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Bill would make involuntary commitment easier: but critics of the legislation say lack of resources, not a too-high commitment standard, is the problem with Illinois' mental health system.

A bill to diminish the standard for involuntary commitment to a mental health treatment facility has passed both houses of the Illinois legislature.

SB 234 will amend the Mental health and Developmental Disabilities Code, 405 ILCS 5/1-100 et seq. The bill creates new section 1-104.5, defining "dangerous conduct" as "threatening behavior or conduct that places another individual in reasonable expectation of being harmed, or a person's inability to provide, without the assistance of family or outside help, for his or her basic physical needs so as to guard himself or herself from serious harm." It then amends section 1-119 of the statute, which defines a "person subject to involuntary commission," to include the "dangerous conduct" concept.

Without the amendment, the first category of persons subject to involuntary commitment, described in subsection (1) of section 1-119, is "[a] person with mental illness and who because of his or her illness is reasonably expected to inflict serious physical harm upon himself or herself or another in the near future which may include threatening behavior or conduct that places another individual in reasonable expectation of being harmed."

The amendment revises that subsection to read "[a] person with mental illness and who because of his or her illness is reasonably expected to engage in dangerous conduct which may include threatening behavior or conduct that places that person or another individual in reasonable expectation of being harmed."

SB 234 also adds a new category of persons subject to involuntary admission in subsection (3): "A person with mental illness who, because of the nature of his or her illness, is unable to understand his or her need for treatment and who, if not treated, is reasonably expected to suffer or continue to suffer mental deterioration or emotional deterioration, or both, to the point that the person is reasonably expected to engage in dangerous conduct."

The bill leaves unchanged subsection (2) of the definition, which includes a mentally ill person who, because of the illness, is unable to provide for basic physical needs so as to guard himself or herself from serious harm.

The unvoiced standard

Proponents of the bill believe it's necessary because the statute, as it currently reads, does not allow a court to force a mentally ill person into treatment soon enough.

Karen Gherardini, a Carlyle teacher who has a mentally ill family member and has actively worked for years to change the statute, says, "The current language isn't loose enough to enable those of us working with mental illness on a daily basis to use it. This change will make Illinois's law one of the best." Gherardini says it's vital for family members to be able to receive help from the courts for their loved ones before they reach the current statutory threshold of being reasonably expected to inflict serious physical harm.

Advocates don't agree as to the bill's wisdom or necessity, however. Mark Heyrman, a lawyer for the mentally ill at the University of Chicago's Mandel Legal Clinic, opposes the bill. Heyrman contends that even without the amendment, Illinois's statutory standard for involuntary commitment is already relatively low.

He distinguishes the statutory standard from the unspoken, effective standard applied by psychiatric hospitals as well as many, if not most, of Illinois's prosecutors and circuit judges in commitment hearings. That unvoiced standard, he says, which he agrees is relatively high, is whether the mentally ill person is in imminent danger of causing harm to himself or others--a significantly higher standard than Illinois's statute already dictates.

Why do hospitals and court personnel apply a higher standard for involuntary commitment than the statute requires, and what's the real problem with Illinois's mental health system? Lack of resources, says Heyrman--which this legislation doesn't address.

Heyrman explains: "There are 1,400 beds for psychiatric patients in state psychiatric hospitals now, compared with 55,000 50 years ago, and fewer than 4,000 private hospital beds. Yet the state's population has doubled in that time."

Though Heyrman also notes that the advent of new medications has substantially diminished the need for hospitalization, he says, "The number of beds is declining because we don't pay for them. Medicaid, Medicare, and private insurance policies all have very tough standards regarding what psychiatric treatment they will pay for. They have a million ways to say 'no' and very few ways to say 'yes.' People who are very seriously mentally ill [and who cannot afford to pay for care out of their own resources] are routinely turned away."

And that's only one facet of the lack of resources which Heyrman decries. "No one pays for the time of a private psychiatrist to testify at a commitment hearing, so sometimes a private hospital will just discharge a person who meets the statutory criteria because a psychiatrist will not testify at a commitment hearing."

Additionally, "There are not enough assistant state's attorneys statewide to do commitment hearings." Faced with multiple competing needs and mandates, it's not surprising that state's attorneys will opt to dedicate their assistants' time and expertise to prosecuting crimes over handling mental health commitments.

"It's confusing"

Heyrman emphasizes that he's criticizing neither psychiatrists nor state's attorneys: the former deserve to be paid for their time and work, and the latter are making valid resource-allocation decisions in the face of not enough to do everything. And hospitals can't lose money on treating patients and make it up in volume, he notes.

What if there were sufficient resources to treat all those who might benefit from psychiatric treatment? Heyrman still questions the worth of the statutory amendment. "It's confusing. What is covered now that wasn't covered before the amendment?"

Gherardini, on the other hand, while agreeing that increasing the system's funding is essential, maintains that the bill is needed to enable earlier intervention. "Everyone understands cancer and why it's important to intervene early. Mental illness is no different: we can stop a disease's progression by intervening early."

Doing so in her relative's case, she believes, would have enabled him to lead a normal life. Instead, that relative is now a public charge, presenting a far greater financial burden to the state than treatment for him would have, had it been imposed before his condition deteriorated to the current statutory standard.

Helen W. Gunnarsson is an attorney and writer in Highland Park. She can be reached at <>.
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Author:Gunnarsson, Helen W.
Publication:Illinois Bar Journal
Date:Aug 1, 2007
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