Accredited Psychiatry & Medicine | Harold J. Bursztajn, MD, Forensic Psychiatrist | Process Analysis of Judges’ Commitment Decisions

Process Analysis of Judges’ Commitment Decisions: A Preliminary Empirical Study

Harold Bursztajn, M.D., Thomas G. Gutheil, M.D., Mark Mills, J.D., M.D., Robert M. Hamm, Ph.D., and Archie Brodsky, B.A.

Presented at the 137th annual meeting of the American Psychiatric Association, Los Angeles, May 5-11, 1984. Received Jan. 31, 1985; revised Aug. 7, 1985; accepted Sept. 16, 1985. From the Program in Psychiatry and the Law, Massachusetts Mental Health Center; the Department of Psychiatry, University of California, Los Angeles, School of Medicine; the Center for Research on Judgment and Policy, University of Colorado, Boulder; and Hampstead Hospital, Hampstead, N.H. Address reprint requests to Dr. Bursztajn, Program in Psychiatry and the Law, Massachusetts Mental Health Center, 74 Fenwood Rd., Boston, MA 02115.
Supported in part by NIMH grant MH-16460.
The authors thank Paul S. Appelbaum, M.D., for critical review and comment; the Honorable Maurice Richardson for help and inspiration; and Ms. Audrey Bleakley for help in the preparation of the manuscript.

The current debate over the "police powers" versus parens patriae rationales for involuntary hospitalization of the mentally ill underscores the need for empirical study of the process of judicial decision making in civil commitment and determinations of competence. The authors report the ratings on 26 descriptive variables made by five Massachusetts district court judges for 35 patients in civil commitment hearings. Nearly all of the hearings resulted in commitments. These findings suggest that psychiatrists may be setting too high a threshold for petitioning for commitment. Experienced judges appeared to be sensitive to the kinds of clinical issues that earlier studies have shown to contribute significantly to the psychiatrist’s decision to petition for commitment.
(Am J Psychiatry 143:170-174, 1986)

Public policy with respect to the civil commitment of the mentally ill is currently the subject of intense debate. In recent years the dominant legal trend has been toward a "police powers" or public safety rationale, according to which individuals diagnosed as mentally ill (alone among potentially violent individuals) are subjected to a form of preventive detention when they are also judged to be dangerous [1]. However, the observed inadequacies of this approach have led to a revival of interest in the older parens patriae model, according to which the state is empowered to hospitalize involuntarily, for their own benefit, individuals in need of treatment. Most clinicians would prefer to restore need for treatment as a primary justification for involuntary hospitalization of the mentally ill, leaving the question of dangerousness in the hands of the criminal justice system [2]. This preference is reflected in the American Psychiatric Association’s model state statute on civil commitment [3], which links a patient’s committability to his or her competence to give informed consent.

In the context of this debate it would be especially valuable to learn more about how judges actually make commitment decisions and, in particular, how the question of competence figures in judges’ thinking about committability. Do judges follow a "police powers" model, a parens patriae model, or a combination of both? It is, at present, difficult to answer this question because the relationship between psychiatry and the law has to date had little illumination in the form of empirical studies of the process of decision making. Although such research has now begun in psychiatry [4], the study of judicial decisions has (with the exception of non-data-based reflections [5]) taken the form of outcome studies [6], simulation and/or observation studies [7, 8], and models of process based on outcome [9]. Yet, studies applying contemporaneous process measures to actual court hearings would seem essential to understanding the subtle interplay between clinical and judicial reasoning in areas such as civil commitment.

In this preliminary empirical study of civil commitment decisions by Massachusetts district court judges we will attempt a form of in-process examination that has not been described before. In Massachusetts, a voluntarily hospitalized patient who has been admitted on a "conditional" basis must give 3 days’ written notice (a 3-day paper) signifying an intention to leave the hospital, after which the patient’s psychiatrist has 3 days to decide whether to petition the court for commitment lasting up to 6 months. Thus, commitment is a two-step process: the physician does or does not petition; if petitioned, the judge does or does not commit. Having investigated and reported elsewhere the psychiatrist’s decision to petition for commitment [4], we sought to find out whether judges use similar strategies, conscious and unconscious, in making the actual decision to commit. We expected that our findings might also shed light on the previously observed tendency of judges to defer to psychiatrists’ recommendations for commitment, and/or that of psychiatrists to attempt to anticipate the likely judicial disposition of a case when deciding whether to petition [8, 10-12].

Psychiatrists’ Decisions On Commitment

In the previous study [4], clinicians were found to be properly attentive to the three legally mandated criteria [13] (along with the presence of serious mental illness) for civil commitment in Massachusetts: dangerousness to self, dangerousness to others, and inability to care for self. Perceived patient characteristics that were clearly related to these criteria (e.g., having a place to live, having support on the outside, able to work, crazy or sane) also strongly influenced the decision to petition. Further analysis of the study (our unpublished 1983 data) revealed the usefulness of the clinicians’ introspective reports about the relative importance of the various factors in the decision to petition. These self-reports gave insight into the clinicians’ decisions that was not available with the descriptive ratings alone. In particular, they showed that the psychiatrists took into account subjective and interpersonal factors which are cited as important predictive variables both in the clinical literature [14] and in empirical studies of suicide assessment [15] and other prognostic areas [16]. For example, the psychiatrists reported that a patient’s "likability" influenced them in the direction of being less likely to petition. This may be a valid consideration, since likability reflects both the strength of the therapeutic alliance and the patient’s presumed capacity to inspire loving support outside the hospital. Conversely, an unlikable patient would be expected to be at higher risk.

These findings demonstrated the value of asking two kinds of questions (both descriptive and introspective) to capture the various features of decision making. For this reason, as well as to provide a close comparison with the data on the psychiatrists’ decisions, we gave the judges in the present study the same type of questionnaire, one that elicited their assessments of the patients before them and of the weight they would assign to each of the factors contributing to their own decisions.

Method

Five Massachusetts district court judges, with an average of 7 years’ experience on the bench, participated in the study as a contribution to their continuing education. The respondents represented a sample of the estimated 20 to 30 judges involved in commitments in Massachusetts. They were asked to fill out an anonymous, four-part questionnaire immediately after every civil commitment hearing over which they presided during the 4-month study period. Part 1 consisted of demographic data concerning the patient, the judge, the petitioning facility, and the hearing. Part 2 (the rating scale) asked the judge to rate the patient on a 7-point scale for 26 variables (e.g., 1 = frightening, 7 = not frightening; 1 = able to take care of self, 7 = not able to take care of self). Part 3 (the impact scale) asked each judge to go back and assign a weighting signifying how important each of the 26 factors was in the decision to commit or not. They were told, "The number -100 means that this fact about the patient was strongly against commitment in your thinking, and +100 means that the fact is strongly for committing the patient, and 0 means the fact has no bearing at all on your decision." Part 4 was a 7-point scale for rating the ease with which the decision was reached.

The five judges returned 41 questionnaires. Of the 34 that reported a decision to commit, 32 were filled out sufficiently to be included in the data analysis. Of the six that reported a continuance of the case, two were adequately filled out. One questionnaire did not report any decision but was otherwise complete. Thus, 35 questionnaires were available for data analysis. With this data base the 26 factors were rank-ordered according to their reported relative mean impact on the commitment decision, ranging from those weighing most heavily in favor of commitment to those weighing most heavily against commitment. We had also intended to determine the correlation between the patient characteristic scales and the commitment decision (i.e., commit or release), as had been done in the study of psychiatrists’ decisions to petition. However, since none of the questionnaires reported a decision not to commit, such correlations were impossible. Instead, correlations were calculated between the judges’ ratings of patient competence and each of the other 25 rating scales, as well as between competence and diagnosis.

Results

For the total sample of 41 patients the commitment rate was 83%: 34 of the cases. There were six (15%) continuances and one (2%) unknown. Among the 35 questionnaires subjected to further analysis, the figures were 32 (91%) committed, two (6%) continued, and one (3%) unknown. Moreover, in most cases the judges did not find the decision difficult (responses to part 4 clustered at 1 and 2 on the 7-point scale). On the impact scales, where the judges rated the relative strength of the factors influencing them toward commitment, the three factors reported to have the greatest impact were whether the psychiatrist’s opinion was convincing, whether the patient would be a reliable outpatient, and whether the patient was able to take care of himself or herself (table 1). The third is one of the criteria specified by Massachusetts law. In general, factors having to do with compliance were more influential than those having to do with dangerousness, despite the centrality of dangerousness in the legal code. Finally, the three subjective factors grouped under judge’s reaction to patient in table 1 had the least impact here, in contrast with the study of psychiatrists’ decision making [4].

In this sample of 35 patients, all of whom were either committed or held temporarily pending further disposition, incompetence as perceived by the judges correlated strongly (p<.01) with three other patient characteristics. The highest correlation was with unpredictable (r=.53, df=31, p=.001), followed by not capable of working (r=.47, df=31, p=.003) and not likable (r=.47, df=26, p=.007). Incompetence did not correlate, however, with whether the patient was in distress, able to take care of himself or herself, or any of the factors listed under violence or suicidality.

A further analysis revealed that judgments of competence correlated with diagnosis, at least to the extent that schizophrenic patients were more likely to be seen as competent than were those with manic-depression, borderline personality disorder, or organic illness. The correlations with incompetence for these diagnostic groups were -.33 (df=30, p=.03), .25 (df=31, n.s.), -.12 (df=31, n.s.), and .16 (df=31, n.s.), respectively.

**TABLE 1. Relationship Between Five Judges' Perceptions of Patient Incompetence and Patient Characteristics in 35 Civil Commitment Hearings**

	Impact on Judges' Decisions		Correlation With Incompentence

Characteristic	Mean^a	Rank	r	df	Significance (one-tailed)

Violence of patient
No danger to others	66.5	7	-.02	30	n.s.
No extra security present	1.3	23	-.16	31	n.s.
No more than verbal threats	66.5	7	.14	29	n.s.
No recent violence	69.1	4	-.27	28	n.s.
Suicidality of patient
Not dangerous to self	57.3	10	-.14	28	n.s.
No self-destructive behavior (only threats)	50.0	11	-.14	25	n.s.
Self-harm only in remote past (if at all)	49.5	12	.03	27	n.s.
Patient's ability to care for self
Not able to take care of self	75.9	3	-.13	31	n.s.
No adequate place to live	39.4	3	-.13	29	n.s.
Not capable of working	38.3	16	.47	31	p = .003
Family or friends favor commitment	23.0	19	.39	23	p = .03
Predictions regarding patient
Would not be a reliable outpatient	82.0	2	.26	31	n.s.
Cannot be counted on to take medications	68.7	5	.18	31	n.s.
Poor prognosis	67.4	6	.15	31	n.s.
Appropriate treatment not available at institution	58.8	9	.01	31	n.s.
Judge's information
Expert witness (psychiatrist) not convincing	85.3	1	-.19	31	n.s.
Patient not well-known to judge	-8.7	26	.01	31	n.s.
Judge's opinion about patient's state
Not in distress	8.2	21	-.25	31	n.s.
Composed	26.9	17	-.43	31	p = .007
Cooperative	2.6	22	.37	29	p = .02
Denies illness	41.2	14	.39	29	p = .01
Seems incompetent	24.1	18	—	—	—
Unpredictable	48.9	13	.53	31	p = .001
Judge's reaction to patient
Appears well-groomed	-4.0	25	-.18	31	n.s.
Not frightening	9.7	20	-.21	31	n.s.
Not likable	0.0	24	.47	26	p = .003

^a-100 = strongly favoring release; +100 = strongly favoring commitment

Discussion

The data revealed in this preliminary study raise important questions for further investigation. The fact that almost all of the petitions for civil commitment were granted—none was denied outright—is striking. It should be seen, however, against a background of predominantly voluntary hospitalization for mental illness. Commitment is a low-frequency event. Unfortunately, the Department of Mental Health does not keep actuarial data that would allow us to determine the actual ratio of committed (other than on admission) to voluntarily hospitalized patients.

The high rate of commitments in our sample lends itself to several possible explanations. Our sample of respondents may be skewed; that is, judges who agree to participate in a study such as this may be those who are most likely to accept the reasoning of a psychiatrist who petitions for commitment. More generally, when a psychiatrist’s petition for commitment of a patient who has filed a 3-day paper eventuates in the patient’s release, it is frequently not by way of the judge’s denial of the petition. Rather, during the typical week-long delay between the petition and the hearing, the patient’s condition or the state of the doctor-patient relationship usually improves to the point where the psychiatrist may withdraw the petition or the patient may retract the request for discharge that precipitated the commitment process. The cases actually heard in court, then, represent a selected sample of intractable pathologies and irreconcilable differences.

Even so, our data do call into question whether the two-step commitment process is functioning as it should. Given the low frequency of petitions for commitment, psychiatrists appear to be setting too high a threshold for seeking commitment. They appear to be petitioning only when they feel sure that a judge will have solid grounds to commit rather than when there are good clinical reasons for bringing up the matter for resolution by the courts. Judges, probably correctly, sense this preselection of committable patients, which thus dominates the decision-making process and in practice forecloses the possibility of any outcome other than commitment.

Such second-guessing is understandable: clinicians generally dislike going to court and fighting for retention of patients and are thus likely to petition only when success is almost certain. This approach, however, prevents judges from becoming "calibrated" to degrees of dangerousness; the entire process suffers from loss of the socially valuable heuristic effect of judges grappling with hard cases.

Whether it is the judge who is swayed by psychiatric expertise or the psychiatrist who allows legalism to inhibit clinical judgment, a pattern of implicit collusion is suggested which resembles that found between probation officers and judges in sentencing decisions [17]. Additional support for this line of reasoning may be drawn, for example, from an unpublished 1984 study reported by Doucette et al. regarding probable cause hearings in relation to commitment in California. The authors noted, "A significantly large proportion of patients were found to meet the involuntary commitment criteria by the probable hearing officer, suggesting that hospital treating staff were judicious in their certification of individuals." We suggest that this "large proportion" reflects the same anticipation our psychiatrists showed of the population likely to be committed by the judges.

Further study drawing on larger and more representative samples of commitment hearings is needed to distinguish between this and more benign explanations of the high level of clinical-judicial agreement found here. In addition, the judges’ reliance on the credibility of psychiatric testimony and on predicted patient compliance with an outpatient regimen indicates the value of ongoing feedback on outcomes following commitment or release [1]. Finally, it would be informative in future studies to have patient characteristics rated by disinterested observers and then to correlate these ratings with the decisions of both psychiatrists and judges.

It is important that experienced jurists, in their interpretation of legally mandated criteria for commitment, resort to many of the same considerations found relevant by experienced clinicians (our unpublished data). Indeed, judges apparently keep in mind some of the same subjective factors when making determinations of competence (in a committed population) that clinicians consider when deciding whether a patient meets the legally mandated criteria for commitment. Diagnosis plays a subsidiary role in the judges’ assessments of competence. The positive correlation between schizophrenia and competence appears attributable to the predominance of paranoid schizophrenic patients seeking to leave the hospital. Of the factors that correlated most strongly with competence, predictability and capacity to work have clear clinical relevance. The unexpected correlation between competence and likability may simply reflect the fact that judges find it easier to identify with patients whom they perceive to be competent. But judges, although denying by self-report the actual impact of such factors on their decisions, may yet resemble clinicians in intuiting that a patient who appears likable stands a better chance to have an adequate support network outside the hospital than one who does not, that competence may fluctuate according to interpersonal context, and that loneliness may overwhelm the patient’s ability to execute wise decisions [18].

We may question in retrospect how the judges understood the item referring to competence when they judged virtually all of the patients in the study to be committable, i.e., by inference incompetent to give informed consent to hospitalization or discharge. Under these circumstances the judges may simply have been noting degrees of competence within the patient population to which they were exposed. Alternatively, they may have conscientiously separated their commitment decisions from their estimates of a patient’s capacity to make and implement life-sustaining choices. This implication of the data should reassure those who are concerned that the determination of committability and that of competence will be confounded under APA’s model commitment statute [3], where incompetence is made a criterion for committability.

Nonetheless, the judges in this study (like the authors of the model statute) appear to have recognized a deeper confluence between the issues of committability and competence. People who regularly come in contact with the mentally ill, whether in a clinical or judicial capacity, realize that both direct and indirect indicators of a person’s ability to function adequately in a normal social environment must be taken into account in the commitment decision. While following the letter of the law, judges necessarily interpret it with the aid of relevant clinical cues reminiscent of those stressed by the parens patriae model. Our study strongly suggests that the argument between supporters of the parens patriae and "police powers" models is far from resolved; both describe essential features of a patient’s condition. Parens patriae may be legislated away, but common sense and compassion alike keep the question of need for treatment, occasionally clothed as competence, unmistakably in view.

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