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We Will Have to Suffer Now ‘Cause You Had It All

So, when does a patient become involuntary? This isn’t an idle question; there’s an awful lot of government-run health care facilities, and the question of voluntary vs. involuntary patients is pretty important.

I just finished a brief to the 8th Circuit on this question. First, in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Court held that the state does not have an affirmative duty to prevent people from private harm. However, in Youngberg v. Romeo, 457 U.S. 307 (1982), the Court also held that those who are involuntarily held have substantive due process rights, including rights not available to those in a DeShaney situation. So, in DeShaney, a child in an abusive home was never placed in foster care, even though everyone knew he needed to be removed from his father’s care. We all remember that, right? And in Youngberg, we all remember the mentally handicapped patient who was owed protection from private violence in the state hospital because he had been committed against his will. The way this has been interpreted is as saying that involuntary patients certainly have those substantive due process rights; but voluntary patients might, but in any event officials have qualified immunity. Kennedy v. Schafer, 71 F.3d 292 (8th Cir. 1995). So, if you are seeking to raise a claim against hospital officials for a private harm, you had better prove that the patient was involuntary.

So, if a patient admitted themselves, is that the ball game? Are you done? Once a voluntary patient, always a voluntary patient? Well, that hasn’t been decided definitively. By my reading, the answer seems to differ between the First and Eighth Circuits (I can’t speak as to where other circuits stand, mostly because I’m too lazy to look it up). In the First Circuit, even though a patient may disagree with the treatment choice his doctors make, if he self-admitted, he has no due process rights – even if they decide to move him to another facility without his consent. Monahan v. Dorchester Counseling Center, 961 F.2d 987 (1st Cir. 1992). In the Eighth Circuit, however, a voluntarily-admitted patient can become an involuntary patient if the state could have kept them from leaving. Kennedy, 71 F.3d at 295.

So when does a voluntarily-admitted patient become an involuntary patient? What causes that change? We know that it requires that the state be able to prevent the patient from leaving. But what triggers that power? I don’t know; I’m not convinced that anyone knows yet. It could be that the patient causes their rights to vest by asking to leave, and causing the state to refuse them. That just doesn’t make sense to me, though. I mean, it fits in with the general narrative of the Court’s Fourth Amendment rights jurisprudence; all the business (with cases I can’t remember and can’t be bothered to look up right now) that basically make your rights contingent on an explicit assertion of them. But that creates a perverse incentive; many states require patients who are a threat to themselves to be involuntarily committed. Thus, the hospital will simply never place a patient on suicide watch or never take any steps to prevent self-harm. And those patients will never have any cause of action when the hospital refuses to prevent their suicide – even if that’s why they self-admitted.

It’s traditional in these sorts of posts to say at this point, “is the alternative any better?” and spend some time critiquing the alternative. But since the alternative is basically, “courts have to do their jobs and inquire into facts,” I’m going to say, “yes, it is.” But I’m open to being convinced otherwise. So, Dear Readers, what thinkest you? Should a patient have to demand release to be treated as an involuntary patient?

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