Will Forcing People Into Mental Health Treatment Help Them?

Editor’s note: This story is part of Governing’s ongoing Q&A series “In the Weeds.” The series features experts whose knowledge can provide new insights and solutions for state and local government officials across the country. Have an expert you think should be featured? Email Web Editor Natalie Delgadillo at ndelgadillo@governing.com.

There are growing numbers of individuals living on the streets. Some, although not all of them, suffer from mental illness. Among people who are housed, serious mental conditions including depression are on the rise.

In this atmosphere, more public officials are calling for an increase in the use of involuntary confinement — forcing people into institutional settings to receive treatment.

“I’m willing to stand up and say we need to expand involuntary commitment into a hospital to include someone who does not possess the mental capacity to care for themselves,” New York Democratic Gov. Kathy Hochul said during her State of the State address last month. “This is about having the humanity and the compassion to help people incapable of helping themselves.”

In 2023, California enacted a law to make it easier to force people into treatment against their will. Last year, Democratic Gov. Gavin Newsom convinced voters to approve $6.4 billion in bonds for mental health facilities and supportive housing. “The mental health crisis affects us all, and people who need the most help have been too often overlooked,” Newsom said. “We are working to ensure no one falls through the cracks, and that people get the help they need and the respect they deserve.”

Every state allows involuntary confinement, but typically only for limited periods of time — usually 24 to 72 hours. Forcing individuals into treatment for more extended periods represents a change from decades of prior practice.

“In the ’70s, civil libertarians won the battle,” says Christopher Slobogin, a professor of law and psychiatry at Vanderbilt University. “They said, 'people’s autonomy should be protected.'”

Slobogin has won numerous awards for his scholarship on mental health law. Governing spoke with him about the pros and cons of involuntary confinement, its potential effectiveness and the long debate over its use. An edited transcript of that interview follows.

Governing: Why do states currently use short holds — is that basically just a cooling off period to get a person out of the immediate moment of crisis?

Slobogin: No, it’s because they can't get the judicial process up and running within 20 minutes or two hours or three hours. They want to make sure they have the judge and the lawyers available to have the hearing. If you can do it in the criminal process, it's presumably okay in the civil commitment process as well.

The other reason for the hold is to allow time for an evaluation — not so much a cooling off period, but an evaluation to see if the person really is mentally ill, and get at least a preliminary sense of what treatments might work. It's conceivable even that they can administer treatment. That's not likely but it could happen, because certainly these days with anti-psychotic medications, the turnaround can be pretty quick.

Why are lawmakers talking about expanding the length of time for enforced treatment?

It's been going on now for 15 years, maybe even longer, that states have been looking into what could be called a predicted deterioration standard. I mean, it's been going on for a while. But when New York and California do something, everybody pays attention.

So I'll back up a second and explain that up until around the early 1970s you could commit a person simply if they needed treatment, if a psychiatrist thought the person was mentally ill and needed treatment. That was true in many states — not all states, but in most states, it was pretty easy to commit someone. The legal standards were very lax then.

But beginning in the 1970s — sort of on the heels of the civil rights movement for people of color, courts started saying, “You know what? That's too relaxed. We need to tighten up the commitment standards.” And most courts settled on the idea that you cannot commit someone unless they were imminently dangerous to their self or others. In other words, are you suicidal or do you pose a risk of hurting someone else? And it has to be imminent.

Then, partly as a result of the psychiatry lobby, but also relatives, the feeling was, “No, this isn't capturing everybody. There are certain people who are not imminently suicidal, are not imminently threatening other people, but they're on the way to deteriorating. We don't want to wait until they have deteriorated. We want to get them earlier.” And so a number of states started expanding the criteria. And that's where we are right now. 

Do you think this is being driven more by perceptions of public safety or concern for the individuals who are suffering?

I think Newsom is genuinely worried about public safety — not just public safety, but also about caring for these people who aren't going to hurt anybody else but are decompensating on the streets. I mean, you've seen the tents in L.A. and New York and I think that's part of it. There’s a lot of pressure from people who don't like walking by tent cities and who may feel threatened by them.

One way of possibly resolving it is by treating those people — who are living in tents because they're mentally ill and therefore can't hold down a job, can barely scrape by on a daily basis — but with medication or some other kind of treatment that could do much better.

There are already shortages of mental health professionals. I’m sure this varies by state, but what sort of capacity is there if we are deciding to shift the balance toward taking away freedom from people who are severely mentally ill. Will that be for their own good and will they get treatment?

We'll find out. In some cases, it's definitely going to make everything better. In other cases, where the person just doesn't think they're sick, and they actually prefer living on this street, they're just going to stop taking their meds once they're out, so it may not do any good. As I said, there are new medications that are better than the old ones, that don't have as many side effects, that act more quickly, so maybe they'll be better off.

You can't just take someone off the streets as mentally ill unless they're also incompetent to make treatment decisions. Now, incompetence itself is a very fraught word, but there are standards. For instance, if a person is saying, "I don't want medication because I don't like the side effects," they're competent. If they're saying, "I don't want medication because my head will explode," they're incompetent. If they're mentally ill, you’ve got to show that they don't have the autonomy to make decisions for themselves.

It's not hard to imagine a kind of a revolving door where people are forced to go in but then come right back out and have the same problems.

Oh yeah — for a lot of these people, their whole life is going to be this. And so civil attorneys said, “Until they threaten to kill somebody, just leave them alone. Let them live in a tent. Let them decompensate.” Other people, sometimes their relatives, will say that's ridiculous. We need to get them some help.

But obviously one problem here is that a lot of these people don't have relatives that have any money, don't have insurance, and that's another reason the state wants a quick turnaround: They're going to get no money out of this. It's totally a dead loss financially.