Preventive outpatient civil commitment and the right to refuse treatment: can pragmatic realities and constitutional...

This article examines the concept of preventive outpatient civil commitment as a mechanism for controlling the behaviour of the chronically mentally ill. The goal of preventive outpatient civil commitment is to intervene at an early stage to prevent further deterioration of a mentally ill person's state. In the jurisdictions in the United States which have enacted preventive outpatient civil commitment statutes, there is a lesser standard required for outpatient commitment than for inpatient commitment. For outpatient commitment, there generally only needs to be a finding of mental illness and a conclusion that without treatment a person's mental illness will further deteriorate. This standard often clashes with the civil liberties of those being committed, particularly with the right to refuse treatment. This article explores preventive outpatient civil commitment in relation to the historic right to refuse treatment by examining the antithetical positions of the state's authority to treat and the mental health client's interest in liberty. The article concludes that both of these positions ignore the possibility that, through the development of an adequate community care service system, the reality of the mentally ill in the community may be reconciled with a civil liberties perspective. '[The] [c]onstitutional right to privacy...is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life. The value of life as so perceived is lessened not by a decision to refuse treatment, but by the failure to allow a competent human being the right of choice.'