Starcher, Justice, concurring:
. . . mental illness renders them incapable of making informed
medication decisions and makes it substantially probable that,
without treatment, disability or deterioration will result, bringing
on a loss of ability to provide self-care or control thoughts or
actions. It allows the state to intervene with care and treatment
before the deterioration reaches an acute stage, thereby
preventing the otherwise substantially probable and harmful loss
of ability to function independently or loss of cognitive or
volitional control. There is a rational basis for distinguishing
between a mentally ill person who retains the capacity to make
an informed decision about medication or treatment and one
who lacks such capacity. The latter is helpless, by virtue of an
inability to choose medication or treatment, to avoid the harm
associated with the deteriorating condition.
“The state has a legitimate interest under its parens patriae
powers in providing care to its citizens who are unable to care
for themselves.” Addington v. Texas, 441 U.S. 418, 426 (1979).
The state also has “authority under its police power to protect
the community” from any dangerous mentally ill persons.
Heller, 509 U.S. at 332, 113 S.Ct. 2637 (citing Addington, 441
U.S. at 426, 99 S.Ct. 1804). The state's legitimate interest
ceases to exist, however, if those sought to be confined “are not
mentally ill or if they do not pose some danger to themselves or
others.” Addington, 441 U.S. at 426, 99 S.Ct. 1804 (emphasis
added).
I write separately to call attention to an important decision of Wisconsin's
highest court, In re the Commitment of Dennis H., 255 Wis.2d 359, 647 N.W.2d 851 (2002),
in which case the court's opinion discusses issues and principles that are significantly related
to the “mental hygiene” issues in the instant case, and that should inform our future
jurisprudence in this area.
Specifically, Dennis H. contains an up-to-date discussion of a number of
constitutional issues that are often involved in considering statutes that govern when the state
takes action to assure treatment for people who have severe mental illnesses, as applied to
Wisconsin's statutory “fifth standard” for state action, which applies when a person's
255 Wis. at ___, 647 N.W.2d at 861-862.
The Dennis H. opinion states:
“[E]ven if there is no foreseeable risk of self-injury or suicide,
a person is literally 'dangerous to himself' if for physical or
other reasons he is helpless to avoid the hazards of freedom
either through his own efforts or with the aid of willing family
members or friends.” O'Connor v. Donaldson, 422 U.S. 563,
574, n.9, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (emphasis
added). Substantive due process has not been held to require
proof of imminent physical dangerousness to self or others as a
necessary prerequisite to involuntary commitment.
It is well-established that the state “cannot constitutionally
confine without more a nondangerous individual who is capable
of surviving safely in freedom by himself or with the help of
willing and responsible family members or friends.” Id. at 576,
95 S.Ct. 2486; see also Foucha v. Louisiana, 504 U.S. 71, 78,
112 S.Ct. 1280, 118 L.Ed.2d 437 (1992) (involuntary mental
health commitment is improper absent a determination of
current mental illness and dangerousness). This does not mean,
however, that substantive due process requires the state to
restrict the scope of its mental health commitment statutes to
only those individuals who are imminently physically
dangerous. There is no “single definition that must be used as
the mental condition sufficient for involuntary mental
commitments.” Post, 197 Wis. 2d at 304, 541 N.W.2d 115. In
this complicated and difficult area, the Supreme Court “has
wisely left the job of creating statutory definitions to the
legislators who draft state laws.” Id.
The fifth standard permits commitment only when a mentally
ill person needs care or treatment to prevent deterioration but is
unable to make an informed choice to accept it. This must be
“demonstrated by both the individual's treatment history” and by
the person's “recent acts or omissions.” Wis. Stat. §
51.20(1)(a)2.e. It must also be substantially probable that if left
untreated, the person “will suffer severe mental, emotional or
physical harm” resulting in the loss of the “ability to function
independently in the community” or in the loss of “cognitive or
volitional control.” Id. Only then may the individual be found
“dangerous” under the fifth standard.
The fifth standard thus fits easily within the O'Connor
formulation: even absent a requirement of obvious physical
harm such as self-injury or suicide, a person may still be
“dangerous to himself” if “he is helpless to avoid the hazards of
freedom either through his own efforts or with the aid of willing
family members or friends.” O'Connor, 422 U.S. at 574, n.9, 95
S.Ct. 2486.
Moreover, by requiring dangerousness to be evidenced by a
person's treatment history along with his or her recent acts or
omissions, the fifth standard focuses on those who have been in
treatment before and yet remain at risk of severe harm, i.e.,
those who are chronically mentally ill and drop out of therapy or
discontinue medication, giving rise to a substantial probability
of a deterioration in condition to the point of inability to
function independently or control thoughts or actions. See
Darold A. Treffert, The MacArthur Coercion Studies: A
Wisconsin Perspective, 82 Marq. L. Rev. 759, 780 (1999). The
statute represents the fruition of the efforts of the Wisconsin
State Medical Society and the Alliance for the Mentally Ill,
professional organizations which recognized a need for a law
that could be applied to those victims of mental illness who fell
through the cracks under the old statutory scheme. See id.
Consistent with the approach approved by the Wisconsin court, our Legislature
in 2001 modified the language of our mental hygiene statute to specifically authorize
hospitalization and treatment under our mental hygiene system if a person's mental illness
has resulted in conditions such that serious physical or mental debilitation will ensue “unless
adequate treatment is afforded.” W.Va. Code, 27-1-12 [2001] (emphasis added).
Science's understanding of the physical and biological aspects of brain
disorders is growing by leaps and bounds. Our law must keep pace, and assure that the stigma attached to “mental” illness, that has hampered equal treatment
in the past, is erased.
(See footnote 1) West
Virginia's explicit adoption of a “need-for-treatment”-based standard,
like the standard discussed in the Dennis H. opinion, is particularly
important and timely in light of the current medical consensus that injuries
to brain function from severe, untreated episodes of acute mental illness
are long-lasting and may be permanent. No one should have to suffer permanent
brain injury because of archaic distinctions between mental and physical illnesses.
Roughly two out of every one hundred persons will suffer from one of the two
most serious brain disorders, bipolar disorder or schizophrenia, during their lifetime; in most
cases, the illness is chronic. Thanks to medications and other treatments that have been
introduced in the past fifty years (and even better ones are in the works), the large majority
of people with these illnesses can manage the symptoms of these illnesses sufficiently to live
safely and productively outside of hospital or other institutional settings.
However, it is a fact in every society that substantial number of persons who
have been diagnosed as having these serious brain disorders _ and this includes thousands
of West Virginians _ have difficulty sustaining compliance with prescribed treatment and medication regimes. See generally, “I'm Not Sick _ I Don't
Need Help: Helping the Seriously Mentally Ill Accept Treatment -- a Practical
Guide for Families and Therapists,” Xavier F. Amador and Anna-Lica
Johanson, Vida Press (2000). (See footnote 2)
The reasons for a person's “non-compliance” with prescribed treatment and
medication are usually overlapping and multifaceted. Many people - certainly not just
people who have brain disorders - do not take prescribed medications or otherwise fully
comply with their doctor's treatment recommendations. Medications and treatments may
have undesirable side effects, and/or may be costly or unavailable. A person who is feeling
okay while taking medication may be tempted to stop, in hopes that severe symptoms will
not recur. Medical and social support that can help people comply with prescribed treatment
regimes is often woefully lacking.
Additionally, experts estimate that many people who suffer from serious brain
disorders - some say up to 50% - have, as a neurologically-based component of their illness,
a lack of insight into the very fact they have an illness. (Clinically, this lack of insight is
called “anosognosia.”)
Obviously, if not appreciating that one has an illness is part of one's clinical
symptomatic picture, sustained medication and treatment compliance can be difficult, especially if the patient's family or other social support system is not
strong - a condition that describes far too many people. And of course, if
an individual with a mental illness starts moving into significant delusion
or psychosis, they are further deprived of their reasoning ability. (See footnote 3)
Therefore, although there are treatments and medications that in most cases
could prevent the need for many hospitalizations, once a person's illness has been correctly
diagnosed and treatment prescribed, in fact “revolving-door,” recurring/repeat
hospitalizations of persons with serious, chronic mental illnesses _ for short-term treatment,
to treat and alleviate acute symptoms like psychosis _ are a fact of life in every industrialized
nation. And in West Virginia, it is ordinarily in our mental hygiene system in which these
recurring, short-term hospitalizations are authorized.
It is important to realize that for a number of seriously ill patients who may in
fact be willing to accept hospitalization for treatment, the “involuntary hospitalization”
process that is the core of the mental hygiene system is nevertheless utilized _ precisely
because our state psychiatric hospital system is so overstressed that they cannot accept a
voluntary admission patient. And many people, deplorably, have no health insurance that
would allow them to enter a private hospital.
Where there are comprehensive, community-based, assertive treatment programs, no doubt many hospitalizations for acute episodes of mental illness could be avoided. But such programs are costly and regrettably not to be found everywhere. And importantly, a lack of community services is in no way a reason or excuse for denying to ill people who are in crisis the treatment that they need _ in hospitals, if that is the treatment that is available.
In West Virginia, I believe that our doctors, psychologists, social workers, law
enforcement, courts, hospitals, and judiciary are trying to do the best they can, using the
mental hygiene system, to get treatment to people who need it in a constitutional and
therapeutic way.
To reiterate: as a society, we should ideally minimize the need for mental
hygiene proceedings to get effective treatment for people with mental illnesses. But when
we use these procedures _ because they are what we have _ they must be as fair and humane
as possible _ and available to all. The Court's opinion in the instant case takes this approach,
holding that the status of being a pre-trial detainee does not deny to a person the same right
to treatment that others have; and it reaches that result by applying clear principles of law.
Accordingly, I concur.