Involuntary Civil Commitment: Fourteenth Amendment Due Process Protections

May 24, 2023 R47571

Involuntary Civil Commitment: Fourteenth
May 24, 2023
Amendment Due Process Protections
Hannah-Alise Rogers
Involuntary civil commitment refers to the forced hospitalization of persons with serious mental
Legislative Attorney
illness (SMI). While this process is generally governed by state law, it also implicates

constitutional concerns and constraints under the Fourteenth Amendment Due Process Clause of
the U.S. Constitution, specifically with regard to the liberty interests of the confined patients.

The law concerning involuntary commitment for persons with SMI has evolved over time. Certain federal statutes address
civil commitment, such as laws concerning federal prisoners with SMI and requirements for certain health care facilities that
treat patients with SMI. In addition, the District of Columbia Hospitalization of the Mentally Ill Act governs inpatient
hospitalization in the District.
The Fourteenth Amendment’s Due Process Clause is interpreted by courts to provide both procedural and substantive due
process protections for persons who are subject to involuntary civil commitment. Courts have recognized and applied due
process rights when such persons face deprivations of liberty and property due to their mental health status, particularly in the
context of involuntary hospitalization.
As to procedural due process rights for the civilly committed, there are well-established, constitutionally protected rights of
notice of the confinement and a hearing. The Supreme Court has also established a minimum burden of proof for purposes of
involuntary civil commitment, although some states have higher standards. Whether and to what extent an indigent person
facing civil commitment has a right to counsel, a right to an independent expert to testify on his or her behalf, or a right to a
jury trial are all unsettled areas of law. While many states protect these rights, the Supreme Court has never ruled that the
Fourteenth Amendment guarantees any of these protections.
With respect to substantive due process protections, there are two types of constitutionally protected substantive due process
rights that have been recognized for persons subject to involuntary hospitalization. The first is the liberty interest of all
persons to be free from confinement; the second is related to the rights of confined persons to safe conditions. Other
substantive due process rights of individuals with SMI include requisite standards of dangerousness before a state may
involuntarily commit a person, as well as a committed person’s rights to safe conditions, freedom of movement, and basic
training. Legal issues related to a committed individual’s right to receive or to refuse medical treatment during confinement
also appear throughout the relevant case law.

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Involuntary Civil Commitment: Fourteenth Amendment Due Process Protections

Introduction
Involuntary civil commitment, or the forced hospitalization of persons with serious mental illness
(SMI),1 is a type of mental health treatment that presents tension between an individual’s liberty
interests and the state’s interests in protecting citizens from danger. According to the Substance
Abuse and Mental Health Services Administration (SAMHSA),2 a division of the U.S.
Department of Health and Human Services (HHS), civil commitment is a legal intervention
wherein a judge or jury may order a person with a mental illness who meets certain criteria to be
confined to a psychiatric hospital, or to receive supervised outpatient treatment.3
While civil commitment is generally a matter of state law,4 federal constitutional concerns and
constraints can arise, especially with regard to the confined patient’s liberty interests. These
constitutional constraints limit state civil commitment laws in at least three ways. First,
constitutional constraints affect how states may initially detain an individual suspected of
experiencing SMI and transport that individual to a treatment facility.5 Second, constitutional
constraints affect how states may seek to commit such individuals to mental health facilities on a
longer-term basis.6 Third, they affect how states must treat civilly confined individuals and
protect their rights during confinement.7 Over the last 50 years, the U.S. Supreme Court has
addressed these three areas in various civil commitment cases.
In recent years, involuntary civil commitment has garnered attention from stakeholders, as many
states grapple with the use of involuntary civil commitment for vulnerable populations, including
children and unhoused individuals.8 With respect to the latter, changes in mental hygiene laws in
states with large populations of unhoused persons, including New York, California, and Hawaii,
have sparked debates about the rights of unhoused individuals with SMI and the most effective
ways to assist them.9 For example, in November 2022, New York City announced a new policy

1 SAMHSA defines adults with SMI as “persons age 18 and over, who currently or at any time during the past year,
have had a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet diagnostic criteria . . .
that has resulted in functional impairment which substantially interferes with or limits one or more major life
activities.” 58 Fed. Reg. 29422 (May 20, 1993).
2 For more information on SAMHSA, see CRS Report R46426, Substance Abuse and Mental Health Services
Administration (SAMHSA): Overview of the Agency and Major Programs, by Johnathan H. Duff.
3 SUBSTANCE ABUSE & MENTAL HEALTH ADMIN., OFF. OF THE CHIEF MEDICAL OFFICER, CIVIL COMMITMENT AND THE
MENTAL HEALTH CARE CONTINUUM; HISTORICAL TRENDS AND PRINCIPLES FOR LAW AND PRACTICE 1 (2019) [hereinafter
CIVIL COMMITMENT REPORT], https://www.samhsa.gov/sites/default/files/civil-commitment-continuum-of-care.pdf.
As explained in a recent report from the Treatment and Advocacy Center, there are different types of involuntary
treatment for the mentally ill, including emergency psychiatric evaluation, inpatient civil commitment, and assisted
outpatient treatment. States have different laws and procedures for each of the three types of treatment. For more
information, see TREATMENT ADVOC. CTR., GRADING THE STATES: AN ANALYSIS OF U.S. PSYCHIATRIC TREATMENT
LAWS (2020), https://www.treatmentadvocacycenter.org/storage/documents/grading-the-states.pdf. For purposes of this
report, “involuntary civil commitment” generally refers to long term, in-patient commitment, unless otherwise stated.
4 CIVIL COMMITMENT REPORT, supra note 3, at 1.
5 See, e.g., Ex parte Bashinsky, 319 So. 3d 1240 (Ala. 2020).
6 See, e.g., O’Connor v. Donaldson, 422 U.S. 563 (1975); Vitek v. Jones, 445 U.S. 480 (1980).
7 See, e.g., Mills v. Rogers, 457 U.S. 291 (1982), Youngberg v. Romeo, 457 U.S. 307 (1982).
8 See, e.g., Donna St. George, In Florida, Showing Mental Health Struggles Could Get a Child Detained, WASH. POST.,
Mar. 16, 2023, https://www.washingtonpost.com/education/2023/03/16/florida-law-child-mental-health/?utm_
campaign=ext_rweb&utm_medium=referral&utm_source=extension.
9 See Teresa Wiltz, ‘Gravely Disabled’ Homeless Forced into Mental Health Care in More States, PEW TRUSTS, Sept.
11, 2019, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/09/11/gravely-disabled-homeless-
forced-into-mental-health-care-in-more-states; Brittany Lyte, Homeless Advocates Test Hawaii’s New Forced-
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under Section 9.39 of its Mental Hygiene Law10 that allows state authorities, including
firefighters and police officers, to involuntarily commit unhoused individuals who are suspected
of being a harm to themselves. The policy sparked controversy from stakeholder and advocacy
groups over concerns that it could deprive unhoused persons of their liberty and further deter
individuals with SMI from seeking mental health treatment.11
This report addresses how the Constitution’s Due Process Clause of the Fourteenth Amendment
protects the interests of persons with SMI who are subject to involuntary civil commitment.
Where relevant, this report references other constitutional provisions implicated by involuntary
civil commitment, such as the Seventh Amendment right to jury trial.12 First, the report considers
the history of involuntary commitment for persons with mental illness and discusses how the law
has evolved around this issue over time. Next, the report highlights select federal laws and
regulations related to civil commitment. Third, the report covers both procedural and substantive
due process protections under the Fourteenth Amendment’s Due Process Clause for persons who
are subject to involuntary civil commitment.13
While the report does not cover every possible procedural due process protection available to
persons with SMI, it discusses the procedural protections of notice, hearing, burden of proof, right
to counsel, right to an expert witness, and the right to a jury trial. With respect to substantive due
process protections, it addresses the requisite standard of dangerousness that a state must prove to
involuntarily commit a person, as well as the committed patient’s rights to safe conditions,
freedom of movement, and basic training. The report concludes with a discussion of the rights of
civilly committed patients both to receive and reject medical treatment during their confinement.

Treatment Law, HONOLULU CIVIL BEAT, Sept. 4, 2019, https://www.civilbeat.org/2019/09/homeless-advocates-test-
hawaiis-new-forced-treatment-law/.
10 N.Y. MENT. HYG. LAW § 9.39 (2022) (governing emergency involuntary hospitalization admissions of mentally ill
patients for observation, examination, care, and treatment).
11 NYCLU on Mayor Adams’ Expansion of Forcible Detentions and Hospitalizations for Mental Illness, NYCLU, Nov.
29, 2022, https://www.nyclu.org/en/press-releases/nyclu-mayor-adamss-expansion-forcible-detentions-and-
hospitalizations-mental-illness; Talal Ansari, New York City Plan to Involuntarily Hospitalize Some Mentally Ill
Homeless Faces Legal Challenge, Wall Street Journal, (Dec. 8, 2022), https://www.wsj.com/articles/new-york-city-
plan-to-involuntarily-hospitalize-some-mentally-ill-homeless-faces-legal-challenge.
12 This report focuses on the constitutional protections stemming from the Fourteenth Amendment for involuntarily
committed patients with SMI. Involuntary civil commitment and the processes leading up to it (e.g., detention by an
officer) potentially implicate other constitutional protections. For example, the Second Circuit has suggested that the
Fourth Amendment’s prohibition on unreasonable searches and seizures was implicated when officers arrested a
suspected individual with SMI pursuant to the New York Mental Hygiene law. See Kerman v. City of New York, 261
F.3d 229, 237 (2d Cir. 2001).
13 This report focuses on Fourteenth Amendment protections for individuals with SMI who face any type of involuntary
civil commitment; no distinction is drawn between an initial civil commitment and a long-term civil commitment.
Moreover, the differences in state laws, which reflect varying ways of committing individuals, concerning these two
types of civil commitment are generally omitted. Differences in the law include whether the proposed commitment is
an emergency commitment or long-term commitment, who is authorized to initiate the commitment proceedings, how
the need must be demonstrated, when the proposed patient can request a hearing, and what the standard is for the
commitment itself. As an example, compare ARIZ. REV. STAT. § 36-520A (stating that “any responsible individual may
apply for a court-ordered evaluation of a person . . . alleged to be, as a result of a mental disorder, a danger to self or to
others”), with CONN. GEN. STAT. § 17a-498, which does not specify who can file a commitment application.
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History of U.S. Laws Regarding Involuntary Civil
Commitment
English laws concerning mental illness began as early as the 13th century, and in the United
States, formalized care in mental hospitals appeared in the late 18th and early 19th centuries.14
There are two generally accepted legal bases under which a state may justify involuntary
confinement of persons with SMI: parens patriae and state police power.15 Under the parens
patriae theory, the state is obligated to care for citizens who are unable to care for themselves;
this theory assumes that such persons are unable to make informed decisions about their need for
treatment, justifying state intervention.16 The parens patriae power was primarily used to justify
civil confinement until the mid-1970s, after which police power became more commonly used.17
Under the police power theory, the state has a responsibility to maintain public order and safety
and thus may confine people on the basis that they pose a threat to themselves or others.18
Until reforms began in the mid-1800s, Americans could be involuntarily confined to mental
hospitals under questionable circumstances, and these hospitalizations were not necessarily for
the benefit of the person suffering from mental illness. For example, in 1860, Ms. Elizabeth
Parsons Ware Packard was committed to a state mental hospital under an Illinois law that allowed
married women to be civilly committed at the behest of their husbands, without actual evidence
of a mental health issue.19 After her release, Ms. Packard led a reform movement to create judicial
procedures that would prevent wrongful involuntary hospitalization, successfully changing state
laws in Illinois, Iowa, Maine, and Massachusetts.20 Ms. Packard also fought for patient’s rights,
including the right to untampered mail and better living conditions.21 During this time, many
states developed “semi-formal” procedures for the emergency detention and observation of
patients with SMI, generally at the request of a family member, doctor, or the police.22
The late 1960s saw the beginnings of the “Patient Rights Movement,” which brought changes in
admission procedures and generally aimed to prevent unnecessary, rather than simply unjust,
involuntary civil commitments.23 The movement came about as the result of both lawyers and
mental health clinicians calling attention to problematic aspects of involuntary confinement,
including overcrowded hospitals, patient neglect and mistreatment, lack of available treatment in
both inpatient and community-based settings, and unnecessary commitments.24

14 CIVIL COMMITMENT REPORT, supra note 3, at 2. For a brief history of institutional care in the United States, see CRS
In Focus IF10870, Psychiatric Institutionalization and Deinstitutionalization, by Johnathan H. Duff.
15 Karl Menninger, Wrongful Confinement to a Mental Health or Developmental Disabilities Facility, 44 AM. JUR.
PROOF OF FACTS 3d 217, 230 (1997).
16 Id.
17 Id.
18 Id.
19 Id. at 225. For more information about Elizabeth Packard and the specific reforms that she championed, see Mariana
Brandman, Elizabeth Packard, National Women’s History Museum, https://www.womenshistory.org/education-
resources/biographies/elizabeth-packard (last accessed Feb. 27, 2023).
20 Menninger, supra note 15, at 225.
21 Brandman, supra note 19.
22 Menninger, supra note 15, at 225.
23 Id. For more comprehensive information on civil commitment reforms, see PAUL APPELBAUM, ALMOST A
REVOLUTION: MENTAL HEALTH LAW AND THE LIMITS OF CHANGE (1994).
24 Menninger, supra note 15, at 225. The lack of community-based (i.e., non-inpatient) facilities offering mental health
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In 1975, the U.S. Supreme Court recognized the constitutionally protected liberty interests of the
involuntarily hospitalized, barring states from committing mentally ill patients who were not a
danger to themselves or others.25 Under the changing legal landscape during this time, many
states shifted from a parens patriae justification for civil confinement to a police power view,
which more closely aligns with the idea that dangerous persons with SMI can appropriately be
involuntarily confined.26 A few years later, in 1979, the Court established that the threshold
burden of proof for civil commitment hearings was more than a mere civil preponderance
standard, holding that the state must demonstrate its case for involuntary hospitalization with
clear and convincing evidence.27 During this time, actions from both Congress28 and the Supreme
Court led to many states updating and revising their civil commitment laws.29
Select Federal Laws Related to Involuntary Civil
Commitment
Standards under which individuals can be civilly committed are not widely defined by federal law
or regulation and have generally been left to states, with each state having different procedures
and processes.30 There are some federal statutes that address involuntary commitment, a sampling
of which are discussed in this section, including laws governing federal prisoners and patients’
rights, and the D.C. Code.31
Many of the federal statutes that directly address civil commitment focus on commitment
proceedings for federal prisoners.32 In the 1980s, Congress began discussing prison reform, and

treatment was also an issue being discussed in the 1960s. See, e.g., Lake v. Cameron, 267 F.Supp. 155 (Dist. Ct. D.C.
1967), wherein the D.C. District Court addressed the necessity of civil confinement in Saint Elizabeths Hospital for an
unhoused patient. When assessing whether there were alternatives to inpatient care, the court noted that the patient
required constant supervision for her safety. The court found that the hospital was the only facility that could provide
the patient with the type of care she required, because there were insufficient public funds to place her in a nursing
home, and no other community-based facilities were available. Id. at 158.
25 O’Connor v. Donaldson, 422 U.S. 563 (1975).
26 Menninger, supra note 15, at 230.
27 Addington v. Texas, 441 U.S. 418 (1979).
28 See discussion of the District of Columbia Hospitalization of the Mentally Ill Act, infra “Select Federal Laws Related
to Involuntary Civil Commitment.”
29 Megan Testa & Sara West, Civil Commitment in the United States, 7 PSYCHIATRY 30, 33 (2010).
30 See also supra “History of U.S. Laws Regarding Involuntary Civil Commitment.”
31 The D.C. Code is included in this section, because Congress, in conjunction with the D.C. Council, controls D.C.
law. Congress’s control of D.C. stems from the U.S. Constitution, which grants Congress the power to “exercise
exclusive legislation” over a federal district, not to exceed 10 square miles, to “become the Seat of the Government in
the United States.” U.S. CONST., art. I, § 8, cl. 17. While civil commitment also arises in the context of agency
regulations governing federal health care programs, the focus of this section is limited to federal statutes. It should be
noted that other federal laws address the circumstances under which certain costs related to civil commitment may be
covered by federal health programs. The Social Security Act, which authorizes the Medicare and Medicaid programs,
excludes inpatient mental health care for patients under age 65 (commonly referred to as the “institutions for mental
disease” or “IMD” exclusion).31 42 U.S.C. § 1396d(a)(B). See also CRS In Focus IF10222, Medicaid’s Institutions for
Mental Disease (IMD) Exclusion, by Alison Mitchell. States currently have a few options when seeking to use
Medicaid funds to cover IMD services, including Section 1115 waivers. For more information about Section 1115
waivers and how they are used in the Medicaid IMD context, see MaryBeth Musumeci et al., State Options for
Medicaid Coverage of Inpatient Behavioral Health Services, KAISER FAMILY FOUND., Nov. 9, 2019,
https://www.kff.org/medicaid/report/state-options-for-medicaid-coverage-of-inpatient-behavioral-health-services/.
32 In addition to those mentioned here, other federal statutes concern civil commitment of prisoners. See, e.g., 34 U.S.C.
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as part of the FY1985 appropriations bill, Congress passed the Insanity Defense Reform Act of
1984 to provide the affirmative defense of insanity in federal criminal proceedings.33 The Act was
codified in 18 U.S.C §§ 4241–4247 and outlines requirements related to the treatment of federal
prisoners with SMI.34 Other places in the criminal code also prohibit persons who have “been
adjudicated as mental[ly] defective or who [have] been committed to a mental institution” from
possessing firearms.35
Federal law also addresses standards and other requirements related to the civil commitment in
regulations governing certain health care and other community-based settings. In 2000, Congress
passed the Children’s Health Act (CHA), which broadly limits the use of restraints and seclusion
in hospitals, nursing facilities, and other health care and non-health care settings for individuals
with SMI.36 The CHA authorized SAMHSA to create and enforce federal protections for
individuals subject to civil commitment, including ensuring that civilly committed patients are
free from harsh conditions, physical and chemical restraints, abuse, seclusion, and other
punishments.37 The CHA further authorized SAMHSA to create and enforce similar protections
for children and youth who are held in community-based, nonmedical facilities.38 Other
provisions of the CHA required SAMHSA to promulgate regulations to ensure that inpatient
health care facilities39 as well as community-based settings offering services for children with
SMI40 that receive federal funding follow data-reporting requirements and have treating staff who
are appropriately trained in the use of restraints, both physical and chemical. The CHA states that
facilities that do not follow these requirements will be ineligible to receive federal funding.41

§ 20971 (authorizing the Attorney General to make grants to states to support civil commitment programs for sexually
dangerous persons); 18 U.S.C. § 4248 (outlining procedures for the civil commitment of a sexually devious prisoner).
Additionally, Title 20 prohibits a Federal Pell Grant from being awarded to anyone subject to an involuntary civil
commitment upon the completion of incarceration for a sexual offense. 20 U.S.C. § 1070a(b)(6).
33 Joint Resolution making Continuing Appropriations for the Fiscal Year 1985, ch. IV, Pub. L. No. 98-473, 98 Stat.
1837, 2057 (1984) (codified as amended at 18 U.S.C. § 4241). Around the time of the Supreme Court’s decision in
Vitek v. Jones, which is discussed infra and deals with a prisoner who was subject to an involuntary transfer to a mental
health facility, Congress began discussing prison reform. See infra “Right to Counsel.”
34 See generally 42 U.S.C. §§ 4243–4246. Notably, § 4243 discusses the involuntary hospitalization of persons found
not guilty by reason of insanity, and § 4244 and § 4245 discuss the conditions under which prisoners can be subject to
involuntary civil commitment. Section 4245 gives federal inmates who are subject to involuntary civil confinement the
right to a hearing on their present mental condition and allows the court to order psychiatric and psychological
examinations of prisoners. Section 4246 outlines the process to which a prisoner due for release is entitled prior to
being subject to involuntary hospitalization upon release.
35 18 U.S.C. § 922(g)(4).
36 Children’s Health Act of 2000, Pub. L. No. 106-310; 114 Stat. 1101 (codified at 42 U.S.C. § 290ii). In addition to
this discussion of the Children’s Health Act of 2000, see also Protection and Advocacy for Individuals with Mental
Illness Act of 1986, Pub. L. No. 99-319, 100 Stat. 478 (codified at 42 U.S.C. §§ 10801–10851).
37 See generally 42 U.S.C. § 290ii (requirements for residents of inpatient facilities).
38 See generally id. § 290jj (requirements for nonresidential, community-based facilities for children and youth).
39 Id. §§ 290ii-1, -2(a)–(b).
40 Id. §§ 290jj-1, -2(a)–(b). SAMHSA refers to children with SMI as children with “serious emotional disturbance”
(SED). See 58 F.R. 29422 (May 20, 1993).
41 Id. §§ 290ii-2(c), 290jj-2(c). See also 42 C.F.R. §§ 483.350–483.376, 66 Fed. Reg. 7161 (2001). HHS creates
Conditions of Participation (often called CoPs) that health care providers must meet to receive funding from federal
health programs like Medicare and Medicaid. For more information about CoPs, see Conditions for Coverage &
Conditions of Participation, CTRS. FOR MEDICARE & MEDICAID SERVS., Dec. 1, 2021, https://www.cms.gov/
Regulations-and-Guidance/Legislation/CFCsAndCoPs.
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Congress also chose to directly regulate involuntary hospitalizations in D.C. through the District
of Columbia Hospitalization of the Mentally Ill Act,42 also known as the Ervin Act. In the context
of involuntary confinement, the law requires proof of a mental illness as well as a showing that
the proposed patient was at risk of harm to self or others, and it gave confined patients the rights
to “medical and psychiatric care and treatment.”43 After its passage, the Ervin Act served as a
model for other states to reform their civil commitment laws.44 A statement by Senator Samuel J.
Ervin, one of the primary drafters and proponents of the bill, suggested that he intended for the
bill to resolve “a problem of serious national scope.”45 He stated: “Our concern has been to assure
that when an individual is deprived of his liberty because he is mentally ill, he will receive
appropriate attention and the treatment necessary to restore him to his place in society.”46 D.C.
courts subsequently interpreting the bill and its provisions recognized the legislation’s overall
purpose as furthering civil and constitutionally protected rights to persons subject to involuntary
confinement.47
The Fourteenth Amendment’s Due Process Clause:
Protections for People with Serious Mental Illness
The Fourteenth Amendment’s Due Process Clause48 provides certain protections against laws that
restrict an individual’s life, liberty, or property.49 While states can legislate as to the circumstances
under which an individual with SMI may be deprived of life, liberty, or property, Due Process
concerns often arise in these contexts, as patients’ liberty is at stake when they are forcibly
hospitalized. The deprivation of rights for patients with SMI can generally occur in a variety of
ways, including involuntary civil commitment, forced outpatient mental health treatment, and in
judicial proceedings challenging competency.50
The Fourteenth Amendment has been interpreted to extend to both procedural and substantive due
process protections to individuals with SMI in a variety of ways, including how states may

42 Congress later passed the District of Columbia Home Rule Act of 1973, which created the D.C. Council and gave
D.C. residents more control over local government affairs. Prior to the passage of the Home Rule Act, Congress
directly legislated for D.C. and enacted statutes, such as the Hospitalization of the Mentally Ill Act, which governed
local affairs. For more information about the Home Rule Act and the D.C. government, see D.C. Home Rule, COUNCIL
OF THE DIST. OF COLUMBIA, https://dccouncil.gov/dc-home-rule/ (last accessed Mar. 20, 2023).
43 Hospitalization of the Mentally Ill Act, Pub. L. No. 88-597, 78 Stat. 944 (1964) (codified as amended in scattered
sections of D.C. CODE §§ 21-, 32-).
44 John L. Bohman, Procedural Safeguards for the Involuntary Commitment of the Mentally Ill in the District of
Columbia, 28 CATH. U. L. REV. 855, 859 (1979).
45 110 CONG. REC. 21346 (1964).
46 Id.
47 See, e.g., In re Ballay, 482 F.2d 648, 660 (D.C. Cir. 1973).
48 For more information on the Fourteenth Amendment’s Due Process Clause, see Cong. Rsch. Serv., Overview of Due
Process in Civil Cases, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt14-S1-5-4-
1/ALDE_00013750/ (last accessed Mar. 7, 2023).
49 Cong. Rsch. Serv., Liberty Deprivations and Due Process, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt14-S1-5-1/ALDE_00013747/ (last accessed Mar. 3, 2023).
50 A patient who is involuntarily civilly committed is not necessarily deemed to be incompetent and in need of a
guardian. The reforms of inpatient hospitalization in the 1960s emphasized patient autonomy in consenting to medical
treatment, and some states require a judicial declaration of incompetence and the appointment of a guardian prior to
forced treatment. A few states, such as Alabama, require incompetency for civil commitment, meaning persons who are
able to make informed medical choices do not qualify for civil commitment. For more information, see CIVIL
COMMITMENT REPORT, supra note 3, at 15.
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initially detain a person suspected of experiencing SMI; how such a person may be civilly
committed; and how the state must treat committed patients and patient rights during
confinement.
The Due Process Clause provides that no state may “deprive any person of life, liberty, or
property, without due process of law.”51 The concept of due process prevents states from making
laws that unfairly deprive citizens of life, liberty, or property, and it allows a person to contest the
basis upon which the state is seeking to curtail individual rights.52 As the Supreme Court has
explained: “Procedural due process rules are meant to protect persons not from the deprivation,
but from the mistaken or unjustified deprivation of life, liberty, or property.”53
When questions concerning the specific procedures needed to satisfy due process arise, the
answer depends on the underlying facts and circumstances of each case. The Supreme Court
prescribed a three-factor balancing test in Mathews v. Eldridge to evaluate the sufficiency of the
government’s procedures for purposes of compliance with due process in the context of civil
cases.54 The first factor looks at the private interest affected by the government’s proposed action;
the second weighs the likelihood that a deprivation of life, liberty, or property will occur if the
government’s procedure is used and the probable value of additional procedural safeguards.55 The
third factor evaluates the government’s interest, including any fiscal or administrative burden in
providing additional procedural safeguards.56 Courts have applied these factors in a wide range of
civil cases to balance the interests of the government against those of individuals. The Mathews v.
Eldridge factors have also been used to evaluate the sufficiency of procedural due process
protections in the context of individuals with SMI who are challenging an involuntary civil
confinement.57
Procedural Due Process Requirements for Civil Commitment
This section discusses the procedural due process rights of individuals with SMI and how courts
have applied those rights when such persons face deprivations of liberty and property due to their
mental health status, mainly in the context of involuntary hospitalization. The discussion first
covers the well-established constitutional rights of notice of confinement and a hearing,
highlighting how courts have recognized the right to these procedural protections for persons
subject to involuntary commitment as well as incompetency proceedings. The state’s requisite
burden of proof for purposes of involuntary civil commitment is covered next, followed by a
discussion of when and to what extent an indigent person facing civil commitment has a right to
counsel and an independent expert to testify on his or her behalf. Finally, the section concludes
with a discussion of whether the Due Process Clause affords an individual subject to involuntary
confinement the right to a jury trial.
Notice and Hearing
The hallmark protections afforded by the Due Process Clause are (1) an individual’s right to
notice of any action on the government’s part to restrict his or her right to life, liberty, or property,

51 U.S. CONST. amend. XIV, § 1.
52 Fuentes v. Shevin, 407 U.S. 67, 81 (1972).
53 Carey v. Piphus, 435 U.S. 247, 259 (1978).
54 424 U.S. 319, 335 (1976).
55 Id.
56 Id.
57 See, e.g., Addington v. Texas, 441 U.S. 418 (1979).
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and (2) the right to a hearing. The Supreme Court has explained that notice is “[a]n elementary
and fundamental requirement of due process in any proceeding which is to be accorded finality,”
and that notice must be “reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of action and afford them an opportunity to present their objections.”58
Much of how notice and hearing requirements are generally understood today was elaborated by
the Supreme Court in the 1960s and 1970s. The Court has recognized that in order to comport
with the Due Process Clause’s requirements, notice must be structured in such a way that the
person to whom it is directed receives it,59 and it must clearly identify to the recipient what action
is being proposed and what he or she may do to prevent it.60
In the context of involuntary confinement and incompetency proceedings, the Supreme Court first
recognized the importance of notice and hearing requirements, as well as their limitations, in the
1901 case Simon v. Craft, where the Court found that due process required only actual notice.61
The case concerned a “lunacy petition” for Ms. Simon, a widow.62 Although a sheriff served a
notice to Ms. Simon alerting her of the petition, her physician determined that her presence in the
courtroom would be detrimental to her health, and she did not appear in court.63 A jury found Ms.
Simon of unsound mind, and the probate court appointed a guardian, who later sold her home.64
Ms. Simon later challenged this action, arguing that the probate court’s proceedings deprived her
of liberty and property without due process of law.65 The Court recognized the principle that
“[t]he essential elements of due process of law are notice and opportunity to defend.”66 The Court
held, however, that due process was satisfied because Ms. Simon was served with actual notice
and “if she had chosen to do so, she was at liberty to make such defense as she deemed
advisable.”67
In 1980, the Supreme Court again took up the issue of the Due Process Clause’s requirements of
notice and hearing for persons facing involuntary civil commitment, applying those protections
not only to situations involving ordinary citizens but also to prisoners.68 In Vitek v. Jones, the
Court confronted the question of whether the Fourteenth Amendment’s Due Process Clause
afforded any protection to a prisoner with SMI before he was involuntarily transferred to a mental
hospital without his notice or consent.69 The petitioner challenged the constitutionality of the
transfer, arguing the prison violated his due process rights by declining to afford him notice and a
hearing prior to his civil commitment.70 The Court agreed with the prisoner that the state statute

58 Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
59 Armstrong v. Manzo, 380 U.S. 545, 550 (1965).
60 Goldberg v. Kelly, 397 U.S. 254, 267 (1970), superseded by statute, Personal Responsibility and Work Opportunity
Reconciliation Act, 42 U.S.C. § 601 (1996), as recognized in Hudson v. Bowling, 752 S.E.2d 313 (W. Va. 2013).
61 182 U.S. 427 (1901). This case does not discuss involuntary confinement specifically, but rather concerns the due
process requirements of adequate notice and hearing in the context of “lunacy petitions,” which could sometimes lead
to involuntary civil commitment. As was the case with Ms. Simon, when a court found a person to be of “unsound
mind,” state law allowed the appointment of a guardian over the subject and his/her personal property.
62 Id.
63 Id. at 429.
64 Id. at 430.
65 Id. at 437.
66 Id. at 434.
67 Id. at 436.
68 Vitek v. Jones, 445 U.S. 480 (1980).
69 Id. at 480. Under a state statute, prisoners who suffered from mental diseases for which they could not be treated
while incarcerated could be transferred to a state mental hospital for treatment.
70 Id. at 487.
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created a liberty interest that entitled him to due process protections, and that even though the
prisoner was already confined in prison, he was still “entitled to the benefit of procedures
appropriate in the circumstances before he is found to have a mental disease and transferred to a
mental hospital.”71
The Vitek Court observed that because a liberty interest existed under the Due Process Clause, the
state was required to provide the inmate with “effective and timely” written notice of his transfer,
as well as afford him an opportunity for an adversarial hearing, where the state could present its
evidence in favor of civil commitment and the prisoner could cross-examine the state’s witnesses
and call witnesses of his own.72 The Court reasoned that the notice requirement was “essential to
afford the prisoner an opportunity to challenge the contemplated action and to understanding the
nature of what is happening to him.”73
In the years following the Court’s decision in Vitek, Congress also considered the procedural
rights of involuntarily hospitalized federal inmates as part of a greater conversation about prison
reform.74 A 1983 Senate Judiciary Committee report about the Comprehensive Crime Control Act
discusses the need for reform after the Court’s holding in Vitek, clarifying that federal inmates
were entitled to court hearings before being transferred to mental hospitals.75 The Committee
notes that the protective procedures outlined in what would eventually become 18 U.S.C. § 4245
were created “to insure that Federal prisoners continue to receive fair and just treatment.”76 In
expressing its approval for such a measure, the Committee noted that involuntary hospitalization
of federal inmates required more than mere administrative process and that judicial proceedings
would better safeguard a prisoner’s rights in a situation in which the prisoner did not wish to be
transferred.77
Since Vitek was decided, other federal courts have elaborated on the sufficiency of the notice
requirement in the context of civil commitment cases for ordinary citizens with SMI who are not
federal prisoners. For example, in Clark v. Cohen, the Third Circuit held that the resident of a
mental hospital was deprived of her liberty without due process when she was never given a
hearing to challenge her commitment and was not released into a community living arrangement,
as recommended by her health providers.78 The court observed the petitioner had protested her
detention for more than 28 years but was never given a hearing, despite her many requests for

71 Id. at 488, 493. The state attempted to argue that the transfer of a prisoner to a mental hospital was within the scope
of his prison sentence, but the Court disagreed. The Court stated: “None of our decisions hold[] that conviction for a
crime entitles a State note only to confine the convicted person but also to determine that he has a mental illness and to
subject him involuntarily to institutional care in a mental hospital. Such consequences accessed on the prisoner are
qualitatively different from the punishment characteristically suffered by a person convicted of a crime.” Id. at 493. The
Court also observed that if the case had involved an “ordinary citizen,” rather than a convicted felon serving a prison
sentence, “it is undeniable that protected liberty interests would be unconstitutionally infringed absent compliance with
the procedures required by the Due Process Clause.” Id. at 492.
72 Id. at 495. The district court also found that due process entitled a prisoner facing an involuntary civil commitment to
legal representation, but the Supreme Court’s holding did not extend this far. Id. at 496. Further discussion of the right
to counsel in civil commitment hearings is provided, infra “Right to Counsel.”
73 Vitek, 445 U.S. at 496 (citing Wolff v. McDonnell, 418 U.S. 539 (1974)).
74 See generally JOHN CONYERS, JR., INSANITY DEFENSE AND RELATED CRIMINAL PROCEDURE MATTERS (TO ACCOMPANY
H.R. 3336), H.R. REP. NO. 98-577; COMM. ON THE JUDICIARY, COMPREHENSIVE CRIME CONTROL ACT OF 1983, S. REP.
NO. 98-225 (1983).
75 COMM. ON THE JUDICIARY, COMPREHENSIVE CRIME CONTROL ACT OF 1983, S. REP. NO. 98-225 at 40 (1983).
76 Id.
77 Id.
78 Clark v. Cohen, 794 F.2d 79 (3d Cir. 1986).
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one.79 Moreover, the state never reviewed her case, even after the commitment law under which
she was originally confined was found to be unconstitutionally vague.80 The court held that the
petitioner was entitled to periodic review of her commitment and that her due process rights had
been violated because for “more than twenty-eight years she was never afforded a hearing before
any decisionmaker with authority to resolve her dispute with those who were confining her.”81
Burden of Proof
In addition to the due process protections of notice and hearing, the Supreme Court has found that
the Fourteenth Amendment also requires the state to show a higher burden of proof prior to the
long-term civil commitment of a patient with SMI.82 Generally, the greater the individual liberty
that is being challenged in court, the higher the burden of proof. In most civil litigation, a litigant
must prove his or her case by preponderant evidence, meaning that he or she must prove a fact is
more likely than not true. In criminal cases, the state must present evidence proving the
defendant’s guilt beyond a reasonable doubt.83
In general, state legislatures have the authority to determine the applicable burden of proof in
civil litigation.84 However, the Supreme Court found in Addington v. Texas that to meet due
process demands in a proceeding for involuntary civil commitment, the state must prove its case
for commitment by clear and convincing evidence.85 The Court reasoned: “The function of a
standard of proof, as that concept is embodied in the Due Process Clause and the realm of fact-
finding, is to instruct the factfinder concerning the degree of confidence our society thinks he
should have in the correctness of factual conclusions for a particular type of adjudication.”86 In
other words, a higher burden of proof is warranted for civil commitment proceedings to ensure
that the confinement is justified.
At the time Addington was decided, Texas was the only state in which a court had found that a
preponderance of the evidence standard was sufficient to meet constitutional due process
obligations.87 Twenty other states already used a “clear and convincing evidence” standard, two
used a “clear, cogent, and convincing evidence” standard, and two required “clear, unequivocal
and convincing evidence.”88 The Court found that “unequivocal” evidence is not constitutionally
required prior to a civil commitment, but that a state could require it if it so desired.89
In its reasoning for a heightened standard for involuntary civil commitment, the Court cited its
prior holding in Mathews v. Eldridge, noting the state’s interest in treating individuals with SMI,
the individual’s liberty interest, and the need to minimize unnecessary confinement.90 The Court
assessed the preponderance standard, finding that because it “creates the risk of increasing the
number of individuals erroneously committed,” the state’s interests would not necessarily be

79 Id.
80 Id. (citing Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa. 1976)).
81 Id. at 86 (emphasis in original).
82 Addington v. Texas, 441 U.S. 418 (1979).
83 For a discussion of the various burdens of proof used in civil and criminal litigation, see id. at 423–24.
84 See Hawkins v. Bleakly, 243 U.S. 210, 214 (1917).
85 Addington, 441 U.S. at 418.
86 Id. at 423.
87 Id. at 426.
88 Id. at 431–32.
89 Id. at 432.
90 Id. at 425.
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furthered through its use in commitment proceedings.91 Distinguishing involuntary civil
commitment from prison, the Court disagreed with petitioner’s assertion that evidence beyond a
reasonable doubt was required for civil commitment.92 The Court noted that the many layers of
review of a patient’s condition, as well as the care of friends and family, “provide continuous
opportunities for an erroneous commitment to be corrected.”93 Moreover, the Court was
concerned that, given the evolving understanding of mental illness, the state would be unable to
ever prove a patient mentally ill beyond a reasonable doubt.94
Right to Counsel
The Supreme Court has never directly addressed whether the Due Process Clause guarantees a
noncriminal, civilly committed patient the right to counsel when challenging an involuntary civil
commitment, but the Court has elaborated in other types of civil cases the circumstances under
which the Due Process Clause guarantees a right to counsel. While representation by counsel is
not an absolute right in all civil proceedings,95 the Supreme Court established a presumption that
the Due Process Clause gives an indigent litigant the right to appointed counsel when his or her
physical liberty is being threatened.96 However, in Turner v. Rogers, the Court clarified: “[T]he
Due Process Clause does not always require the provision of counsel in civil proceedings where
incarceration is threatened.”97
The Supreme Court came close to recognizing an indigent, civilly committed person’s right to
counsel in Vitek v. Jones, which concerned a criminal defendant challenging his transfer from a
state prison to a mental hospital.98 Under state law, if a prison facility could not adequately treat a
mentally ill prisoner, the state could transfer the prisoner to a mental hospital.99 The prisoner
challenged the state law under the Fourteenth Amendment’s Due Process Clause, arguing his
transfer was unconstitutional because he was not given notice, a hearing, or the opportunity to be
represented by counsel.100 On the subject of the Due Process Clause’s requirement of counsel, the
plurality noted it had not previously found an absolute right to counsel for an indigent prisoner
facing “other deprivations of liberty,” but that illiterate or uneducated prisoners “have a greater
need for assistance in exercising their rights.”101 Four Justices observed that under those
circumstances, “it is appropriate that counsel be provided to indigent prisoners whom the State

91 Id. at 426.
92 Id. at 427.
93 Id. at 429.
94 Id. The Supreme Court did not specify whether the clear-and-convincing standard, as set forth in Addington, was to
be applied retroactively. In 1987, almost 10 years after Addington was decided, the D.C. District Court observed that
many patients civilly committed under the lower “preponderance” standard were not given a hearing to determine
whether their confinement was justified by “clear and convincing evidence.” Streicher v. Prescott, 663 F. Supp. 335
(D.D.C. 1987). The court held that the patients were constitutionally “entitled to a review of their commitment
according to constitutional standards.” Id. at 342–43. The court reasoned that that although many of the patients in the
class action had been confined in St. Elizabeths Hospital in D.C. for more than 20 years, they still had a
constitutionally recognized liberty interest. Id. at 339. Many other lower courts have reached the same conclusion. See,
e.g., Clark v. Cohen, 613 F. Supp. 684 (E.D. Pa. 1985), aff’d, 794 F.2d 79 (3d Cir. 1986).
95 Goldberg v. Kelly, 397 U.S. 254 (1970), superseded by statute, Personal Responsibility and Work Opportunity
Reconciliation Act, 42 U.S.C. § 601 (1996), as recognized in Hudson v. Bowling, 752 S.E.2d 313 (W. Va. 2013).
96 Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981).
97 Turner v. Rogers, 564 U.S. 431 (2011) (emphasis added).
98 Vitek v. Jones, 445 U.S. 480 (1980).
99 Id. at 480.
100 Id. at 485.
101 Id. at 496 (citing Gagnon v. Scarpelli, 411 U.S. 778 (1973)).
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seeks to treat as mentally ill,” but Justice Lewis Powell expressly disagreed, arguing that the
prisoner was entitled only to “competent help” at the hearing, rather than counsel.102
Thirty years after the Court decided Vitek, the Justices were again confronted with the question of
the circumstances under which an indigent individual is entitled to counsel in a civil hearing
where a deprivation of liberty is at stake. In Turner, a parent who failed to pay child support was
held in willful civil contempt and sentenced to 12 months in prison under state law.103 In the
proceeding which resulted in the defendant’s eventual incarceration, neither parent was
represented by counsel.104 The defendant appealed the incarceration, arguing that he was entitled
to representation by counsel under the Due Process Clause because the proceeding resulted in the
deprivation of his liberty.105 Applying the Mathews v. Eldridge balancing test, the Court found
that even though the defendant was subject to incarceration, the Due Process Clause did not
entitle him to counsel at the child support hearing.106 In reaching this conclusion, the Court found
it significant that neither party in the proceeding was represented by counsel, reasoning that if all
defendants held in contempt for failure to pay child support were entitled to counsel, this could
create “asymmetry of representation” if the opposing parent seeking the support were not also
represented.107 The Court also pointed out that “substitute procedural safeguards” could be put in
place to “reduce the risk of an erroneous deprivation of liberty . . . without incurring some of the
drawbacks inherent in recognizing an automatic right to counsel.”108
Lower federal courts have also considered the circumstances under which civilly committed
patients are entitled to representation by counsel. For example, the Tenth Circuit held in Heryford
v. Parker that the Due Process Clause extends the right to counsel to a person challenging an
involuntary civil commitment.109 The case concerned a petitioner who was civilly committed as a
child under Wyoming state law.110 After being reconfined as an adult, the patient’s family brought
a habeas petition, alleging the patient had been denied his rights to counsel and confrontation at
his initial commitment hearing.111 Persuaded by the Supreme Court’s reasoning in In re Gault,
which concerned delinquency proceedings resulting in civil commitment, the Eighth Circuit
found that the Due Process Clause entitled the petitioner to representation by counsel.112 The
court stated: “It matters not whether the proceedings be labeled ‘civil’ or ‘criminal’ or whether the
subject matter be instability or juvenile delinquency. It is the likelihood of involuntary
incarceration . . . [which] commands observance of the constitutional safeguards of due

102 Id. at 497 (Powell, J., dissenting).
103 Turner v. Rogers, 564 U.S. 431, 437 (2011).
104 Id.
105 Id. at 438.
106 Id. at 446. But see infra note 108 (noting that the Court reversed on other grounds).
107 Id. at 447.
108 Id. Although the Supreme Court found the Due Process Clause did not guarantee the right to counsel, it did overturn
the state supreme court’s ruling on the basis that the state did not satisfy due process requirements because it failed to
provide the defendant with “alternative procedures,” such as notice signaling the significance of the situation and “fair
opportunity to present, and to dispute, relevant information, and court findings.” Id. at 448–49. Four Justices dissented,
arguing that the beginning and end of the case rested on the premise that “the Due Process Clause of the Fourteenth
Amendment does not provide a right to appointed counsel for indigent defendants facing incarceration in civil contempt
proceedings.” Id. at 450 (Thomas, J., dissenting).
109 396 F.2d 393 (10th Cir. 1968).
110 Id. at 394.
111 Id. at 395.
112 Id. at 395–97 (discussing 387 U.S. 1 (1967)).
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process.”113 The court found that when the state exercises its parens patriae power to deprive
someone of their liberty, it is obligated to ensure due process, which “necessarily includes the
duty to see that a subject of an involuntary commitment proceeding[] is afforded the opportunity
to the guiding hand of legal counsel at every step of the proceedings, unless effectively waived by
one authorized to act in his behalf.”114
Many state courts have also considered whether patients challenging civil commitment are
entitled to representation by counsel, and many have found that counsel is generally needed to
ensure due process.115 For example, the Alabama Supreme Court recently set aside a probate
court’s order appointing a temporary guardian for an allegedly incompetent widow with dementia
because of a fundamental lack of due process.116 The petitioner’s business associates filed an
emergency petition seeking a guardian and conservator for her estate.117 During the initial
hearing, the judge dismissed the petitioner’s attorneys after finding they had a conflict of interest
in the case and denied petitioner’s motion for a continuance.118 The court appointed a guardian
without allowing petitioner an opportunity to question the testifying witnesses or call any of her
own witnesses.119
Petitioner appealed to the Alabama Supreme Court, arguing that the probate court deprived her of
procedural due process by dismissing her counsel and proceeding with the hearing without
allowing her time to find new representation.120 The Alabama Supreme Court agreed, holding that
procedural due process under the Fourteenth Amendment “contemplates the rudimentary
requirements of fair play,” and that petitioner’s procedural due process rights were violated when
her counsel was dismissed and she was not granted a continuance to find new counsel.121 The
Alabama Supreme Court called the probate court’s denial of a continuance “unfathomable,”
noting that the five-month delay between the hearings for the emergency and permanent petitions
suggested that a true emergency did not exist.122
Other state courts have held that patients with mental illnesses are not constitutionally entitled to
counsel. For example, the Minnesota Court of Appeals held that the Due Process Clause does not
confer a right to counsel for an individual challenging a civil commitment proceeding in Beaulieu
v. Minnesota Department of Human Services.123 The case concerned a civilly committed prisoner
claiming ineffective assistance of counsel after his attorney did not timely appeal his commitment
order.124 The court of appeals stated: “We naturally are disinclined to recognize a federal

113 Id. at 396.
114 Id.
115 See generally Ex parte Bashinsky, 319 So. 3d 1240 (Ala. 2020); Jenkins v. Dir. of the Va. Ctr. for Behav. Rehab.,
624 S.E.2d 453 (Va. 2006); In re Hop, 171 Cal. Rptr. 721, 623 P.2d 282 (1981); In re Fisher, 313 N.E.2d 851 (Ohio
1974); In re Beverly, 342 So. 2d. 481 (Fla. 1977), superseded by statute, FLA. STAT. § 394.467(1)(a)2.b (1999), as
recognized in Craig v. State, 804 So. 2d 532, 534 (Fla. Dist. Ct. App. 2002). But see Beaulieu v. Dep’t of Hum. Servs.,
798 N.W.2d 542 (Minn. Ct. App. 2011) (declining to apply Heryford, 396 F.2d 393, to recognize a federal
constitutional right to counsel under the Fourteenth Amendment Due Process Clause for a person challenging an
involuntary civil commitment).
116 Bashinsky, 319 So. 3d 1240.
117 Id. at 1247.
118 Id. at 1251.
119 Id.
120 Id. at 1254.
121 Id. at 1263 (quoting Ex parte Weeks, 611 So. 2d 259, 261 (Ala. 1992).
122 Bashinsky, 319 So. 3d at 1261.
123 798 N.W.2d 542 (Minn. Ct. App. 2011).
124 Id. at 545.
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constitutional right that has never been recognized by the United States Supreme Court, has not
been recognized in 10 of the 11 regional federal circuits, and has not been adopted by the
supreme courts of 48 of the 50 states.”125
Right to an Expert Witness at Trial
Because states require proof of mental illness and evidence that the patient is dangerous to
himself or others prior to involuntary civil commitment,126 expert testimony from a mental health
provider is often introduced at trial. The Supreme Court has found that a state must provide
indigent criminal defendants with a psychiatrist when the state challenges the defendant’s sanity
at the time of the offense in question, but the Court has never directly addressed the issue of
whether an indigent individual subject to civil confinement has the right to a psychiatric expert.127
Other federal courts have considered this issue, finding that due process concerns could arise
under certain circumstances.
In Goetz v. Crosson, the Second Circuit addressed the requisite psychiatric expert assistance that a
state must provide to an indigent patient subject to involuntary confinement.128 In the case, an
involuntarily confined patient brought a class action challenging confinement, in part on the basis
that the state violated the committed patients’ due process rights by failing to guarantee them a
psychiatrist.129 Under New York law, a patient subject to involuntary confinement had the right to
counsel in all proceedings related to confinement; the court could also appoint two independent
psychiatrists to assess the patient, but was not required to do so.130 The petitioner argued that due
process guaranteed indigent patients a right to both a consulting and independent psychiatrist, and
the court addressed each in turn.131
The court first noted the difference in “consulting” and “independent” psychiatrists, namely that a
consulting psychiatrist would assist a patient’s counsel in preparation for and during a
commitment hearing and could testify, while an independent psychiatrist, unassociated with the
state, would offer testimony to ensure accuracy.132 In finding that due process did not require
appointment of a consulting psychiatrist in every situation, the court reasoned that the purpose of
the psychiatrist would be to provide testimony favorable to noncommitment of the patient and to
assist the patient’s counsel in preparing the case.133 However, the court observed that the
functions of a consulting psychiatrist “are not of sufficient import to implicate due process in
every proceeding.”134 The Second Circuit further distinguished civil and criminal confinement,
citing the Supreme Court’s comment in Addington that “a civil commitment proceeding can in no
sense be equated to a criminal prosecution.”135 The court concluded that due process was not

125 Id. at 549. The court of appeals recognized the 10th Circuit’s ruling in Heryford v. Parker, 396 F.2d 393 (10th Cir.
1968), as well as the Supreme Court’s plurality opinion in Vitek v. Jones, 445 U.S. 480 (1980). Beaulieu, 798 N.W.2d
at 549.
126 See discussion of O’Connor v. Donaldson, 422 U.S. 563 (1975), infra “Showing of Requisite Conduct—
“Dangerousness”
127 Ake v. Oklahoma, 470 U.S. 68, 83 (1985).
128 Goetz v. Crosson, 967 F.2d 29 (2d Cir. 1992).
129 Id. at 30–31.
130 Id. at 32 (citing N.Y. JUD. LAW §§ 35(1)(a), 35(4)).
131 Goetz, 967 F.2d at 33.
132 Id. at 31, 36.
133 Id.
134 Id. at 34.
135 Id. at 33 (quoting Addington v. Texas, 441 U.S. 418, 428 (1979)).
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focused on decreasing the number of civil confinements in general, which could happen were
every patient guaranteed an expert psychiatrist, but only erroneous civil confinements.136 The
court also observed that there was no basis for the assumption that a psychiatrist testifying on
behalf of the state would be biased toward confinement.137
On the question of whether the Due Process Clause required the appointment of an independent
psychiatrist for an indigent patient, the Second Circuit found that if a judge were to find that the
testimony of an independent psychiatrist was needed, a due process concern could arise were
such a psychiatrist not appointed.138 The Second Circuit noted that in cases where judges request
independent expert testimony, “the individual’s interests in both freedom and self-protection are
directly affected, and the failure to provide such testimony may implicate due process
concerns.”139 The court further observed that “when the presiding judge determines that such
testimony is necessary to a reliable assessment of a patient, an indigent individual should have the
right to obtain the testimony of an independent psychiatrist.”140
Many state courts have recognized the right of indigent patients with SMI to obtain a court-
appointed expert witness when challenging their civil commitment. For example, a New Jersey
state court found the Fourteenth Amendment guarantees the right to an “independent psychiatric
examination” for indigent patients.141 Pennsylvania has recognized a similar right.142 Although
many states allow indigent patients with SMI the right to a court-appointed expert, they do not
entitle the patient to “shop around” for the most favorable expert.143
Right to a Jury Trial
Although states may create the right to a jury trial for individuals facing civil commitment,
neither the Sixth,144 Seventh,145 or Fourteenth Amendments have been interpreted to guarantee

136 Id. at 34.
137 Id.
138 Id. at 36.
139 Id.
140 Id. at 37. The Second Circuit remanded the case to the district court to determine whether New York’s procedures
may not provide access to independent psychiatrist testimony in some instances when a trial judge requests it. On
remand, however, the parties agreed there was never a case in which a judge appointed an independent psychiatrist and
the court was unable to provide one. Goetz v. Crosson, 838 F.Supp. 136, 140 (S.D.N.Y. 1993).
141 In re Gannon, 301 A.2d 493 (N.J. Cnty. Ct. 1973). In Gannon, the court reasoned, “the presence of a lawyer at the
commitment hearing is not a sufficient safeguard for the patient’s rights. No matter how brilliant the lawyer may be, he
is no position to effectively contest the commitment proceedings because he has no way to rebut the testimony of the
psychiatrist from the institution who has already certified to the patient’s insanity.” Id. at 494.
142 Accord Dixon v. Att’y Gen. of Pa., 325 F. Supp. 966 (M.D. Pa. 1971).
143 See, e.g., Naples v. United States, 307 F.2d 618 (D.C. Cir. 1962). In ruling on a motion for the government to pay
the cost of a psychiatrist appointed by an indigent, mentally ill criminal defendant, the court stated it would not “permit
any defendant, at Government expense, to employ a psychiatrist of his own choosing, which means that a defendant
can shop around for a favorable expert witness, and then have the Government pay for it. I don’t consider that good
administration of justice.” Id. at 623. Accord Proctor v. Harris, 413 F.2d 383 (D.C. Cir. 1969).
144 The Sixth Amendment guarantees a federal criminal defendant the right to a jury trial, and both state and federal
courts have made clear that it applies only to criminal prosecutions, declining to extend it to civil commitment cases.
U.S. CONST. amend. VI. See, e.g., White v. White, 196 S.W. 508 (Tex. 1917); United States v. Sahhar, 917 F.2d 1197,
1205–07 (9th Cir. 1990); accord Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008).
145 The Seventh Amendment guarantees the right to a jury trial in federal civil cases “at common law” seeking
monetary damages in excess of $20. U.S. CONST. amend. VII. For more information about the Seventh Amendment
right to a jury trial, see CRS Legal Sidebar LSB10883, The Right to a Jury Trial in Civil Cases Part 1: Introduction
and Historical Background, by Wen W. Shen. The Supreme Court has never ruled on whether the Seventh Amendment
(continued...)
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such a right. The Supreme Court has never explicitly held that the Fourteenth Amendment’s Due
Process Clause extends the right to a jury trial to a person facing an involuntary civil
commitment. The Court has historically interpreted the Fourteenth Amendment to provide states
with significant discretion to decide whether to provide for jury trials in civil cases.146 For
example, in Simon v. Craft, the Court held that the Due Process Clause does not require a state
court to provide a specific type of proceeding to an individual challenging a competency
proceeding, as long as the state gives the affected person notice and the right to defend.147 In
McKeiver v. Pennsylvania, the Court declined to extend the Fourteenth Amendment’s Due
Process Clause protections to jury trials for delinquent juveniles.148
If an individual challenged involuntary civil commitment on the basis that the patient was not
provided a jury trial, the reasoning of McKiever could be applied to decline the recognition of
such a right. Indeed, the Supreme Court has observed that the question of whether a person is
mentally ill and poses a threat of harm to themselves or others can be a complex question of fact
and generally rests on the testimony of experts.149

guarantees the right to a jury trial for involuntary commitment proceedings, but federal circuit courts considering the
question have not recognized such a right. See, e.g., Poole v. Goodno, 335 F.3d 705, 710–11 (8th Cir. 2003), accord
United States v. Carta, 592 F.3d 34 (1st Cir. 2010); Aruanno v. Hayman, 384 Fed. App’x 144 (3d Cir. 2010).
The Supreme Court has held that the Seventh Amendment preserves the right to a jury trial when the right existed
under English common law at the time of the Amendment’s adoption. Balt. & Carolina Line, Inc. v. Redman, 295 U.S.
654, 657 (1935). However, many courts have held that the Seventh Amendment does not apply in incompetency
proceedings because there is no “value” in controversy at issue. Ward v. Booth, 197 F.2d 963 (9th Cir. 1952). For
example, the Ninth Circuit reasoned in an incompetency proceeding: “The matter in controversy is the question of the
competence [or] incompetence of the person named, and while the result of such a determination may affect extensive
property holdings, it cannot be said that the issue to be tried is one where there is any value in controversy.” Id. at 967
(internal quotations omitted). The Ninth Circuit’s reasoning can also be applied to civil commitment cases, such that
there is no “value in controversy” at issue, and therefore no right to a jury trial under the Seventh Amendment.
146 See, e.g., N.Y. Central R.R. Co. v. White, 243 U.S. 188, 207–08 (1916); McKeiver v. Pennsylvania, 403 U.S. 528,
547 (1971), superseded by statute, Revised Kansas Juvenile Justice Code, KAN. STAT. ANN. §§ 38-2301–38-23100
(2006), as recognized in In re L.M., 186 P.3d 164 (Kan. 2008). For a general discussion of the states’ powers to
regulate procedures in the Fourteenth Amendment context, see Cong. Rsch. Serv., Power of States to Regulate
Procedures, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt14-S1-5-4-7/ALDE_
00013756/ (last accessed Apr. 10, 2023).
147 182 U.S. 427, 437 (1901). In a case where a widowed plaintiff challenged a state probate court’s order declaring her
incompetent on Due Process Clause grounds, the Supreme Court held: “[T]he Due Process Clause of the Fourteenth
Amendment does not necessitate that the proceedings in a state court should be by a particular mode, but only that there
shall be a regular course of proceedings in which notice is given of the claim asserted, and an opportunity afforded to
defend against it.” Id. (quoting Louisville & N. R. Co. v. Schmidt, 177 U.S. 230, 236 (1900)).
148 McKeiver, 403 U.S. at 528. Although McKeiver did not concern an involuntary civil commitment, juvenile
delinquency proceedings are a type of civil proceeding wherein the finding of delinquency may result in involuntary
confinement in a juvenile detention center. Id. In McKeiver, a group of juveniles facing delinquency charges challenged
the proceedings on Fourteenth Amendment Due Process Clause grounds, arguing they should be entitled to a trial by
jury. Id. The Court first noted that juvenile court proceedings have both civil and criminal elements, which can make
them difficult to distinguish. Id. at 541. In other cases concerning juvenile proceedings before the Court, the applicable
due process standards concerned fundamental fairness, which emphasized factfinding. Id. at 543. For other cases in
which the Court considers due process requirements for juvenile proceedings, see In re Gault, 387 U.S. 1 (1967); In re
Winship, 397 U.S. 358 (1970). The Court observed, however: “[O]ne cannot say that in our legal system the jury is a
necessary component of accurate factfinding,” and thus that the Fourteenth Amendment did not give juveniles faced
with delinquency adjudications the right to a jury trial. McKeiver, 403 U.S. at 543. The Court also recognized the
potential for abuse that juvenile delinquency proceedings carry, but they declined to hold that any of the system’s
abuses had a “constitutional dimension.” Id. at 547–48.
149 See, e.g., Addington v. Texas, 441 U.S. 418 (1979). The Court noted: “Whether the individual is mentally ill and
dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be
interpreted by expert psychiatrists and psychologists.” Id. at 429.
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Even if the Fourteenth Amendment does not guarantee the right to a jury trial before an
involuntary civil confinement, at least 17 states offer jury trials to individuals facing long-term
civil confinement, although the right can be waived or otherwise limited to specific
circumstances.150 For example, New York state law allows for patients challenging an involuntary
civil commitment to a jury trial when requested, but patients can waive this right if they do not
raise it in a timely manner.151
Substantive Due Process Protections for Individuals Subject to
Involuntary Civil Confinement
This section discusses two types of constitutionally protected substantive due process rights that
courts have recognized. The first is the liberty interest of all persons to be free from confinement;
the second is related to the rights of confined persons to safe conditions. As discussed above, the
Fourteenth Amendment protects individuals from the encroachment of state laws that restrict their
“life, liberty, or property, without due process of law.”152 Traditionally, “liberty” means freedom
from physical restraint or confinement, but the Supreme Court has also interpreted the Due
Process Clause’s liberty interests to include the rights of a person to enjoy life and live freely.153
The Court has also recognized that the Due Process Clause protects certain fundamental
constitutional rights (e.g., the rights to marry and use contraceptives) from state interference, even
when the state provides sufficient procedures, although some Supreme Court Justices have
expressed disagreement with this interpretation.154 Nevertheless, the Court has recognized that the

150 E.g., ALASKA STAT. ANN. § 47.30.735(e); CAL. WELF. & INST. CODE § 5302; COLO. REV. STAT. § 27-65-113(1); D.C.
CODE § 21-544; 405 ILL. COMP. STAT. § 5/3-802; KAN. STAT. ANN. § 59-2960(a)(1); KY. REV. STAT. ANN.
§ 202a.076(2); MICH. COMP. LAWS ANN. § 330.1453(2); MO. REV. STAT. § 632.350(1), (3); MONT. CODE ANN. § 53-21-
125; N.M. STAT. ANN. § 43-1-13(D); N.Y. MENT. HYG. LAW § 9.35; OKLA. STAT. tit. 43a, § 5-411(3); TEX. HEALTH &
SAFETY CODE §§ 574.032(a)–(b), (d); VA. CODE ANN. § 37.2-821(F); WASH. REV. CODE § 71.05.300(2); WIS. STAT.
ANN. §§ 51.20(2)(B), (11); WYO. STAT. ANN. § 25-10-110(g). These examples were identified from a review of the
current state statutes (as retrieved from Westlaw’s state statute databases) cited in Margaret J. Lederer, Not So Civil
Commitment: A Proposal for Statutory Reform Grounded in Procedural Justice, 72 DUKE L.J. 903, 921 n.134 (2022)
(“While many states leave the fact-finding to the presiding judge or officer, at least fourteen states allow respondents to
elect a jury trial.”) and Vicki Gordon Kaufman, The Confinement of Mabel Jones: Is There a Right to Jury Trial in
Civil Commitment Proceedings, 6 FLA. ST. UNIV. L. REV. 103 (1978).
151 N.Y. MENT. HYG. LAW § 9.35 (2022).
152 U.S. CONST. amend XIV, § 1. Cong. Rsch. Serv., Overview of Substantive Due Process, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt14-S1-6-1/ALDE_00013814/ (last accessed Feb. 15, 2023).
153 Cong. Rsch. Serv., Liberty Deprivations and Due Process, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt14-S1-5-2/ALDE_00013748/ (last accessed Mar. 3, 2023) (citing
Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897) (“The liberty mentioned in [the Fourteenth] amendment means, not
only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is
deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all
lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; [and] to pursue any livelihood
or avocation . . . .”)).
154 Cong. Rsch. Serv., Overview of Substantive Due Process, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt14-S1-6-1/ALDE_00013814/ (last accessed Feb. 15, 2023). For
more information on the Supreme Court’s interpretation of the Fourteenth Amendment Due Process Clause in the
context of substantive due process in general, see Cong. Rsch. Serv., Overview of Noneconomic Substantive Due
Process, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt14-S1-6-3-1/ALDE_
00013815/ (last accessed Apr. 10, 2023). See also Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that the
Fourteenth Amendment Due Process Clause included constitutional protections for the rights to marriage, family, and
procreation); Obergefell v. Hodges, 576 U.S. 644, 721 (2015) (holding that the Due Process Clause required states to
recognize marriages between same sex couples) (Thomas, J. and Scalia, J., dissenting, calling the majority’s
interpretation of the Fourteenth Amendment as protective of substantive due process rights a “dangerous fiction” that
“distorts the constitutional text” (internal citations omitted))).
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Due Process Clause protects the liberty interests of patients with SMI who are subject to
involuntary confinement,155 and it has made clear that even when a person is subject to
involuntary confinement, this does not strip him or her of all constitutionally protected liberty
interests.156
This section discusses a few of the constitutional, substantive due process protections, including
the dangerousness standard and a patient’s right to safety and freedom from restraint. The section
concludes with a discussion of the rights of involuntarily hospitalized patients to both receive and
refuse medical treatment.
Showing of Requisite Conduct—“Dangerousness”
In 1964, Congress passed the Ervin Act, which governs the District’s civil commitment process
today.157 The law provides threshold requirements for civil commitment, including proof of a
mental illness and a showing of conduct that is likely to be injurious to self or others.158 In other
words, proof of a mental illness alone is insufficient to justify an involuntary civil commitment
under the Act; one must also prove that the patient poses a threat to his or others’ safety.159 At the
time of its enactment, the Ervin Act served as an example for other states that needed to update
and modernize their civil commitment procedures, as it guaranteed certain civil rights for
committed patients and established protective processes to prevent unnecessary or wrongful
hospitalization.160
In O’Connor v. Donaldson, the Supreme Court directly acknowledged the liberty interest of
individuals facing involuntary confinement and adopted a similar “dangerousness” requirement
for an individual to be subject to civil commitment. The case involved a Florida citizen,
involuntarily confined in a mental institution for nearly 15 years, who brought an action for
damages under 42 U.S.C. § 1983 against the institution alleging a violation of his liberty under
the Due Process Clause.161 The patient argued that he was not mentally ill and his confinement
resulted in an “intentional[] and malicious[]” deprivation of liberty.162 At trial, the evidence
showed that although the patient had been diagnosed with paranoid schizophrenia, he had never
been a danger to others at any point in his life, he was not suicidal, and he had successfully held a
job prior to his institutionalization.163 The evidence further demonstrated that while confined, the
patient received only “custodial care,” rather than treatment for a mental illness.164 The case
presented the “relatively simple, but nonetheless important question,” of whether the confinement
violated the patient’s liberty interest.165

155 O’Connor v. Donaldson, 422 U.S. 563 (1975); Vitek v. Jones, 445 U.S. 480 (1980).
156 Youngberg v. Romeo, 457 U.S. 307 (1982).
157 Hospitalization of the Mentally Ill Act, Pub. L. No. 88-597, 78 Stat. 944, 947 (1964) (codified as amended in
scattered sections of D.C. CODE §§ 21-, 32-). See also D.C. CODE. ANN. §§ 21-501–21-592 (2002).
158 Hospitalization of the Mentally Ill Act, 78 Stat. at 947.
159 Id. See also Testa & West, supra note 29.
160 Bohman, supra note44, at 856.
161 O’Connor v. Donaldson, 422 U.S. 563 (1975).
162 Id. at 564–65.
163 Id. at 568.
164 Id. at 569.
165 Id. at 573. The Supreme Court granted certiorari in the case after the U.S. Court of Appeals for the Fifth Circuit
issued a decision focused largely on whether the Fourteenth Amendment guarantees a right to medical treatment for
persons who are involuntarily confined. The Court declined to decide whether persons subject to involuntary
confinement have a right to treatment. Id.
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The Supreme Court observed that even if mentally ill persons could be reasonably and accurately
identified, which was a challenge under the currently evolving science, this alone was not a
justification for institutionalization.166 Neither is it acceptable for states to “fence in the harmless
mentally ill . . . to avoid public unease,” because the Court found that “[m]ere public intolerance
or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.”167 The
Court stated: “A finding of ‘mental illness’ alone cannot justify a State’s locking a person up
against his will and keeping him indefinitely in simple custodial confinement. . . . [T]here is [ ] no
constitutional basis for confining such persons involuntarily if they are dangerous to no one and
can live safely in freedom.”168 As discussed below, however, the Court did not address the degree
of dangerousness that must be proven to justify an involuntary commitment; as a result, the issue
has been largely left up to states.169
In 1992, the Supreme Court decided Foucha v. Louisiana, addressing the question of whether
dangerousness alone, without evidence of mental illness, was sufficient to hold a person in civil
confinement, and finding that it was not.170 After being found not guilty for burglary by reason of
insanity, the petitioner in Foucha was committed to a mental hospital.171 Several years later, a
court-appointed doctor found he had recovered from his mental illness, and the hospital
superintendent recommended his release.172 At a lower court hearing regarding his release, the
same doctor testified that petitioner was not mentally ill, but had an “antisocial personality,”
which was untreatable, and the doctor would not “feel comfortable in certifying that [petitioner]
would not be a danger to himself or to other people.”173 The trial court thus found that petitioner
was dangerous and denied his release.174
Citing its earlier decision in Addington v. Texas, the Supreme Court stated that involuntary civil
commitment required the state to prove, by clear and convincing evidence, “that the person
sought to be committed is mentally ill and that he requires hospitalization for his own welfare and
protection of others.”175 The Court also pointed to an earlier ruling in Jones v. United States for
the assertion that to comply with due process, the “nature of commitment [must] bear some
reasonable relation to the purpose for which the individual is committed.”176 The Foucha Court
was unconvinced by the state’s argument that the patient should remain committed on the basis of
his antisocial personality, finding if the patient was no longer an “insanity acquittee,” then he was
entitled to constitutionally adequate procedures, including a hearing, as to his current mental

166 Id. at 575.
167 Id.
168 Id. Chief Justice Warren Burger wrote a separate, concurring opinion to clarify that there is “no basis for equating an
involuntarily committed mental patient’s unquestioned unconstitutional right not to be confined without due process of
law with a constitutional right to treatment.” Id. at 587–88 (Burger, J., concurring).
169 See, e.g., Evelyn Burton, Treatment Before Tragedy; Reform Maryland Involuntary Commitment Law, THE BALT.
SUN, Dec. 13, 2021, https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-1214-involuntary-treatment-criteria-
20211213-zxuknjmrszhxnckkgt5esghwwa-story.html.
170 Foucha v. Louisiana, 504 U.S. 71 (1992).
171 Id. at 73–74.
172 Id. at 74–75.
173 Id. at 75.
174 Id.
175 Id. (emphasis added) (quoting Addington v. Texas, 441 U.S. 418 (1979)).
176 Id. at 79 (referencing Jones v. United States, 463 U.S. 354 (1990) (holding that the Constitution permits the federal
government to confine a person found not guilty by reason of insanity to a mental institution “until such time as he has
regained his sanity or is no longer a danger to himself or society,” and that indefinite commitment of an inmate
acquitted based only on proof of insanity by a preponderance of the evidence does not violate due process)).
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state.177 The Court further noted: “[T]he Due Process Clause contains a substantive component
that bars certain arbitrary, wrongful government actions regardless of the fairness of the
procedures used to implement them.”178 Citing its decision in O’Connor, the Court held that the
state could not constitutionally continue petitioner’s hospitalization because he was no longer
mentally ill.179
Given the Supreme Court’s guidance that patients must be both mentally ill and a danger to
themselves or others to justify involuntary hospitalization, states have leeway to craft their own
civil commitment laws and procedures. According to a 2020 Treatment and Advocacy Center
report, while most state laws recognize that a patient with SMI’s inability to meet basic needs for
food, shelter, and clothing make him a danger to himself for purposes of involuntary
hospitalization, a wide variety of state standards on dangerousness exist.180 For example, like
almost all states, North Carolina’s involuntary commitment law requires patients to be mentally
ill and dangerous to self or others.181 But, unlike some other states, the law specifically delineates
ways in which an individual can be “dangerous to self,” including being unable to “conduct . . .
daily responsibilities and social relations, or to satisfy [the] need for nourishment, personal or
medical care, shelter, or self-protection and safety.”182 North Carolina law also requires “a
reasonable probability” that the person would suffer “serious physical debilitation within the near
future unless adequate treatment is given.”183 By contrast, Maryland’s civil commitment laws
provide no specific criteria for dangerousness, stating only that a patient must present “a danger
to the life or safety of the individual or of others” as a criteria for confinement.184 The
dangerousness standard for admission is not discussed or defined elsewhere in the statute or state
regulations.
Both state and lower federal courts have also grappled with the requisite threshold of
dangerousness for purposes of involuntary commitment. For example, in 2020, the Florida Court
of Appeals reversed the civil commitment of a patient who failed to take his medication and who
had “issues managing his hygiene,” finding this was insufficient to present a threat of substantial
harm to the patient for purposes of the dangerousness standard.185 As discussed above, New York
City has also wrestled with the appropriate interpretation of “dangerousness” for purposes of
involuntarily hospitalizing unhoused individuals with SMI. In 1987, New York City Mayor Ed
Koch instituted a controversial policy to civilly commit unhoused people who appeared incapable
of self-care, which gained a great deal of media attention after the involuntary hospitalization of
an unhoused woman named Joyce Brown, also known as Billie Boggs.186 A similar policy to
involuntarily hospitalize unhoused people with SMI was carried out by New York City Mayor

177 Id.
178 Id. at 80 (internal citations omitted).
179 Id. at 78.
180 See discussion of the concept of dangerousness in LISA DAILEY ET AL., TREATMENT ADVOC. CTR., GRADING THE
STATES: AN ANALYSIS OF U.S. PSYCHIATRIC TREATMENT LAWS 13 (2020), https://www.treatmentadvocacycenter.org/
storage/documents/grading-the-states.pdf.
181 N.C. GEN. STAT. § 122C-268(j) (2021).
182 N.C. GEN. STAT. § 122C-3.11(a)(1)(I) (2021).
183 N.C. GEN. STAT. § 122C-3.11(a)(1)(II) (2021).
184 MD. HEALTH GEN. § 10-617(a)(3) (2016). The Code of Maryland Regulations does not further delineate the
dangerousness standard or provide a definition of what qualifies as dangerousness to self or others. See MD. CODE
REGS. 10.21.01 (2022).
185 J.B. v. Florida, 307 So. 3d 986, 988 (Fla. Dist. Ct. App. 2020)
186 See Luis R. Marcos, Taking the Mentally Ill Off the Streets: The Case of Joyce Brown, 20 INT’L J. OF MENTAL
HEALTH 7 (1991). See also Boggs v. N.Y.C. Health & Hosps. Corp., 132 A.D.2d 340, 361–62 (App. Div. 1987).
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Bill de Blasio during his administration.187 In a case challenging the de Blasio policy, the New
York State Supreme Court ordered the release of an involuntarily hospitalized patient, finding his
due process rights were violated because the hospital failed to establish he had a mental health
disorder or was in need of further treatment.188 New York City Mayor Eric Adams’s recent policy
pushing for the forced hospitalization of unhoused persons with mental illness has faced similar
challenges.189
The Rights to Safety and Freedom from Confinement
The Supreme Court addressed other constitutionally protected liberty interests to which civilly
committed patients are entitled under the Fourteenth Amendment’s Due Process Clause in
Youngberg v. Romeo.190 The Youngberg case is different from many of the others discussed in this
report, because rather than a challenge to the confinement itself, the case discusses the substantive
due process rights of individuals once they are confined. The Court held that involuntarily
committed patients have the rights to reasonably safe conditions, freedom from restraint, and
minimally adequate training, and that when determining whether the state has adequately
protected these liberty interests, the proper standard is whether professional judgment was
exercised by a qualified professional.191
The petitioner in Youngberg, the resident of a mental health facility, suffered numerous injuries
while involuntarily committed.192 While receiving medical treatment at a hospital, he was
physically restrained for parts of the day.193 The patient’s mother sued the health providers,
arguing they failed to keep him safe from violence, both his own and that of other patients against
him; that they unlawfully physically restrained him; and that they failed to provide him with
“appropriate treatment or programs” for his condition.194 The jury returned a verdict for the
patient, finding the providers violated his Eighth Amendment rights.195 An en banc Third Circuit
reversed, holding that the Fourteenth Amendment, rather than the Eighth, provided the proper
constitutional basis for relief.196

187 Mark S. Kaufman, Crazy Until Proven Innocent? Civil Commitment of the Mentally Ill Homeless, 19 COLUM. HUM.
RTS. L. REV. 333 (1988); Press Release, Office of the Mayor, Mayor de Blasio Announces “NYC Safe,” An Evidence-
Driven Public Safety And Public Health Program That Will Help Prevent Violence (Aug. 6, 2015),
https://www.nyc.gov/office-of-the-mayor/news/540-15/mayor-de-blasio-nyc-safe-evidence-driven-public-safety-
public-health-program.
188 MP v. Ramesar, 25 N.Y.S.3d 577 (Sup. Ct. 2016).
189 See, e.g., Baerga v. City of New York, No. 21-CV-05762 (PAC), 2023 WL 1107633 (S.D.N.Y. Jan. 30, 2023). As
discussed in the court’s opinion, the case began prior to the creation of Mayor Adams’s policy to involuntarily
hospitalize unhoused people in New York City. The plaintiffs filed an emergency temporary restraining order
challenging the policy shortly after it was announced, but the court found the plaintiffs lacked standing to challenge it.
As of the date of this writing, the policy stands. Id. at *2. It is likely that other cases challenging the policy will be filed
in the future.
190 457 U.S. 307 (1982).
191 Id.
192 Id. at 310.
193 Id.
194 Id. at 311.
195 The Eighth Amendment prohibits cruel and unusual punishment as well as excessive bail and fines. U.S. CONST.
amend. VIII. The Third Circuit found that the Eighth Amendment was the improper constitutional basis for a civilly
committed individual’s rights, as the Eighth Amendment applies only to individuals who have committed a crime.
Youngberg, 457 U.S. at 312.
196 Id. at 312.
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On review, the Supreme Court first observed that “[t]he mere fact that [petitioner] has been
committed under proper procedures does not deprive him of all substantive liberty interests under
the Fourteenth Amendment.”197 With respect to the right to confinement under safe conditions,
the Court emphasized that individuals who are lawfully confined still have a right to personal
safety, reasoning that “[i]f it is cruel and unusual punishment to hold convicted criminals in
unsafe conditions, it must be unconstitutional to confine the involuntarily committed—who may
not be punished at all—in unsafe conditions.”198 The Court used similar reasoning to recognize
the patient’s right to freedom from bodily restraint, noting that even the criminally incarcerated
have such a right.199 With respect to the patient’s third claim of the right to habilitation, the Court
found he was entitled to “minimally adequate or reasonable training,” so as to prevent violence
and the need to use physical restraints in the future.200 The Court also highlighted the need to
balance the liberty interests of patients against states’ interests in “organized society,” and
instructed courts to do so by evaluating whether providers used professional judgment when
making care decisions.201 Finally, the Court acknowledged that care decisions made by an
“appropriate professional” are presumptively correct.202
The Rights to Receive or Refuse Treatment
As discussed, many states justify the involuntary hospitalization of their citizens through the well-
established concept of parens patriae, or the idea that the state serves as a protector of citizens
who are unable to care for themselves.203 States also rely upon the police power rationale to
protect citizens from dangerous persons.204 Using these rationales of providing care and treatment
to justify civil commitment, however, creates questions about the rights of confined individuals to
receive treatment,205 what kinds of treatment the state is obligated to provide, and whether a
person can refuse treatment. For example, some advocates have used the parens patriae theory to
argue that a right to treatment is recognized in the U.S. Constitution, arguing that to civilly
commit a person who is dangerous and unable to care for his or her mental health needs
necessarily requires the state to provide treatment.206 Similarly, advocates have argued that when
the state deprives a person of his or her liberty through involuntary confinement, due process

197 Id. at 315.
198 Id. at 315–16.
199 Id. at 316.
200 Id. at 319. Justices Blackmun, Brennan, and O’Connor concurred with the majority opinion but wrote separately to
express that “minimally adequate training” should include “such training as is reasonable necessary to prevent a
person’s pre-existing self-care skills from deteriorating because of his commitment.” Id. at 327. (Blackmun, J.,
concurring) (emphasis in original). The concurrence noted: “For many mentally retarded people, the difference between
the capacity to do things for themselves within an institution and total dependence on the institution for all of their
needs is as much liberty as they will ever know.” Id. On the other hand, Justice Burger, concurring only in the
judgment, wrote separately to emphasize his view that “respondent has no constitutional right to training, or
‘habilitation,’ per se.” Id. at 329 (Burger, J., concurring in the judgment). While Justice Burger agreed that some
amount of self-care instruction could be necessary, “the Constitution does not otherwise place an affirmative duty on
the State to provide any particularly kind of training or habilitation—even such as might be encompassed under the
essentially standardless rubric . . . to which the Court refers.” Id. at 330. See also discussion of habilitation at note 219.
201 Id. at 320–21 (internal citations omitted).
202 Id. at 324.
203 See supra “History of U.S. Laws Regarding Involuntary Civil Commitment.”
204 Id.
205 For purposes of this report, the term “treatment” is used to connote both medical treatment and training or other
rehabilitative treatment.
206 See, e.g., Hearings before the Subcomm. on Const. Rts. of the S. Comm. on the Judiciary on a Bill to Protect the
Constitutional Rights of the Mentally Ill, 88th Cong. 12 (1963) (statement of Sen. Sam Ervin).
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requires that the person be entitled to treatment.207 This section summarizes the various actions of
Congress, the Supreme Court, and other federal courts on the rights of civilly committed patients
to receive and refuse treatment.
It should be noted that inpatient treatment in a mental health facility is but one type of mental
health treatment that can encompass not only the administration of antipsychotic medications, but
can also include other types of behavioral therapies, which may help patients cope with their
illnesses, live more independently, and help them deal with the stresses of daily life.208 For
purposes of this report, “mental health treatment” is used generally to refer to all types of care and
treatment that patients receive while hospitalized.
The Right to Treatment
Congress, via the Ervin Act, intended for involuntarily committed patients in D.C. to have access
to medical and psychiatric care. Section 9(b) of the original Act stated: “Any person hospitalized
in a public hospital for a mental illness shall, during his hospitalization, be entitled to medical and
psychiatric care and treatment.”209 The Act also stated its purpose was “to protect the
constitutional rights of certain individuals who are mentally ill, [and] to provide for their care,
treatment and hospitalization.”210 At a Senate hearing in 1963, Senator Ervin emphasized that the
right to treatment for the civilly committed was “most critical,” stating that “[s]everal experts
advanced the opinion that to deprive a person of liberty on the basis that he is in need of
treatment, without supplying the needed treatment, is tantamount to a denial of due process.”211
In O’Connor v. Donaldson, the Supreme Court chose not to address whether the Constitution
affords involuntarily hospitalized patients the right to mental health treatment.212 In that case, the
petitioner suffered from paranoid schizophrenia and was involuntarily hospitalized for a number
of years before bringing a lawsuit to challenge his confinement.213 During his confinement,
petitioner did not receive any medical treatment for his condition, and his requests for
occupational training were denied.214 The appellate court observed “that when . . . the rationale
for confinement is that the patient is in need of treatment, the Constitution requires that minimally
adequate treatment in fact be provided,” holding that the Fourteenth Amendment guarantees a
patient’s right to treatment.215 The Supreme Court declined to address the issue of the patient’s
right to treatment, stating that “there is no reason now to decide whether mentally ill persons
dangerous to themselves or others have a right to treatment upon compulsory confinement.”216

207 See, e.g., Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974) (holding the Constitution guarantees a right to treatment
for the involuntarily hospitalized).
208 What is Mental Illness, AM. PSYCHIATRIC ASS’N, Nov. 2022, https://www.psychiatry.org/patients-families/what-is-
mental-illness. For more information on mental health treatments, see Mental Health Treatments, MENTAL HEALTH
AM., https://mhanational.org/mental-health-treatments (last accessed Mar. 7, 2023).
209 Hospitalization of the Mentally Ill Act, Pub. L. No. 88-597, 78 Stat. 944, 951 (1964) (codified as amended in
scattered sections of D.C. CODE §§ 21-, 32-).
210 Id. at 944.
211 Hearings before the Subcomm. on Const. Rts. of the S. Comm. on the Judiciary on a Bill to Protect the Const. Rts. of
the Mentally Ill, 88th Cong. 12 (1963) (statement of Sen. Sam Ervin).
212 422 U.S. 563 (1975).
213 Id. at 565.
214 Id. at 569.
215 Id. at 572.
216 Id. at 573.
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Instead, the Court found that because petitioner was not a danger to himself or others, the state
could not confine him solely on the basis that he suffered from a mental illness.217
Before O’Connor v. Donaldson was heard by the Supreme Court, the Fifth Circuit found, after
consideration as a matter of first impression, that the Fourteenth Amendment guaranteed the
civilly committed a right to treatment when the justification for the commitment was treatment.218
The Fifth Circuit again reaffirmed this finding in Wyatt v. Aderholdt, where it rejected a parens
patriae justification for commitment when the state argued that the “primary function of civil
commitment is to relieve the burden imposed upon the families and friends of the mentally
disabled.”219 However, after O’Connor and Wyatt were decided, other Fifth Circuit judges
expressed doubt as to whether the U.S. Constitution guarantees a right to treatment for
involuntarily hospitalized patients. For example, in Morales v. Turman, the Fifth Circuit argued:
“The civil commitment of the mentally ill without treatment is not necessarily an impermissible
exercise of governmental power,” and that arguments in favor of recognition of the Constitution’s
right to treatment “raise serious problems.”220
Other federal courts have considered and recognized the rights of involuntarily committed
patients to medical treatment under state and federal statutes, rather than in the U.S. Constitution.
For example, in Rouse v. Cameron, the D.C. Circuit interpreted the Ervin Act to address whether
a criminal defendant subject to involuntary civil commitment by reason of insanity has a right to
medical treatment.221 In recognizing the patient’s right to treatment, the court reasoned that “[t]he
purpose of involuntary hospitalization is treatment, not punishment,” and thus when the rationale
for confinement rests upon the necessity of treatment, the petitioner is essentially being jailed
without it.222 In making this holding, however, the court did not interpret the Constitution as
providing such a right, but rather noted that Congress sidestepped the constitutional question by
prescribing the right via the Act.223
The Right to Training or Other Rehabilitative Services
In addition to medical treatment, involuntarily hospitalized patients have also argued they have a
right to basic rehabilitation services to enable them to better undertake self-care, develop needed
skills, and reduce unwanted behaviors, like violence or aggression.224 The Supreme Court

217 Id. at 575.
218 Donaldson v. O’Connor, 493 F.2d 507, 510 (5th Cir. 1974), vacated by Gumanis v. Donaldson, 422 U.S. 1052
(1975).
219 Wyatt v. Aderholt, 503 F.2d 1305, 1312–13 (5th Cir. 1974) (“[W]e find it impossible to accept the Governor’s
underlying premise that the ‘need to care’ for the mentally ill—and to relieve their families, friends, or guardians of the
burdens of doing so—can supply a constitutional justification for civil commitment . . . . Against the sweeping personal
interests involved, Governor Wallace would have us weigh the state’s interest, and the interests of the friends and
families of the mentally handicapped in having private parties relieved of the ‘burden’ of caring for the mentally ill.
The state interest thus asserted may be, strictly speaking, a ‘rational’ state interest. But we find it so trivial beside the
major personal interests against which it is to be weighed that we cannot possibly accept it as a justification for the
deprivations of liberty involved.”)
220 562 F.2d 993, 998 (5th Cir. 1977). See also Morales v. Thurman, 383 F. Supp. 53 (E.D. Tex. 1974) (recognizing the
right to treatment under the U.S. Constitution for patients subject to involuntary hospitalization), rev’d, 535 F.2d 864
(5th Cir. 1976).
221 Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966).
222 Id. at 452–53.
223 Id.
224 See, e.g., Youngberg v. Romeo, 457 U.S. 307 (1982); Brief of the Am. Psychiatric Ass’n as Amicus Curiae,
Youngberg, 457 U.S. at 307, No. 80-1429, 1981 WL 389867. As explained in the brief, the terms “treatment” and
(continued...)
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discussed mentally ill patients’ rights to such services in Youngberg v. Romeo, but the Justices
reached different conclusions as to whether the Constitution protects such rights.225 As discussed,
the Youngberg Court found that an involuntarily committed patient had a constitutionally
protected liberty interest under the Fourteenth Amendment that guaranteed him the right to
“minimally adequate or reasonable training to ensure safety and freedom from undue restraint.”226
In other words, the Court recognized the patient’s right to “minimally adequate” training only
insofar as such training is reasonably necessary to protect the patient’s other rights to safety in
confinement and freedom from restraint.227 As part of its analysis, the Court recognized that while
the state has a certain duty of care to institutionalized persons, it has “considerable discretion in
determining the nature and scope of its responsibilities.”228 The Court’s decision attempts to
balance the state’s interests against those of the involuntarily committed, stating that in
determining what training is “reasonable,” courts should defer to the judgment of qualified
professionals.229
Justices Harry Blackmun, William Brennan, and Sandra Day O’Connor wrote a concurring
opinion in Youngberg, arguing that the Court did not resolve the issue of whether a state could
involuntarily confine a person for “care and treatment” under state law, but then “constitutionally
refuse to provide him any treatment.”230 The concurrence cited the Court’s earlier, unanimous
holding in Jackson v. Indiana, finding that “due process requires that the nature and duration of
commitment bear some reasonable relation to the purpose for which the individual is
committed.”231 The Justices then reasoned, similar to Senator Ervin’s argument discussed above,
that if the state involuntarily committed a person for care and treatment, the commitment would
not be reasonably related to the purpose of confinement if the state did not provide treatment.232
The three concurring Justices also argued that the majority’s requirement of “minimally adequate
training” should include training that is necessary to prevent a deterioration of skills as the result
of a confinement.233 For example, if a committed patient is able to feed or dress himself prior to
confinement, he should be provided training, if needed, during his confinement to ensure he
retains those skills.234 The concurrence observed that for patients with mental illness, “the
difference between the capacity to do things for themselves within an institution and total
dependence on the institution for all of their needs is as much liberty as they will ever know.”235
In a concurrence with the judgment, Chief Justice Warren Burger disagreed with Justices
Blackmun, Brennan, and O’Connor, arguing he “would hold flatly that respondent has no
constitutional right to training . . . per se.”236 The Chief Justice noted that the patient’s family

“habilitation” can both be used to refer to programs to assist patients with mental illness, but “habilitation” is often
focused on training and skill development.
225 457 U.S. at 307.
226 Id. at 319.
227 Id. at 318, 322.
228 Id. at 317 (internal citations omitted). In the Youngberg case, the state conceded it had duties to provide adequate
shelter, food, clothing, and medical care to residents of the mental institution; the Court observed these were “the
essentials of the care that the state must provide.” Id. at 324.
229 Id. at 322.
230 Id. at 325 (Blackmun, Brennan & O’Connor, JJ., concurring).
231 Id. (citing Jackson v. Indiana, 406 U.S. 715 (1972)).
232 Id. at 326.
233 Id. at 327.
234 Id.
235 Id.
236 Id. at 329 (Burger, J., concurring in the judgment).
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requested his institutionalization “to meet a serious need,” and felt the state was satisfying its
responsibilities to the patient by providing food, shelter, safe conditions, and medical care, thus
justifying the patient’s hospitalization.237 In his view, “the Constitution does not otherwise place
an affirmative duty on the State to provide any particular kind of training or habilitation.”238
The Right to Refuse Medical Treatment
In addition to outlining the constitutional parameters protecting the right of the civilly committed
to receive medical treatment or rehabilitative services, courts have also considered the protected
rights of these patients to refuse medical treatment. In 1982, the Supreme Court decided Mills v.
Rogers, in which it considered whether a class of involuntarily committed patients had a
constitutionally protected right to refuse antipsychotic medication.239 The district court held in the
patients’ favor on the basis that the Constitution protected their privacy and liberty interests.240
The district court noted that although subject to involuntary confinement, the patients had not
been found incompetent under state law, thus they could refuse psychiatric medication.241 The
First Circuit agreed that involuntarily hospitalized patients had a right to refuse drug treatment,
but it disagreed with the district court with regard to the circumstances under which the state’s
interest in forced drug treatment would outweigh the patients’ interests.242
In deciding Mills, the Supreme Court discussed both substantive and procedural aspects of the
rights of patients who are forced to take psychiatric medication, noting that both were
“intertwined with questions of state law.”243 The Court explained that the U.S. Constitution
defines the minimum protections for substantive rights, which can be supplemented by states, and
that liberty interests created by state law receive protection from the Fourteenth Amendment’s
Due Process Clause.244 In this way, questions of a patient’s right to refuse medical treatment could
be tied to both state and federal law.245 To illustrate this point, the Court cited a recent

237 Id.
238 Id.
239 Mills v. Rogers, 457 U.S. 291 (1982).
240 See Cong. Rsch. Serv., supra note 49.
241 Mills, 457 U.S. at 294–95. The district court did not identify a particular provision of the U.S. Constitution as
protective of the patients’ rights to privacy and liberty. The district court’s ruling distinguished involuntary
confinement from an order of incompetency, finding that when a patient was involuntarily confined for mental health
treatment, this did not infer incompetency under Massachusetts law. The court concluded that “until a judicial finding
of incompetency has bene made . . . the wishes of the patients generally must be respected.” Rogers v. Okin, 478 F.
Supp. 1352, 1361–62, 1365–68 (D. Mass 1979), aff’d in part, rev’d in part, 634 F.2d 650 (1st Cir. 1980), vacated,
Mills, 457 U.S. at 291.
242 Mills, 457 U.S. at 295–96 (citing Rogers, 634 F.2d at 650). The First Circuit found that the state police power to
maintain order and provide safety and the parens patriae power to provide effective treatment were strong state
interests which outweighed the possibility of harm to the patients if forcibly medicated. Id. at 296.
243 Id. at 298–99. For purposes of its decision, the Court assumed the Constitution protects the right of mentally ill
patients to refuse antipsychotic drug treatment. Id. at 299. The procedural question at issue concerned what procedures
were constitutionally required before the state could forcibly medicate a patient. Id. The substantive questions were
what aspect(s) of the Constitution protected the patients’ liberty interest, and when the state’s interests would outweigh
the patients’. Id. Only the Court’s findings with respect to the substantive legal issues are discussed here.
244 Id. at 300. See, e.g., Vitek v. Jones, 445 U.S. 480, 488 (1980).
245 Mills, 457 U.S. at 300 (“Because state-created liberty interests are entitled to the protection of the federal Due
Process Clause, the full scope of a patient’s due process rights may depend in part on the substantive liberty interests
created by state as well as federal law. Moreover, a State may confer procedural protections of liberty interests that
extend beyond those minimally required by the Constitution of the United States. If a State does so, the minimal
requirements of the Federal Constitution would not be controlling, and would not need to be identified in order to
determine the legal rights and duties of persons within that State.”).
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Massachusetts state court decision, In re Guardianship of Roe, which recognized the rights of
incompetent patients to refuse antipsychotic drugs, which the state court said could be overridden
“only by an overwhelming state interest.”246 Applying the logic of Roe, the Supreme Court
observed: “[I]t is distinctly possible that Massachusetts recognizes liberty interests of persons
adjudged incompetent that are broader than those protected directly by the Constitution of the
United States.”247 In remanding to the First Circuit, the Court stated: “[u]ntil certain questions
have been answered, we think it would be inappropriate for us to attempt to weigh or even
identify relevant liberty interests that might be derived directly from the Constitution,
independently of state law.”248 The Court reasoned that in light of Roe, it was unclear whether the
delineation of the patients’ Fourteenth Amendment interests would resolve the case.249
The First Circuit’s decision on remand was limited to the rights afforded to mentally ill patients
under the Fourteenth Amendment’s Due Process Clause.250 The court acknowledged that
“Massachusetts recognizes substantive and procedural rights that extend above the floor set by
the due process clause of the Fourteenth Amendment,”251 and that under state law, a patient could
be forcibly medicated only “if [he] poses an imminent threat of harm to himself or others, and
only if there is no less intrusive alternative to antipsychotic drugs.”252 The First Circuit then
decided that although it could delineate the minimum constitutional standards afforded to
mentally ill patients, it need not do so because Massachusetts law offered more protection than
the Fourteenth Amendment.253
Since Mills v. Rogers was decided, the Supreme Court has not directly addressed the issue of
whether and under what conditions a state could force a noncriminal, involuntarily hospitalized
patient to take antipsychotic drugs. It appears from the Court’s decision in Mills that a patient’s
constitutionally protected liberty interest is implicated by forced medication.254 It remains unclear,
however, how that interest is defined and the extent to which it could be outweighed by a
competing state interest.
The Supreme Court has also discussed the rights of individuals to refuse medical treatment in
other contexts. For example, the Court recognized in Cruzan v. Director that “a competent person

246 Id. at 300–01 (citing 421 N.E.2d 40, 51 (Mass. 1981)). In Roe, the Massachusetts court rested its recognition of the
right to refuse treatment in both the U.S. Constitution as well as the state common law. Id. at 42.
247 Mills, 457 U.S. at 303.
248 Id. at 305.
249 Id. at 306. The Court instructed the court of appeals to “determine . . . whether Roe requires revision of its holdings
or whether it may call for the certification of potentially dispositive state-law questions to the Supreme Judicial Court
of Massachusetts. The Court of Appeals also may consider whether this is a case in which abstention is now
appropriate.” Id. (internal citations omitted).
250 Rogers v. Okin, 738 F.2d 1, 3 (1st Cir. 1984). The First Circuit’s holding was limited to this question due to the
Supreme Court’s ruling in Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984), in which the Court held
the Eleventh Amendment barred federal courts from awarding injunctive relief ordering state officials to comply with
state law.
251 Rogers, 738 F.2d at 3.
252 Id. at 3, 6 (internal citations omitted). The First Circuit noted that with respect to the substantive and procedural
rights afforded to the patients by Massachusetts state law, under the Supreme Court’s decision in Pennhurst, those
rights “are no longer directly enforceable by federal courts in injunctive actions against state officials.” Id. at 3–4.
253 Id. at 9.
254 The Mills Court observed: “The parties agree that the Constitution recognizes a liberty interest in avoiding the
unwanted administration of antipsychotic drugs. Assuming that they are correct in this respect, the substantive issue
involves a definition of that protected constitutional interest, as well as the identification of the conditions under which
competing state interests might outweigh it.” 457 U.S. at 299.
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has a liberty interest under the Due Process Clause in refusing unwanted medical treatment.”255
And the Court held in Washington v. Harper that a federal prisoner with SMI had a “significant
liberty interest” under the Fourteenth Amendment’s Due Process Clause when the state attempted
to forcibly medicate him.256 Although neither of these cases addresses the specific issue of the
right of an involuntarily hospitalized patient to refuse medical treatment, each offers insight into
the limitations that the Due Process Clause places on a state’s ability to force a person with SMI
to take antipsychotic medication and when the state’s interests override those of the patient.
Other federal circuit courts have considered the circumstances under which a state may forcibly
medicate an involuntarily hospitalized patient. For example, in Rennie v. Klein, the Supreme
Court directed the Third Circuit to consider the issue in light of its holding in Youngberg v.
Romeo.257 The Third Circuit recognized that the mentally ill patient at issue had a constitutionally
protected liberty interest in refusing mental health treatment.258 Under New Jersey law, the state
could compel an institutionalized patient to take medication only if the person, “in the exercise of
professional judgment,” “constitute[d] a danger to himself or to others.”259 The court then found
that the state placed sufficient procedural safeguards to protect patients’ rights.260 In a
concurrence, one judge expressed his disagreement with the majority’s holding, arguing that the
issue before the court was whether the appropriate “professional judgment” from Youngberg was
followed. The concurring judge argued that states justify involuntary commitment on the basis
that the patient is a danger to self or others, so the state using the same precondition for
involuntary hospitalization and forced medication “would not appear to conform to the
constitutional professional judgment standard.”261
Considerations for Congress
There is ongoing scholarly debate over the use of forced institutionalization for patients with
SMI, with some advocates claiming that such hospitalizations are helpful for vulnerable
populations, such as unhoused people, and others arguing they actually cause more harm than

255 497 U.S. 261, 262 (1990). In Cruzan, the Court considered the rights of an incompetent patient and her surrogate to
terminate her nutrition and hydration supplements after a car accident left her in a “persistent vegetative state.” Id. at
266. The case concerned a state law that required clear and convincing evidence of a patient’s wishes to decline
lifesaving treatment. Id. at 261. The Court recognized the Fourteenth Amendment’s Due Process Clause protects the
interests of competent individuals not to be forced to undergo unwanted medical treatment, but held that the Due
Process Clause did not prevent the state from establishing a procedural requirement of clear and convincing evidence of
a patient’s wishes prior to declining treatment. Id. at 278–80. After recognizing the individual’s liberty interest in
refusing unwanted treatment, the Court stated that the individual interest must be balanced against the state’s interest in
protecting life, finding the state interest more compelling. Id. at 281.
256 494 U.S. 210, 221–22 (1990). The Court decided the case in the same term as Cruzan. In Harper, a federal inmate
challenged a state correctional facility’s attempt to forcibly treat his mental illness with antipsychotic medication,
arguing that it violated his rights under the Due Process Clause. Id. at 221. Under a state policy, a prisoner could be
forcibly medicated if he had a mental disorder and was gravely disabled or posed a serious threat of harm to himself,
others, or property. Id. at 215. The Court recognized that the prisoner had a significant liberty interest in refusing
medication, but it applied an earlier, deferential standard for considering a state’s interest in prison safety, finding that
“the proper standard for determining the validity of a prison regulation that infringes on an inmate’s liberty is to ask if
the regulation is ‘reasonably related to legitimate penological interest.’” Id. at 223. Under this standard, the Court
reasoned that the prison had the duty to ensure the safety of its staff and other prisoners, and that forcibly medicating
dangerous inmates was a rational means of furthering the state’s interest in maintaining safety. Id. at 225.
257 Rennie v. Klein, 720 F.2d 266 (3d Cir. 1983).
258 Id. at 268 (citing Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981) (en banc), vacated, 458 U.S. 1119 (1982)).
259 Rennie, 720 F.2d at 269.
260 Id. at 270.
261 Id. at 272 (Adams & Becker, JJ., concurring in the judgment).
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good and deter individuals with SMI from seeking care.262 Stakeholders continue to advocate for
the rights of those involuntarily committed, arguing that states require additional resources to
treat patients with SMI and provide them with better care.263 Others have suggested that the
United States should instead curb Medicaid and other federal health care spending, arguing that it
is increasing federal government debt.264
More recently, patient advocates, several Members of Congress, and the White House have
stressed the need for increased outpatient mental health services to be available for both children
and adults, many of whom are unable to access those services posthospitalization.265 Others have
called attention to the national shortage of mental and behavioral health professionals.266
While Congress does not directly control the processes and procedures governing involuntary
civil commitment, as this is traditionally an area left to state law, Congress could influence state
standards indirectly in a variety of ways. Congress could expand existing federal statutes that
provide rights to institutionalized patients who are housed in facilities that receive federal
funding. For example, Congress could create additional rights for children and youth facility
residents, as outlined in the CHA, which currently recognizes “the right to be free from physical
or mental abuse, corporal punishment, and any restraints or involuntary seclusions imposed for
purposes of discipline or convenience.”267 Congress could also expand SAMHSA’s authority in
the Act to promulgate regulations ensuring that facilities have adequate, professional staff who
are properly trained and/or could give SAMHSA more enforcement authority to police mental
health facilities.
Congress could also indirectly influence the civil commitment process by increasing federal
protections for individuals with SMI through legislation providing greater, more accessible care
for institutionalized patients. For example, patients’ rights advocates have urged Congress to do

262 Compare Maya Kaufman, Democratic Mayors Lead Course Correction on Psychiatric Commitments, POLITICO,
Mar. 1, 2023, https://www.politico.com/news/2023/03/01/democratic-mayors-lead-course-correction-on-psychiatric-
commitments-00084387, with Andy Newman, Advocates for Mentally Ill New Yorkers Ask Court to Halt Removal
Plan, N.Y. TIMES, Dec. 9, 2022, https://www.nytimes.com/2022/12/08/nyregion/nyc-mental-health-restraining-
order.html. See also Betsy Reed, I was Hospitalized Against My Will. I Know Firsthand the Harm it can Cause, THE
GUARDIAN, Dec. 23, 2022, https://www.theguardian.com/society/2022/dec/23/involuntary-hospitalization-policy-new-
york-city-eric-adams; Morgan C. Shields, et al., Expanding Civil Commitment Laws is Bad Mental Health Policy,
HEALTH AFFAIRS, Apr. 6, 2018, https://www.healthaffairs.org/content/forefront/expanding-civil-commitment-laws-bad-
mental-health-policy.
263 E.g., Advocacy, TREATMENT ADVOC. CTR., https://www.treatmentadvocacycenter.org/fixing-the-system (last
accessed Mar. 24, 2023).
264 Maya MacGuineas, How Medicare, Medicaid, and Social Security are Driving the National Debt – and How We
Can Fix It, GEORGE W. BUSH INSTITUTE (2020), https://www.bushcenter.org/catalyst/federal-debt/macguineas-
medicaid-medicare-social-security-national-debt.
265 Dan Frosch, More Money for Mental Health Programs Gets Bipartisan Support in Many States, WALL STREET
JOURNAL, (Feb. 5, 2023), https://www.wsj.com/articles/more-money-for-mental-health-programs-gets-bipartisan-
support-in-many-states-11675614344; Press Release, Office of Sen. Tina Smith, U.S. Senators Smith, Murkowski,
Hassan Reintroduce Bipartisan Bill to Expand Mental Health Care Workforce (Feb. 23, 2023),
https://www.smith.senate.gov/u-s-senators-smith-murkowski-hassan-reintroduce-bipartisan-bill-to-expand-mental-
health-care-workforce/. The bill was introduced in the 117th Congress as the Mental Health Professionals Workforce
Shortage Loan Repayment Act of 2021, S. 1578, 117th Cong. (2021) and H.R. 3150, 117th Cong. (2021), and then
reintroduced as S.462, 118th Cong. (2023). GOVERNMENT ACCOUNTABILITY OFFICE, Behavioral Health: Available
Workforce Information and Federal Actions to Help Recruit and Retain Providers (Oct. 27, 2022),
https://www.gao.gov/products/gao-23-105250; The White House, Reducing the Economic Burden of Unmet Mental
Health Needs, Issue Brief (May 31, 2022), https://www.whitehouse.gov/cea/written-materials/2022/05/31/reducing-the-
economic-burden-of-unmet-mental-health-needs/.
266 See, e.g., St. George, supra note 8.
267 42 U.S.C. §§ 290ii(a), 290jj(a)(1).
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away with the current “institutions for mental disease” or “IMD” exclusion so that Medicaid
funds may be more easily used to provide institutionalized care for nongeriatric adults.268 Other
advocacy groups have resisted a repeal of the IMD exclusion, saying that it “would do more harm
than good” and would divert state resources to institutionalization and away from services that
keep patients with SMI in their communities.269

Author Information

Hannah-Alise Rogers

Legislative Attorney

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268 See, e.g., TREATMENT ADVOC. CTR., THE MEDICAID IMD EXCLUSION AND MENTAL ILLNESS DISCRIMINATION (2016),
https://www.treatmentadvocacycenter.org/evidence-and-research/learn-more-about/3952.
269 See, e.g., Hannah Katch, House Bill Partially Repealing “IMD Exclusion” Would Do More Harm Than Good,
CENTER ON BUDGET AND POLICY PRIORITIES, (Jun. 20, 2018), https://www.cbpp.org/blog/house-bill-partially-repealing-
imd-exclusion-would-do-more-harm-than-good.; CENTER FOR PUBLIC REPRESENTATION, Institutions for Mental
Diseases Exclusion, available at https://medicaid.publicrep.org/feature/institutions-for-mental-diseases-exclusion/ (last
accessed May 22, 2023).
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