Bring Back the Asylum? State Legislation on Involuntary Psychiatric Care

• In Event: The Local Politics of Community Health Care

Abstract

Since the 1960s, mental health care in the United States has undergone a dramatic shift, with the closure of 90% of public psychiatric hospital beds and the vast expansion of community-based care. This transformation was driven by the rise of more effective medications that allowed more people to stabilize outside of institutions and by cost-shifting from state governments onto Medicaid (which would not pay for state-run institutions). It was also spurred by civil rights legislation and litigation that made committing patients to hospitals involuntarily more difficult.

This study shows a counter-movement to this last trend, based on a state-by-state survey of legislation introduced in the last decade. Researchers compiled all bills considered by state legislatures from 2012 to 2022 referring to involuntary hospitalizations, involuntary outpatient commitment (in which a judge orders a person to accept treatment in community settings), court-ordered medication, emergency detentions of people in crisis (usually by law enforcement), and conservatorships or guardianships for people with mental illness. The paper also presents descriptive information on the party identification of bill sponsors and vote counts.

The data set, which includes over 800 bills, shows a significant increase in the introduction and passage of legislation over the study period. While in 2012 the most common types of legislation pertained to involuntary outpatient commitments, over time, the focus has shifted towards inpatient care in locked settings and longer-term guardianships. Moreover, bills focused on involuntary commitments for people using substances and individuals in the criminal justice system have proliferated, reflecting an understudied dimension of public health (versus criminal-legal) responses to the opioid and mass incarceration crises: namely, their reliance on involuntary interventions.

Notably, despite a dearth of data on the efficacy of forced treatment and a lack of regulatory guidance from state mental health agencies, few bills include a monitoring and evaluation component or established clear lines of responsibility for implementing changed commitment criteria. While a variety of state-level reforms (such as the introduction of non-police crisis services or the expansion of community-based services) could potentially reduce rates of involuntary treatment, reducing forced care was almost never specifically identified as a goal of legislation. Most bills to expand forced treatment passed unanimously.

A content analysis of over 300 press releases from the authors and sponsors of bills which were enacted, as well as Governors’ signing statements, reveals some of the motivations for this legislation. Although previous research has focused on the centrality of fears of violence from people with mental illness as a driver of support for forced treatment, bill proponents cited a wider range of arguments. The most frequent justifications were concerns about homelessness, the burden posed by people with untreated mental illness on their families, and the need for forced treatment to divert people from the criminal justice system (this mirrors recent studies of media reporting on involuntary treatment. These justifications are consistent with the overall pattern in bill introductions, with most legislating happening in Democratic-led coastal states where forced treatment is being redefined as urgent, life-saving compassion, in addition to serving as a tool for managing urban disorder linked to homelessness and substance use.

Other scholars—drawing on the limited administrative data published by states—have shown a nationwide increase in the number of people subjected to short-term forced psychiatric treatment. However, this is the first study showing nationwide trends in legislating on the topic. While calls to bring back the asylum could be heard as soon as asylums started closing, concerns about homelessness, addiction, and criminalization may be driving a substantive, not rhetorical, attempt to shift away from community care. Advocates for voluntary, community-based solutions should be attentive to these changing patterns and rhetoric.

Author

• Alexander Vosick Barnard, New York University