By Katherine Drabiak, Associate Professor of Health Law, Public Health Law and Medical Ethics, University of South Florida
Over the past year, cities across the United States have unveiled new policy plans to address homelessness amid rising concerns about health and crime – for homeless people themselves, as well as for surrounding communities. Notably, several proposals include civil commitment, also referred to as involuntary treatment, for people with severe mental illness or substance use disorders.
In November 2022, for example, New York City Mayor Eric Adams announced a plan to use mental health laws to facilitate involuntary treatment when people are unable to care for themselves, or when their actions endanger others. Court-mandated treatment could include therapy, social workers, housing referrals, medication or other interventions, either in hospitals or on an outpatient basis. New York’s plan builds on other recent initiatives to connect more homeless and mentally ill people with shelters or supportive housing.
Political leaders in California and Portland, Oregon, have approved similar plans to use civil commitment laws. As a health law and medical ethics professor, I believe it’s worth explaining how these laws work and the ethical issues they raise.
How civil commitment works
Civil commitment laws have been around for decades. However, they only recently appear to have regained traction as a strategy for addressing the intersection of homelessness, mental illness and substance use disorder.
States have enacted these laws based on two theories. First, under the doctrine of parens patriae, a Latin phrase that means “parent of the nation,” states have a legal and ethical obligation to step in and help vulnerable people who cannot act for themselves. Second, in public health law, the concept of police power means that states have a duty to pass and enforce laws to preserve public health and safety, which can be impacted by homelessness.
Every state has different laws outlining civil commitment. Importantly, these laws are a civil mechanism for courts to oversee a treatment plan for people with severe mental illness or substance use disorders that meet specific criteria. For example, a court could assess testimony and evidence from clinicians that a person has such a severe substance use disorder that he repeatedly loses consciousness, will not accept assistance and risks freezing to death outside. These laws do not “criminalize” or punish homelessness.
During the initial assessment process, the person receives care in a hospital, where clinicians determine their medical needs. Afterward, the court may order a treatment plan that would outline requirements for the person to accept shelter and maintain weekly appointments such as attending therapy or drug treatment. Treatment in inpatient hospitals are generally only used in cases of severe illness, and laws require using the least restrictive plan possible.
Civil commitment laws also require due process, or a fair procedure for people to participate in the process, object and have assistance from legal counsel.
Understanding chronic homelessness
What is often called “the homeless” population is actually multiple groups with different needs, including youth, families, veterans, people with short episodes of homelessness spurred by job loss or unexpected bills, and the chronically homeless.
However, the most visible population – those who are chronically homeless without shelter – suffer from high rates of untreated severe substance use disorders and mental illness, though estimates vary. The University of California’s California Policy Lab analyzed surveys of 64,000 people who were homeless across 15 different states and found that 78% of the unsheltered homeless suffered from mental illness and 75% from a substance abuse disorder. Fifty percent experienced both.
Clinicians note that mental illness and substance use disorders can contribute to homelessness, and worsen it, too.
Civil commitment aims to improve the well-being of individuals and communities. But it raises difficult questions about core ethical issues such as autonomy – people’s right to make medical decisions for themselves – and beneficence, or ensuring that interventions provide more benefit than harm. Some experts oppose using civil commitment laws and assert that states should rely on voluntary services. Voluntary treatment, some of them contend, is just as effective but preserves autonomy and the freedom to choose or decline treatment.
Critics also assert that involuntary commitment violates the principle of beneficence, because it can stigmatize homeless people with severe mental health and substance use disorders by implying that they do not belong in public. Others contend it is cruel and coercive. Advocates for plans like New York City’s, on the other hand, assert that civil commitment laws are not only effective at connecting people with help, but fulfill a moral obligation to prevent people from suffering on city streets.
In most instances, health care workers and ethicists presume that adults can make their own medical choices in line with their values and needs. But people with severe mental illness or substance use disorder may experience impairment in their ability to deliberate, assess their needs and make decisions, which compromises their autonomy. Though involuntary treatment violates autonomy, it can also help people regain it through stabilization and recovery.
Many clinicians and outreach workers argue that glossing over the impact of untreated mental illness and substance use disorder violates the principle of beneficence, because avoiding treatment may result in more health harms.
Ethics debates must also grapple with how treatment affects the surrounding community, such as safety – including for other people experiencing homelessness. As one data point, the San Diego District Attorney’s Office has compiled data showing people who are homeless are far more likely to be the victims of crime. Its data found that this population commits dramatically higher rates of vandalism, arson, assault and burglary as well, although there are few nationwide studies. And while most people who are homeless, have a mental health illness or have a substance use disorder are not violent, some studies suggest people with a severe mental health illness are three to four times more likely to display violent behavior.
Some evidence suggests that civil commitment can increase follow-through with treatment plans, reduce acute hospitalization and decrease violent behavior. Proponents assert that despite the coercive nature of civil commitment, it provides benefit as a step toward restoring the health of each person, and of society.