Involuntary Treatment and the Use of Jails to Treat the Mentally Ill

Psychiatric Issues in Emergency Care SettingsPsychiatric Issues in Emergency Care Settings Vol 23 No 5
Volume 23
Issue 5

All physicians need to be aware of the medicolegal aspects of practicing medicine, but because emergency psychiatrists must sometimes treat patients against their will or act as consultants to determine capacity, they must be especially vigilant when dealing with the overlap between law and medicine.

In this issue, Drs Signorelli and Mohaupt have addressed the most important legal issues in emergency psychiatry: informed consent and civil commitment. Here I focus my discussion on 2 important related issues: the controversy surrounding involuntary treatment and its effects on emergency psychiatry, and the fact that a substantial amount of emergency psychiatric evaluation and treatment takes place in jails rather than in psychiatric emergency departments (EDs) in the community.


Treating persons with mental illness involuntarily can be extremely controversial and is an issue in which ideology can play a central role. On one hand, civil libertarians believe that no person should be deprived of his or her liberty, except under extreme circumstances. On the other hand, most psychiatrists tend to look at a clinical situation and do what they believe to be clinically necessary. This is certainly true for emergency psychiatrists when, for example, they are confronted with an out-of-control psychotic patient in the ED.

Generally speaking, the actions of emergency psychiatrists regarding involuntary treatment are determined by clinical reality as opposed to basing their clinical actions on preconceived ideology. An inclination on the part of civil libertarians, based on ideology, to not use involuntary treatment extends to areas of intermediate and long-term treatment as well as to emergency treatment. Some examples of these treatments would be civil commitment and mental health conservatorship as used in California.

Intermediate and long-term hospitalization are usually, though not always, involuntary. If it is believed that all persons with mental illness can be treated voluntarily in the community, it follows that there is no need for hospitals or other forms of 24-hour structured care, such as intermediate-care facilities.

The closure of nonforensic state psychiatric hospital beds has resulted in a reduced ability of the mental health system to provide intermediate and long-term structured care for the severely mentally ill persons who may need it.1 Moreover, the number of available state psychiatric inpatient beds continues to decrease. Intermediate-care facilities have been used to replace state hospital beds in many states2; however, these facilities provide a lesser degree of structure than do state hospitals. Unfortunately, there is a shortage of intermediate-care beds as well.

Psychiatric bed shortages have had important effects on many persons with severe mental illness who need this intense level of care. These persons have not been able to adjust to community living and, thus, frequently require acute psychiatric hospitalization.3 This results in an overtaxing of the increasingly limited number of acute psychiatric beds in the mental health system. Therefore, emergency and psychiatric hospital staff must set priorities on which patients are admitted and how long they stay. Consequently, many persons in need of acute inpatient care are either turned away or discharged early.

Shortened hospital stays may lead to additional problems. For example, the patient's mental health condition may not be fully stabilized by the time he or she is released. In addition, there may not be sufficient time to involve the patient's family or other caregivers in the treatment or to help them learn ways to manage the patient's behavior, such as how best to encourage him to attend outpatient treatment and to ensure adherence to medication instructions.

If persons who need inpatient treatment or assisted outpatient treatment do not receive it, their exacerbations of illness will increase and they probably will present more frequently for emergency treatment. Moreover, with the shortage of psychiatric hospital beds, the treatment options for emergency psychiatrists are much more limited.


Statistics from the National Commission on Correctional Health Care indicate that 10% to 19% of persons in jails nationwide have a major mental illness, such as a schizophrenic or schizoaffective disorder, bipolar disorder, or major depressive disorder.4 Many of these persons have acute mental disorders and need emergency assessment. However, they do not receive treatment in psychiatric EDs but instead receive it in jail.1 How does this come about?

The Police and Psychiatric Emergencies

Since the advent of deinstitutionalization and the exodus of persons with mental illness into the community, law enforcement agencies have had an increasingly important function in the management of persons experiencing psychiatric crises. The rationale for the police to intervene in the lives of persons with mental illness derives from 2 common-law principles: the power and authority of the police to protect the safety and welfare of the community and the state's paternalistic authority (parens patriae) to protect citizens with disabilities who cannot care for themselves, such as those who are acutely mentally ill.5

The police are typically the first and often the only community resource called on to respond to urgent situations involving persons with mental illness.5 They are responsible for either recognizing the need for treatment of a person with a mental illness and connecting that person with the proper treatment resources or making the determination that the person's illegal activity is the primary concern and that he should be arrested. This responsibility thrusts the police into the role of primary gatekeepers who determine whether a person will enter into the mental health or the criminal justice system.

Even when the police think that a mental disorder is the root of a person's criminal or disruptive behavior, there are a number of problems that may contribute to the criminalization of that person. For example, the person may need psychiatric hospitalization, but there may be no available beds.6 However, the police know that if they refer a psychiatric case to the criminal justice system, the person will be dealt with in a systematic and predictable way--that is, he will be taken into custody, will hopefully be seen by a mental health professional affiliated with the court or jail, and will probably receive psychiatric evaluation and treatment. Thus, arrest is a response with which police are familiar, one over which they have more control, and one that they believe will lead to an appropriate disposition.5 Moreover, when persons who are socially disruptive are excluded from psychiatric facilities, the criminal justice system becomes the system that "can't say no."7

Although a person with a mental illness who is suspected of committing a serious crime will most certainly be arrested and transported to jail, a number of factors, in addition to those previously mentioned, may explain why a severely mentally ill person suspected of committing a minor offense is arrested rather than taken to a hospital. A person who appears mentally ill to a mental health professional may not appear so to police officers, who, de- spite their practical experience, have not had sufficient training in recognizing and dealing with mentally ill persons.8 Also, mental illness may appear to the police as simply alcohol or drug intoxication, especially if the mentally ill person has been using drugs or drinking alcohol at the time of arrest.9

Mobile Crisis Teams

Psychiatric emergencies have been dealt with effectively in communities in which close, formal liaisons between law enforcement and the mental health system have been established.10 These arrangements facilitate the resolution of crises involving persons with mental illness in the field without resorting to hospitalization or incarceration. When resolution is not possible, these liaisons help increase the number of persons with mental illness who are referred to the mental health system rather than jailed, thereby minimizing the criminalization of persons with mental illness. For persons who need psychiatric hospitalization, these approaches tend to increase their rate of acceptance by emergency services and hospitals.11

Various strategies have been developed to provide a mobile team of police, mental health professionals, or both to respond to persons with mental illness who are in crisis in the community.12 Many jurisdictions use sworn police officers who have special mental health training to provide crisis intervention services and to act as liaisons to the mental health system. This approach is often referred to as the Crisis Intervention Team model, or the Memphis model. These police officers may deal with mental health emergency situations on-site or act as consultants to the officers at the scene. This model relies heavily on psychiatric emergency services that have agreed to a no-refusal policy for persons brought to them by the police; it also minimizes the participation of mental health professionals in the field.

Another model that some jurisdictions use deploys teams composed of both specially trained sworn police officers and mental health professionals employed by the local community mental health department. These teams are effective in resolving emergency situations in the community that involve persons with mental illness and in diverting these persons to the mental health system rather than to the criminal justice system.13

The major goals of these specialized mobile crisis teams are to resolve crises and reduce the incidence of criminalization of persons with mental illness. Studies that have evaluated such teams found that their arrest rates ranged from 2% to 13% (with an average of less than 7%),11 compared with an arrest rate of 21% for contacts between nonspecialized police officers and persons who were apparently mentally ill. This finding lends credence to the idea that this specialized response lowers the incidence of inappropriate arrests and, instead, facilitates the referral of mentally ill persons to psychiatric emergency services.


Not meeting the needs of persons with severe mental illness for 24-hour structured care and involuntary community outpatient treatment has had a significant impact on emergency psychiatry. These persons more frequently present to EDs in psychiatric crises. Because persons with severe mental illness more often enter the criminal justice system, much emergency psychiatric evaluation and treatment takes place in jails. *



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. 1996;47:255-262.4. National Commission on Correctional Health Care. Prevalence of com- municable disease, chronic disease, and mental illness among the inmate population. In:

The Health Status of Soon-To-Be-Released Inmates: A Report to Congress.

Washington, DC; National Commission on Correctional Health Care: 2002. Available at: Accessed May 11, 2006.5. Lamb HR, Weinberger LE, DeCuir WJ Jr. The police and mental health.

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. 2002;53:1266-1271.6. Laberge D, Morin D. The overuse of criminal justice dispositions: failure of diversionary policies in the management of mental health problems.

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. 1995;18:389-414.7. Borzecki M, Wormith JS. The criminalization of psychiatrically ill people: a review with a Canadian perspective.

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1995;23:533-546. 9. Lamb HR, Weinberger LE, Gross BH. Mentally ill persons in the criminal justice system: some perspectives.

Psychiatr Q.

2004;75:107-126.10. Wolff N. Interactions between mental health and law enforcement systems: problems and prospects for cooperation.

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1998;23:133-174.11. Steadman HJ, Deane MW, Borum R, Morrissey JP. Comparing outcomes of major models of police responses to mental health emergencies.

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2000;51:645-649.12. Steadman HJ, Stainbrook KA, Griffin P, et al. A specialized crisis response site as a core element of police-based diversion programs.

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2001; 52:219-222.13. Lamb HR, Shaner R, Elliott DM, et al. Outcome for psychiatric emergency patients seen by an outreach police-mental health team.

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