American Journal of Law & Medicine

The due process right to a safe and humane environment for patients in state custody: the voluntary/involuntary distinction.


In December 1995, the Eighth Circuit decided Kennedy v. Schafer,(1) holding that a teenage patient who committed suicide while under treatment at a state psychiatric facility had a constitutionally protected liberty interest in a safe and humane environment under the Due Process Clause of the Fourteenth Amendment(2) if her status changed from voluntary to involuntary during the course of her admission.(3) The fifteen year old patient, Kathleen Kennedy, had been identified as a suicide risk, and had been placed on "Protective Suicide Precautions," which required a designated staff member to keep her in constant eyesight and to interact with her at fifteen to twenty minute intervals.(4) Despite these stringent requirements for supervision and contact, Kathleen was found dead in her room more than two hours after her last contact with a staff member.(5) Her parents brought suit under 42 U.S.C. [sections]1983(6) against state and hospital officials, alleging that chronic understaffing and falsification of the records used to determine staffing levels amounted to a pattern of deliberate indifference to patient safety which violated their daughter's protected liberty interest in a safe and humane environment.(7)

In reviewing the district court's grant of summary judgment, the Eighth Circuit considered whether the state's failure to supervise the patient adequately in order to protect her from harming herself amounted to a deprivation of her constitutional rights.(8) Although the Fourteenth Amendment does not generally impose a duty on a state to protect its citizens,(9) the state may incur an affirmative obligation to provide safe and humane conditions of confinement when it assumes custodial control over the care of an individual such as a prisoner(10) or an involuntarily committed(11) mentally ill or retarded patient.(12) Because Kathleen Kennedy was voluntarily admitted to the state facility by her parents, the court held that she might not be entitled to the same due process right to a safe and humane environment as would a patient under the same circumstances who had been involuntarily committed to the facility.(13) This surprising distinction stems from the confusion surrounding interpretation of two U.S. Supreme Court decisions addressing the due process right to safe and humane conditions for individuals in state custody.(14)

This Note reviews the varying interpretations given the Supreme Court decisions in Youngberg v. Romeo(15) and DeShaney v. Winnebago County Department of Social Services(16) which led to the voluntary/involuntary distinction in the context of mentally ill and retarded patients confined to state facilities. After examining how lower courts have sought to protect the rights of all patients in state facilities by avoiding application of the distinction, this Note suggests an alternative to finding a substantive due process right to safe and humane conditions. Part II discusses the similarities and differences between voluntary and involuntary commitment to a state facility. Part III examines the substantive due process right to a safe and humane environment and Youngberg's effect on that right. Part IV analyzes the approaches courts have taken following DeShaney, either in adopting or in attempting to circumvent the voluntary/involuntary distinction. Part V charts the constitutional basis of the substantive due process right to a safe and humane environment for patients in state custody. This analysis suggests that the right should not depend on the illusory or arbitrary distinction between voluntary and involuntary commitment, but rather should be based on an analysis of specific factors affecting the relationship between the state and the individual. Part VI concludes with a proposed alternative analysis for determining whether a patient may assert a constitutional right to a safe and humane environment.



Commitment refers to the "proceedings directing confinement of a mentally ill or incompetent person for treatment."(17) Such proceedings may be voluntary or involuntary.(18) What are the actual differences between voluntary and involuntary commitment? The answer is not as simple as it may seem, because the law governing commitment procedures varies from state to state and a variety of competing social policies influence the form that commitment takes in a given jurisdiction.(19)


One commentator has identified eight overlapping types of commitment, only one of which can truly be considered voluntary in the sense that it results from the patient's uncompelled free choice.(20) Informal commitment, the only purely voluntary form, allows competent adults to admit themselves for treatment.(21) Such patients are truly voluntarily committed in that they are free to discharge themselves at short notice and are not subject to continued confinement for evaluation or treatment by court order.(22)

Other types of commitment are considered less than completely voluntary because the individual does not retain full control over his care and treatment or have the freedom to discharge himself. In a voluntary commitment, a facility admitting a competent adult may retain the right to institute involuntary commitment proceedings or demand that certain bureaucratic requirements be met before granting the patient's request for discharge.(23) Thus, although the patient has freely chosen to receive treatment, the facility may curtail his ability to terminate treatment. A third-party commitment involves the initiation of civil commitment proceedings by another person (such as a parent or guardian) on the patient's behalf(24) The parent or guardian may consent to the patient's commitment, which, depending on the circumstances, may be either voluntary, whereby withdrawal of consent leads to discharge, or involuntary, whereby discharge may only occur after an administrative or judicial proceeding.(25) In either case, the voluntary element of the commitment comes not from the patient himself, but from consent given by the third party initiating the proceeding, and thus is not the product of the patient's free and unconstrained choice.

Other forms of commitment are traditionally considered involuntary because they do not result from the patient or a third party's free and unconstrained choice to consent to commitment.(26) Rather, the court orders confinement of a patient for evaluation, treatment or custodial care, usually based on a finding that the patient suffers from a mental illness and poses a danger to himself or others, or cannot adequately care for himself in the community.(27) In general, involuntarily committed patients lack the freedom to discharge themselves and may have limited ability to make decisions about their treatment.(28) To commit a patient involuntarily, the state must provide procedural due process protections that are usually statutorily defined and may vary with the type of commitment.(29) Short-term commitment is involuntary commitment of a statutorily limited duration, instituted in an emergency situation for the purpose of evaluating the patient's status, or as an interim measure pending further proceedings.(30) Extended commitment involves long-term or permanent placement of an individual in an inpatient facility.(31) The legal procedures involved in this type of commitment must meet "the most rigorous substantive and procedural due process requirements."(32) Outpatient commitment may serve as a less restrictive alternative to inpatient treatment or in lieu of preventive detention, but is also involuntary in nature because the patient must comply with court ordered conditions of outpatient treatment or monitoring.(33) Recommitment is a procedure for periodically reviewing and extending involuntary commitment.(34) These types of civil commitment differ from criminal commitment in which the criminal justice system confines the individual for the purpose of punishment rather than treatment.(35)


Involuntary civil commitment serves as a means of providing care and treatment to an individual who suffers from serious mental illness and is unable to care for himself.(36) It also protects both the patient and society when the individual poses a threat to himself or others.(37) In almost all jurisdictions, the standards for involuntary civil commitment focus on the danger the individual poses to himself or others, and on "grave disability, inability to provide for one's basic human needs, or treatment that is essential to one's welfare."(38) In recognition of the value that society places on individual liberty, many states mandate that courts impose only the least restrictive viable alternative form of treatment on involuntarily committed patients.(39) Involuntary commitment is usually undertaken as a last resort when the patient is unable or unwilling to seek care voluntarily.(40) Both the procedures for involuntary commitment and the programs in which patients receive treatment must balance the goals of providing treatment for mental illness and protecting against deprivations of liberty.(41)

Voluntary commitment is generally preferable to involuntary commitment which entails the state restricting the patient's liberty by forcing him to seek help.(42) Voluntary patients have the flexibility to select a program that meets their needs and the willingness to accept appropriate treatment.(43) Under these circumstances, the patient is more likely to benefit from treatment, may earn more privileges and may avoid the stigma associated with involuntary commitment.(44) In addition, voluntary commitment vastly reduces the administrative burden on the treating facility.(45) For these reasons, some facilities allow patients to elect or convert from involuntary to voluntary status.(46)

The availability of this choice and the concerns related to the voluntariness of the decision itself illustrate the haziness of the distinction between voluntary and involuntary commitment. Because administrative and treatment procedures are less complicated for voluntary patients, hospital staff members may coerce patients to elect voluntary status.(47) By electing voluntary status, patients may nevertheless unknowingly agree to restrictions of their liberty, such as remaining in the hospital, consenting to certain treatment and giving up the right to discharge on demand.(48) Hospitals may decline to admit voluntary patients unless they agree to some restrictions to their freedom to discharge themselves because the institutions hope to avoid wasting resources on patients who do not stay long enough to receive effective treatment.(49) Because patients relinquish some liberties by agreeing to limitations on their ability to discharge themselves or decline treatment, experts recommend legal representation for voluntary as well as involuntary patients, to protect their rights and to insure that election of voluntary status is truly voluntary.(50) Both patients consenting to commitment and those committed by the courts thus face substantially similar problems surrounding restraints of their liberty in making treatment decisions.

Voluntary and involuntary patients or residents in state institutions share the common needs of shelter, care and treatment for their disabilities or illnesses. Whether voluntary or involuntary, in some cases the purpose of admission to a mental health facility is to treat the patient and ultimately to enable him to live independently on discharge.(51) Similarly, a patient suffering from an illness so disabling that he is unlikely to achieve a level of functioning sufficient to allow him to reside outside the institution could be committed on a voluntary or involuntary basis.(52) The problems, basic needs and liberty interests of mentally ill individuals do not differ based on their status as voluntary or involuntary patients. Both from the practical standpoint of providing efficacious care and treatment, and from standpoint of protecting constitutional liberty and individual autonomy, it is impossible to justify drawing a distinction between voluntarily and involuntarily committed patients for the purpose of insuring their right to safe and humane conditions in state facilities.(53)


Prior to the U.S. Supreme Court's 1982 decision in Youngberg, lower federal courts had recognized the constitutional right to a safe and humane environment for mentally ill and retarded patients admitted to state institutions.(55) Most of these cases arose as claims under 42 U.S.C. [sections] 1983 for deprivation of constitutional rights.(56) The courts reached the conclusion that the Constitution guaranteed the right to a safe and humane environment by analogizing the rights of patients in state hospitals to those of prisoners,(57) who have a right to safe conditions of confinement under the Eighth Amendment's(58) prohibition against cruel and unusual punishment.(59)

In Youngberg, the Supreme Court recognized an involuntarily committed mentally retarded man's constitutional right to a safe and humane environment.(60) The Court adopted the rationale of courts that had previously addressed the issue, holding that "[i]f it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed -- who may not be punished at all -- in unsafe conditions."(61) The case involved a profoundly retarded adult, Nicholas Romeo, committed to a state facility by his mother who was unable to care for him.(62) Romeo suffered numerous injuries at the facility, both at the hands of other residents and by his own violence.(63) His mother instituted the suit on his behalf, alleging that facility officials knew of his injuries but failed to insure safe conditions for Romeo in violation of his Eighth and Fourteenth Amendment rights. …

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