European Commission places this question at the heart of the debate in connection with the revision of the competition rules applicable to vertical agreements, the French competition authority has already issued several important decisions on this subject. The question was first of all, and on several occasions, raised in connection with commitment proceedings. Even if these proceedings, since they do not result in legal qualification but merely in the identification of ‘competition concerns’, cannot become a reference as a precedent, the far-reaching scope of the decisions remains undeniable. The question was then raised in the context of a court proceeding, in the Pierre Fabre case. Lastly, the Paris Court of Appeal has just recently referred a preliminary question to the European Court of Justice in connection with this same matter. The large number of decisions issued by the French competition authority is no doubt due to the fact that selective distribution, which is at the centre of the issue of Internet sales, is very common in France. This is, of course, due to the part that luxury goods, traditionally marketed through selective distribution networks, play in the French economy. Any challenge to selective distribution is therefore a sensitive issue. Moreover, many will remember the heated discussions and the disputes, including in courts, which arose several decades ago with the sudden emergence of large-scale distribution.

Is a Diagnostic Category for Paraphilic Coercive Disorder Defensible?

There is a proposal to establish a paraphilic coercive disorder as a new paraphilia in the DSM-V. The empirical data do not, however, support the hypothesis that a distinct syndrome exists that comprises males who are sexually aroused by the coercive elements of rape per se. Purported evidence for this syndrome has centered on the results of phallometric studies. Higher plethysmographic responses of rapists to coercive rape scenarios may, however, be better explained by the failure of coercive elements to inhibit arousal to sexual aspects of the stimuli rather than by arousal specifically to the coercive elements. In addition, sexual fantasies about forcing sex and about struggling victims are highly correlated with sadistic fantasies and have not been shown to identify a syndrome that can be discriminated from sadism. Finally, taxometric evidence strongly supports the hypothesis that the underlying components of rape are distributed as dimensions and do not constitute a separate taxon. Consequently, the criteria purported to categorize rapists into the proposed syndrome would have to be arbitrarily determined. Not only does there seem to be little empirical justification for the creation of this new syndrome, the inclusion of this disorder among the paraphilias would have serious potential for misuse. It would imply endorsement of Paraphilia, NOS, nonconsent, which is currently inappropriately employed in civil commitment proceedings to justify commitment.

Justifications and Rationalizations for the Civil Commitment of Sex Offenders

In response to rising community concern about the release of convicted child sex offenders, most states of Australia have enacted legislation to use civil commitment proceedings to extend detention and supervision after the expiry of the original sentences. This article considers the arguments for and against this form of legislation. The arguments in favour of the civil commitment of sex offenders are for further treatment so as to decrease the likelihood of child sex assaults once the offender is released, in order to prevent child sex offences during the period of extended detention, and because previous sentences are seen to be inadequate according to current community standards. We then consider the arguments against preventative detention, which include abandoning the presumption of innocence with regard to future offences and the high probability of detaining some offenders who will not reoffend because of the unreliability of risk assessment. We express our concerns about laws that overthrow longstanding legal principles and pass much of the responsibility for decisions regarding commitment from courts to psychiatrists. Despite the unsatisfactory nature of these laws and the cumbersome procedure required to administer them, the political reality is that these laws are unlikely to ever be repealed. Hence we also consider how the laws should be applied.

The Diagnostic Issue of Antisocial Personality Disorder in Civil Commitment Proceedings: A Response to DeClue

The use of Antisocial Personality Disorder (ASPD) absent any paraphilia to recommend civil commitment as a sexually violent predator is diagnostically a flawed conclusion. Without the co-morbid paraphilia existing simultaneously but independently there can be no diagnostic conclusion regarding sexual deviancy, preferences, or risk. Without such diagnostic conclusions ASPD cannot be used to infer, predict, assess, or correlate with any future sexual behavior, legal or illegal. This article will use DeClue's recent publication as a starting point for exploring this topic as it adequately presents all of the arguments for the use of ASPD in isolation as a basis for civil commitment recommendations of sexually violent predators.