A Proposal for the Capacity to Stipulate to Civil Commitment and a 50-State Review of Statutes

Civil commitment is a legal process in which persons may be involuntarily detained for psychiatric evaluation and treatment if, because of mental illness, they are at imminent risk of harming themselves or others. Procedures that protect such persons from undue infringements of their personal liberties vary by state. Some jurisdictions permit individuals to waive their right to contest a hearing and instead stipulate to civil commitment. This differs from voluntary hospitalization in that the individuals accede to treatment for the term of commitment and forgo the possibility of either subsequent voluntary consent or withdrawal of consent. The authors describe a 50-state review examining whether statutory law permits these waivers. We show that many states allow a waiver but do not require that the person have decision-making capacity. Capacity assessment is essential because persons with impaired decision-making may accept a commitment that might otherwise have been successfully challenged, and commitment can have unwanted consequences, including extended hospitalization, loss of rights, and stigma. We propose procedures and criteria for assessing capacity to stipulate that include not only understanding that stipulation will result in commitment but also understanding the nature, purposes, consequences, and processes involved in commitment.