Jesse: Previously on Committable.
Cassidy: They eventually said that they had to hold me, and this was extremely distressing to me because the thing that I had said, like cited as traumatic during the call with the counselor, was an experience on a psychiatric ward. And now I was being like sentenced that I was going to be held in a psychiatric ward again.
So, like the exact like environment that I had said was traumatic that I didn't wanna be in. I told them like, this is like the worst possible thing that you can do for me. It's very, very gray what your rights are, and I think that's in part intentional, cuz if you don't know what your rights are the more they can get away with.
Like, I was very frustrated by it cuz I'm like this isn't about care. This is about you guys protecting yourself from liability.
Jesse: The first time I was detained for evaluation, it felt like having a foundational illusion of security torn out from under me. All I had done was ask for help. The clinician acknowledged that they didn't think I was suicidal, but told me and my family that I had to be strapped into a gurney and transported to an unnamed facility for insurance reasons.
I have spent over 20 years trying to tiptoe through society while every moment, of every day, in the back of my mind is the very real fear that nothing in the laws has really changed. It would be just as easy and just as legally acceptable for someone to detain me like that again. So why aren't we talking about this more?
Why isn't this viewed as a civil liberties issue?
Molly Linhorst: Generally speaking, civil commitment raises serious Liberty issues, which are foundational to our constitutional rights.
Jesse: This is Molly Linhorst.
Molly Linhorst: My name's Molly Linhorst, I'm a staff attorney at the American Civil Liberties Union of New Jersey. I've been there for a couple years and I actually primarily work on immigrants rights issues, but broadly speaking all of us at ACLU New Jersey work on a lot of different things and much of our work comes from constitutional rights and advancing individual rights, generally speaking.
Jesse: So civil commitments, the process changes from state to state but broadly speaking, in what ways might involuntary civil commitment be considered a civil liberties issue?
Molly Linhorst: So in a lot of ways, right? Generally speaking, civil commitment raises serious Liberty issues, which are foundational to constitutional rights. That, you know, includes bodily freedom, personal autonomy. A lot of privacy rights, which are grounded in several different constitutional provisions and address really all different sorts of aspects of your life. So generally speaking, liberty interests and privacy is kind of a component of that.
Jesse: I think one things that might set this apart from other issues is that it is a civil process. So, what bar has to be met in order to justify possibly superseding these liberties issues in a civil process.
Molly Linhorst: Yeah, that's a great question and it's also one that raises, I think a lot of the issues that are at the crux of why civil commitment is a constitutional issue. Because you have a lot of these characteristics of civil commitment that look like criminal commitment, that look like criminal detention, but you don't have the same sort of protections.
So there are different standards and different states have different processes, different procedures, different standards that you have to meet. But by and large, even though the courts have interpreted civil commitment, because it poses a risk of indefinite commitment, as a very serious constitutional issue. You don't have to meet the same standard in most states that you do for criminal detention. Which in both cases, the state holds the burden, but for civil commitment, they just don't have to have as high a showing. And part of that is because the courts have said, well, it's not really possible to get to that beyond a reasonable doubt standard. Instead it has to be by clear and convincing evidence. Which is still a fairly high standard, but you don't have the same sort of intense protections that you do in the criminal process. Which itself, as we all know, has a lot of problems and is not really sufficiently protective, but for civil commitments in particular, You have this lower standard, you don't have the same sort of evidentiary protections.
You don't have some sort of equivalent to the Miranda rights. You don't have the protection against self-incrimination. And I don't think a lot of people realize the immense power of the state to take away your liberty in what is a civil process. And I also, because I've mostly worked on immigrants, rights issues, and a lot of my work has been focused on immigration detention, right? Which is also a civil process. In both of these cases, you have the state saying we have an immense interest in making sure these people, for immigration detention go to their proceedings, right? In civil commitment they're talking about danger to yourself, danger to others.
And in some cases, the state is saying, well, these people need treatment, this is the only way they're gonna get treatment. So you have noncriminal sorts of reasons, but then in actuality, when you see how commitment plays out, or how immigration detention plays out, It holds a lot of the same characteristics as criminal detention.
So it's this uneven sort of application of what it looks like on the ground, and the sorts of protections that are in place.
Jesse: Involuntary detention for evaluation and civil commitment exists in an often unexamined area of society. They are legal forms of confining someone against their will and all that is required to authorize this sort of confinement is an opinion. Often that opinion is coming from a clinician with some sort of training and experience, but in many states, any adult in the community can go to a court and apply to have someone else detained for evaluation.
That is all it takes for police to be sent to your home to involuntarily bring you into a facility where you will be detained.
There isn't reliable evidence that these practices are actually helpful to the person being detained, but there does seem to be a significant amount of evidence that these practices bring the potential for serious harm. So why don't we question these practices? Why isn't there more attention given to the effects of this sort of coercion?
To better understand the state of research around involuntary detentions and civil commitments, I spoke to Nev Jones.
Nev Jones: My name is nev Jones. I'm an assistant professor in the school of Social Work at the University of Pittsburgh. I operate from kind of a survivor researcher space and over the years I have focused on a number of different issues. But I think I would sort of describe as an organizing theme, really trying to zero in on areas where there are particularly kind of pronounced disconnects between how people on the ground; service users, people with lived experience, are just experiencing these systems and services and interventions. As well as other ways in which power plays out in these spaces, and sort of where research is at, and kind of clinical development.
That's quite long.
Jesse: That's totally fine.
So, it seems clear that coercion is an important component to look at and understand. This process inherently involves coercion. Do you have a sense of why there wouldn't have been more focus on understanding the complexity of that coercion? And how it impacts the person experiencing it?
Nev Jones: I mean, I think there's many reasons, right?
There's pervasive ableism, sort of discrimination, stigma and social exclusion, and marginalization of people with “mental illness”. There's underlying racial and structural dynamics, as well as this sort of larger in a way, societal disregard for people who fall into sort of this category. You know it leads to, involuntary holds and civil commitments lead to automatic reporting to the police for example. Mainly because of firearms laws that render people who have been involuntarily committed ineligible to purchase firearms. And then again, the specifics vary by state. That in a way should be a major civil rights issue. And I'm, you know, I'm like an anti-gun person for sure but here the problem is not whether one is anti-gun or not, it is all about the discrimination. Serious discrimination completely out of keeping with evidence that we have on the likelihood of people who have been involuntarily hospitalized committing gun involved, firearm involved violence in the future. And yet there's been very little societal conversation or controversy about that.
So, I think it's just suggestive of a population, a group of people, that is extremely marginalized. Issues that are extremely marginalized, that we as a society don't care a whole lot about. And then there are, I think real kind of complications when it comes to power dynamics in this space that are very, very obvious to people who have been, for example, involuntarily hospitalized, that are not necessarily as apparent to kind of folks who have not. And there's huge underrepresentation of researchers with personal experience of hospitalization, involuntary hospitalization. And there are in turn huge barriers academically for people with psych disabilities and these kinds of histories of systems involvement.
So, I think there's a lot of things converging to sort of prevent research happening that otherwise would have. And there's something very uncomfortable to a lot of people also about the whole topic of coercion in psychiatry. Because certainly politically this has been, the big picture issue of like coercion, a huge point of contention, right? Between activists for many, many, many decades, and kind of clinical administrative policy research representatives or leadership. So, it is a contentious issue, and I think sometimes people just see it as easier to just sort of avoid, sidestep, not talk about for that reason.
Jesse: So there's a lot of disparity, a lot of systemic problems. And diagnosis can have an impact on the type of treatment you receive and things like coercion. Is there any research indicating how reliable an initial diagnosis might be?
Nev Jones: Very unreliable, especially if we're talking about, so first of all. I think there's a real need to carefully distinguish reliability and validity. So validity being, is there a valid, underlying condition or syndrome that is being captured?
Reliability is do two different clinicians even agree about what it is? And so there's underlying problems of validity. So just within the psychosis spectrum, or across “psychotic disorders”, there's tremendous disagreement, even among researchers about how to sort of divide or parcel things out. Whether that makes sense, whether there's a continuum, multiple continua. So there's huge disagreement.
So there's contestation about validity, and then there's also problems with reliability. And some diagnoses have incredibly low levels of reliability, especially in real world settings. Meaning more likely than not one clinician is gonna disagree with the next clinician about what's even wrong with somebody.
Some of the work I was previously doing, looking at youth who were referred within a court circuit for competency assessment. So there's some suspicion that there are mental competency issues in the context of whatever they were charged with, and they have to be assessed by multiple psychiatrists. And really shocking how three different psychiatrists, three completely different conclusions about what the diagnoses, usually plural, of the youth in question are.
Even in research settings where there's sort of hardcore training and reliability meetings and checks depending on the diagnostic category, right. Reliability can be low, but boy is it low when you're not even talking about those kinds of research constraints and it's just real world clinicians deciding on, you know, a DSM or ICD code to assign, or codes plural.
Jesse: Mental health laws in the US exist as a sort of disparate collection of complicated, localized systems. Not just in relation to the letter of the law, but also in relation to the clinical culture that surrounds those laws. For the person being forced through these systems, the differences in policy and practice can be shocking. Not just from state to state, but from county to county, from facility to facility.
Sometimes it feels like the only thing you can rely on in these systems is the potential for trauma.
So I asked Nev, if someone has been forced into one of these systems before, and been traumatized by it. Is there any research that indicates how clinicians should engage with that person if they're being forced into one of those systems again?
Nev Jones: There's very little work that's actually looked at the sort of deeper impacts that involuntary and coercive experiences have in terms of undermining trust and faith in the system. And internalized stigma, and I don't love the word stigma at all, but often what people, I think, experience and report, and certainly in the qualitative research I've done this is incredibly pervasive. Is a sense of sort of blaming and shaming in the context of involuntary everything; initiation, transport, hospitalization. And that can be deeply internalized. So how do we help people then who have sort of experienced these things to not just sort of process, but actually heal from. And I think we have very little research there. We have on the ground experience.
And in the last qualitative project I did, I systematically asked people about this and everybody said that they would deeply appreciate opportunities to actually talk through what had happened to them inpatient, their interactions with the police, all of it. And what was really shocking to me though, is that in my last kind of qualitative study out of like 40, you know, youth and young adults, only one, possibly two depending on how you would define this, was ever subsequently asked or given an opportunity to process what they'd been through. Which I found really quite shocking. And in one case, the young person had explicitly reached out to a third party source just to get that. So even for, you know, good portion of the people going back into mental health services, no processing of what happened to them in the hospital. And that to me is really quite shocking.
And I think there's really a lost opportunity we have to recognize, and I would say the same thing for re-entry for people who are leaving the prison system, which is just some massive, massive trauma, especially depending on how long they were there, whether they were in solitary or restrictive housing. We really need to start treating institutionalization as a major source of potential trauma and harm, maybe not a hundred percent of the time there, but a major potential source for a lot of people. And then actually responding to them as if they have been through something that could have had many negative impacts on them that they need to process and come to terms with.
And I think the whole idea of, kind of, sanctuary trauma, institutional betrayal comes into play too. What does it even mean for your whole outlook, much more broadly, like on society when ostensibly helping institutions end up being experienced as a source of real kind of harm? And I don't think it's just that that necessarily just applies to attitudes towards the mental health system. Do you start to distrust the government more? Do you start to feel politically demoralized and disengaged? And we just have essentially no research again on kind of looking at those impacts. And from an intervention standpoint or a support standpoint, what do we do? How do we help people process these experiences and end up in a place where they don't feel sort of disenfranchised more globally?
Jesse: On a Saturday morning, Cassidy was experiencing distress related to traumatic experiences from a previous inpatient hospitalization, so she called a hotline for help. That call resulted in police officers coming to her home, handcuffing her, placing her in a police car and driving her through her community to be detained for evaluation in an ER. She was evaluated, involuntarily sedated, and detained in a second facility for days.
The system that she was forced into guaranteed that traumatic experiences connected to her distress would be repeated.
These systems are not designed around evidence or empathy, the primary throughline of these policies seems to be protecting institutions from liability. And the access points that can initiate someone’s entry into a system like this continue to expand.
Next time, on the season two finale of Committable, we talk about 988.
Aneri Pattani: 988 has a policy that they call the imminent risk policy.
Rob Wipond: Even the National Suicide Prevention Lifeline’s own researchers admit this is so unreliable it shouldn’t be used, but they use it anyway.
Yana Calou: The kinds of harm that people are experiencing aren’t necessarily on the crisis hotlines themselves, right? It’s the emergency infrastructure that we have in our country that is often times making things worse. So, it’s the agencies that people interact with afterwards whether that’s police, or EMS, or psychiatrists, or doctors. This is what we have in this country are police, jails, emergency rooms, and psych wards, right? That is the infrastructure that exists and so as a country we really just need to look at our emergency infrastructure and really get to the underlying issues of why we’re in crises to begin with.
Jesse: This episode of Committable was produced by Michelle Stockman, Cassidy Wilson, Jim McQuaid and me, Jesse Mangan.
All music is from the song Reasonable by Christopher G. Brown.