The “Voluntary” Inpatient Treatment of Adults Under Guardianship

A number of states have adopted a preference for voluntary hospitalization over involuntary civil commitment for adults with severe mental illness who require inpatient treatment. Frequently, however, the very disabilities that call for inpatient treatment also disrupt an individual patient’s capacity to participate fully in the decision-making process by which hospital admission is elected. When impaired patients have a court-appointed guardian, difficult questions can arise as to the power of the guardian to consent to the ward’s admission for inpatient psychiatric treatment. In some states, the guardian may not consent to the ward’s admission. In others, the guardian’s authority to arrange for voluntary inpatient care may depend on his or her obtaining specific court authorization. Additional requirements apply in other states, often created by the interplay between the laws regulating mental hospital admission and those governing the powers and responsibilities of guardians. Involuntary commitment statutes in virtually every state require that the individual must be dangerous to himself or herself or others. Voluntary hospitalization, by contrast, generally is based on the patient’s need for and amenability to treatment. If a guardian is not permitted to consent to voluntary admission, the more restrictive involuntary commitment standard, with its dangerousness criterion in particular, may make it difficult or impossible to arrange for inpatient care for some patients with severe mental disabilities who do not present an imminent risk of harm, but who would benefit from such treatment. Patients who are assisted by guardians should be able to gain access to inpatient psychiatric treatment without running the gauntlet of involuntary civil commitment, if the substantive standards and procedural requirements put in place by state law can be made adequate to insure that third-party decision-makers are acting with respect for the values held by these patients and, to the extent possible, are seeking to serve their best interests. This Article provides a brief history of the law in this area, explores the role that informed consent plays in voluntary hospitalizations, provides an analysis of the interests in tension, and offers a framework for an effective statutory approach to the area

Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom

The history of narcotics use and drug control in the U.S. before passage of the Harrison Act in 1914 is similar in important respects to that in the U.K. during the same period. Although the two countries’ paths diverged significantly over the ensuing decades, there has been a convergence of sorts in recent years. In the United States, the trend lines have moved from an active “war on drugs” in which criminal enforcement and punishment have been the primary rhetorical and practical instruments of policy to an evolving approach, at least at the federal level, characterized by a somewhat more pragmatic tone and a more balanced set of interventions that mix enforcement, treatment and prevention. From the British side, the movement has been in the opposite direction, from a longstanding public health approach to an intensifying focus on criminal offending as the primary social risk posed by the misuse of drugs. Thus, just as the criminal justice system long has been the principle front in the U.S. assault on drug abuse, the shift in British drug policy has now made the criminal system in the U.K. a central focus in its efforts to combat the problem of drugs and drug addiction. This pattern of convergence is likely to be incomplete. Even though actors in each country have been aware of developments in the other (and have even borrowed policy prescriptions from time to time), one critical difference in their parallel histories is likely to be determinative. The American move toward pragmatism, if it is to occur, must be executed against the inertial force generated by policy commitments and social practices of more than seventy-five years standing in which the most dominant feature has been an intense moral disapproval of drugs and those who use them. The British approach to drug policy, on the other hand, does not have to contend with this moral anchor, and therefore is likely to remain more pragmatic and therapeutic in orientation into the foreseeable future