Psychiatrists generally are aware that there is not necessarily any relation between competency and hospitalization for mental illness. The consensus seems to be that these two things should be considered entirely separately. Many patients may need mental hospital care, without having suffered any impairment of their competency. My personal estimate is that 75% of all patients admitted to the average mental hospital could be considered to be competent. Also, it is well to keep in mind that an individual may require a guardian because of incompetency due to a mental disorder, but not require hospitalization in a mental hospital. Unfortunately, this distinction is not readily recognized by many attorneys and courts. It is also sometimes forgotten by psychiatrists. There are many factors which tend to foster the impression that hospitalization in a mental hospital is equivalent to loss of competency. This paper is being written to bring attention to the problem and to plead for corrective action

Crawfis, Ewing H.

English

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Cleveland State University
EngagedScholarship@CSU
Cleveland State Law Review Law Journals
1957
Mental Competency and Mental Hospitals
Ewing H. Crawfis
American Psychiatric Association
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Recommended Citation
Ewing H. Crawfis, Mental Competency and Mental Hospitals, 6 Clev.-Marshall L. Rev. 454 (1957)
Mental Competency and Mental Hospitals
Ewing H. Crawfis, M.D., LL.B.*
p SYCHIATRISTS GENERALLY ARE AWARE that there is not neces-
sarily any relation between competency and hospitalization
for mental illness. The consensus seems to be that these two
things should be considered entirely separately. Many patients
may need mental hospital care, without having suffered any im-
pairment of their competency. My personal estimate is that 75%
of all patients admitted to the average mental hospital could be
considered to be competent. Also, it is well to keep in mind
that an individual may require a guardian because of incompe-
tency due to a mental disorder, but not require hospitalization
in a mental hospital.
Unfortunately, this distinction is not readily recognized by
many attorneys and courts. It is also sometimes forgotten by
psychiatrists. There are many factors which tend to foster the
impression that hospitalization in a mental hospital is equivalent
to loss of competency. This paper is being written to bring at-
tention to the problem and to plead Tor corrective action.
In a number of states, the process of commitment, or the
language of either the particular statute court order, makes com-
mitment of a mental patient to a mental hospital an automatic
adjudication of incompetency. This is true even though guardian-
ship is not provided for at the same time. The specific effect
of commitment upon an individual's competency will vary from
state to state. I have made no effort to determine statistics on
this for various states, for this particular paper, but I would
point out that such information as to his own state's practice in
this regard should be worthwhile knowledge for any attorney.
It is, of course, imperative that the physician on the staff of a
mental hospital have such knowledge at his disposal.
In Ohio, the competency of a patient in a state mental hos-
pital is specifically covered by Revised Code, Section 5123.57.'
All patients who are hospitalized by commitment are considered
* B. S. C., M.D.--Ohio State University; LL.B.-Cleveland-Marshall Law
School; Diplomate of the American Board of Neurology & Psychiatry; Cer-
tificate of American Board of Legal Medicine; Certified as Mental Hospital
Administrator by American Psychiatric Association; Superintendent of
Cleveland Regional Treatment Center (operated by the State of Ohio);
Superintendent of Hawthornden State Hospital (Ohio).
1 0. G. C., Sec. 1890-68 (Competency of patient).
1Published by EngagedScholarship@CSU, 1957
MENTAL COMPETENCY AND HOSPITALS
to be incompetent. Voluntary admissions, and sane epileptics
(presumably by medical certification), are excepted. It should
be pointed out that the statute provides that a contract, deed, or
other instrument can be executed by a patient if it has been
approved and allowed by the court committing him, and is
substantiated by an order entered on the journal of said court.
To my knowledge, this provision is little known, and seldom, if
ever, used. Since it also provides that a certified copy of such
order shall be attached to such contract, deed, or instrument, it
is quite cumbersome and apparently is generally ignored. The
statute also provides that it applies to patients who have been
placed on trial visit from the State Hospital. In actual practice,
it is ignored except in real property transactions. Here, the usual
procedure is to discharge the patient from the rolls of the hospital
before the expiration of the normal trial visit period, or to advise
delay of the transaction until the trial visit has been completed
and the patient has been discharged.
The status of the patient's competency while in the hospital
is of importance. But of much greater interest to the patient is
the effect of his release from the hospital. If the physician is to
be of help in advising and counseling patients who are ready to
be released from the hospital, he must have specific information
on the subject, particularly as to the practice and procedure in
his own state. Obviously, attorneys who are retained in such
cases should be informed as to such matters.
The statutes relating to discharge may alter, by the pro-
cedure prescribed, the intent or effect of other provisions of law
relating to the hospitalized mentally ill patient. The situation in
California provides a good example of this situation. The lan-
guage of the statutes2 indicates that the commitment procedure
is entirely separated from the determination of competency, and
that commitment means only that the patient is in need of hos-
pitalization and treatment. The Supreme Court of California
has ruled that the patient's competency is not affected, unless
guardianship action has occurred.8
This approach is, of course, consistent with the enlightened
psychiatric viewpoint. However, the sections of the statutes re-
lating to discharge set up a procedure for the restoration of com-
petency. They provide for the issuance of a discharge certificate
2 California W. & I. Code, Sections 5040 and 5100.
3 Application of Jackson ex parte Zanetti, 34 Calif. 2d 136, 208 P. 2d 657
(1949).
2https://engagedscholarship.csuohio.edu/clevstlrev/vol6/iss3/7
CLEVELAND-MARSHALL LAW REVIEW
by the Department of Mental Hygiene.4 A copy of the discharge
certificate may be filed with the clerk of the court of the county
from which the patient was committed. If the certificate of dis-
charge indicates recovery, the filing has the same legal force and
effect as a judgment of restoration to capacity. If the certificate
does not indicate recovery, it does not have this effect.
I shall discuss below the legal versus the medical implica-
tions of the terms "improved" and "recovered." The point to be
made here is that these California sections clearly imply that
commitment is equivalent to an adjudication of incompetency,
notwithstanding the previous sections and the court decision. In
the procedures and practices relating to discharged patients, the
implication destroys the effect of the statute separating com-
mitment and competency. In actual practice, this situation most
commonly becomes importart mn those instances -when disch.ayged
patients are involved in transactions concerning real property.
If a certificate of recovery has not been filed, then the formal
court action of judgment in restoration to capacity is insisted
upon before the discharged mental patient can convey title to
real property. It is my impression that a similar situation exists
in other states, in regard to certification of recovery upon dis-
charge acting as the equivalent to restoration to capacity.
The Ohio section (Section 5123.50)5 specifically states that
a discharge, as "recovered," shall operate as a restoration to
competency; a discharge, as "improved," shall not operate as a
restoration. There is also a section (Section 5123.51)6 which pro-
vides that a person previously adjudicated to be mentally ill,
feeble-minded, or epileptic, may file an application in the probate
court to determine whether such person is then competent. How-
ever, if the person has been committed to a state institution, he
shall not be permitted to file such application until he has been
discharged from the institution. Therefore, this section seems
to provide only an opportunity for the patient to raise the issue
of competency in case he is discharged as improved. But there
is still another sentence in Section 5123.50 which is important. It
states that such discharge, as recovered or improved, shall not
operate as a termination of an existing legal guardianship, but
may be received in evidence in a proceeding to terminate such
guardianship. I would emphasize here, that while our patients
4 Calif. W. & I. Code, Secs. 6728-29-30.
5 0. G. C., Sec. 1890-63 (Discharge of patient).
6 0. G. C., Sec. 1890-63a (Procedure to procure adjudication of competency).
3Published by EngagedScholarship@CSU, 1957
MENTAL COMPETENCY AND HOSPITALS 457
ordinarily assume that discharge from the hospital restores all
of their rights, from the above it can be seen that this is not
true and that further action on their part may be necessary.
As in Ohio, in other states there is a legal distinction as to
the terms "recovered" and "improved." The term "recovered"
is regarded as being the legal equivalent to "sane," or competent,
or "restored to capacity." The term "improved" is any condition
short of this, and carries the implication of lack of capacity.
7
However, in determining the condition at time of discharge,
the evaluation of the patient is a medical and psychiatric one,
rather than on the basis of the patient's legal status or com-
petency. The statistical manual of the American Psychiatric As-
sociation is ordinarily referred to in such situations, in order that
statistics of one state can be compared with others on a common
nationwide basis. The manual has two pertinent statements on
this subject.
1) "The individual's pre-illness capacity, in terms of occu-
pational and social adjustment, will be used as a base line for
estimating the degree of impairment." Note that the term "ca-
pacity" here is not the capacity nor competency commonly used
in legal terminology.
2) The term "no impairment" or "recovered" as described
in the manual is as follows: "This term will be used whenever
there are no medical reasons for changing employment or life
situation." Another favored psychiatric term-"remission"-
meaning abatement of the symptoms of disease, but implying
that the basic disease process is still present-is not used in the
manual in this particular section. There is no term in legal termi-
nology which has any equivalent status to remission. Yet pa-
tients are frequently discharged from mental hospitals with a
notation of being in remission.
It is my impression that state hospital psychiatrists are rather
conservative in discharge evaluation, and that the term "im-
proved" is favored over "recovered," even though the patient
may have returned to his former social situation and employ-
ment. Also, for purposes of statistical evaluation, remission is
commonly interpreted as "improved" rather than "recovered."
This has been particularly noticeable since the adoption of the
present revision of the nomenclature and the issuance of the
manual in 1952. I presume that the revision was based upon the
7 See, Black's Law Dict., 1440 (4th ed., 1951)-"recover"; Webster's New
Collegiate Dict., 419 (2d ed., 1949)-"improve."
4https://engagedscholarship.csuohio.edu/clevstlrev/vol6/iss3/7
CLEVELAND-MARSHALL LAW REVIEW
belief that hospitalization and competency would be clearly and
separately considered. Unfortunately, the changes in the statutes
of the states have not kept pace.
Under this system (APA Statistical Manual) the diagnosis
of mental illness includes the complementary evaluation ele-
ments of-
(a) external precipitating stress
(b) pre-morbid personality and disposition
(c) degree of psychiatric impairment.
There is a tendency to include the pre-morbid personality and
disposition in the consideration of discharge condition on the
basis of a permanent defect caused by the psychiatric disorder,
rather than to use it as part of the base line for estimating
whether or not the patient has returned to his pre-illness status
and condition.
The essential point that I would like to emphasize is that the
evaluation of the hospitalized mental patient at the time of dis-
charge is a medical and psychiatric one, with little or no con-
sideration as to his legal status in regard to competency. Un-
fortunately, however, in many instances his legal rights are in-
volved in this procedure, with injustices and inconvenience to
the patient.
For the ordinary adult, there is a presumption in law that he
is competent. Once he has been determined to be incompetent,
this condition is presumed to exist until there has been a ju-
dicial determination to the contrary, or until it has been affirma-
tively demonstrated that such is no longer the case. The absence
of such a positive judicial finding puts the patient at a dis-
advantage. In the case of the patient who is discharged as
"recovered" with notification to the court, and a change in the
official record, competency is restored. However, in the case of
the patient who is discharged as "improved," or in which the
hospital does not notify the court, the presumption continues,
even though the patient may return home, resume his business,
and conduct himself just as he did before hospitalization. He
may even obtain a driver's license and drive his car, or register
and vote, without being challenged. Should a contract that he
subsequently makes be attacked, or the question of his com-
petency be raised in some way, the burden of proof has now
shifted to him to demonstrate his competency.
As previously referred to, many discharged patients become
aware of this situation only when they attempt to convey title
5Published by EngagedScholarship@CSU, 1957
MENTAL COMPETENCY AND HOSPITALS
to real property. It should also be re-emphasized that this situa-
tion does not apply in those cases in which the patient is admitted
on a voluntary basis, or on medical certification in which no
judicial procedure has occurred. Unfortunately only a small
percentage of mental patients are admitted on such basis-the
majority still being committed by the courts.
I have made two recommendations to psychiatrists on the
staffs of state hospitals, who are considering patients for dis-
charge.
(1) I believe that a more liberal attitude in relation to the
use of the term "recovered" is justified. One of the devices
recommended is an effort on the part of the psychiatrist to de-
termine the competency of the individual patient at the time lie
is being considered for discharge. A specific notation is then
made so that both a medical and legal evaluation result. If the
patient is regarded as competent and able to manage his own
affairs, he is classified as "recovered" for the purpose of the dis-
charge record, and the report to the court.
It is pointed out that competency is not a static concept, and
that criteria vary. Obvious variants which may be encountered
are the capacity to make a will as compared with the criteria for
competency in operating a business. Or a person may be suffi-
ciently competent to purchase food and clothing and to meet
simple responsibilities, but not sufficiently competent to man-
age a complex business. A senile person who has managed a
complex business for a number of years may be competent to
continue managing it, more or less out of habit, although an
equally senile person who has never had similar experience
would not be so competent. Each case must be determined in-
dividually on the basis of the particular patient's mental condition
and the circumstances of the situation in which he will be placed.
It is clear that in following such a plan, the psychiatrist must
enlarge his knowledge of the criteria for competency.
(2) I feel that the psychiatrist should be informed as to the
statutes and the procedure in his own state, with particular ref-
erence to those governing the discharge of mental patients. He
should consult a lawyer for this information, or get a legal
opinion. Usually, in the case of state hospitals, this can be ob-
tained from the attorney general's office. If it is found that com-
mitment by the court is the equivalent to a determination of
incompetency in the state, the hospital staff should establish a
6https://engagedscholarship.csuohio.edu/clevstlrev/vol6/iss3/7
CLEVELAND-MARSHALL LAW REVIEW
procedure by which they notify the committing court of the dis-
charge of the patient, and of his status on discharge.
The statutes should be amended so that problems of hos-
pitalization for mental illness are clearly and specifically sep-
arated from competency. The determination of competency
should remain a legal matter, and should not be involved in
medical situations primarily related to hospitalization and treat-
ment.
Ohio Rev. Code, Section 5123.57: The section on competency
of patients should be amended so that: (a) Where hospitalization
is achieved by commitment or upon court order, the findings
in regard to capacity shall be specifically limited to "Lack of
sufficient insight or capacity to make responsible decisions with
regard to his hospitalization," and so that
(b) It specifically indicates that every patient retains his
civil rights unless he has been adjudicated incompetent and has
not been restored to legal capacity.
Ohio Rev. Code, Section 5123.50: The section on discharge of
patients should be amended so that: (a) Language referring to
the terms "recovered" and "improved" is deleted, leaving the
phraseology that the patient may be discharged when he can be
released without danger to others, and with benefit to himself,
and so that
(b) The sentence with reference to discharge operating in
relation to competency be deleted entirely.
I hope that the members of the legal profession in Ohio and
in other states will interest themselves in this problem, and that
the needed changes in the statutes, as described above, will be
accomplished.
7Published by EngagedScholarship@CSU, 1957


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