Physician's Arrest: The Hidden—And Dangerous—World of U.S. Psychiatric Detention

Physician’s Arrest: The Hidden—And Dangerous—World of U.S. Psychiatric Detention

When presented with emergent psychiatric cases, physicians often face an ethical dilemma: in those who are uncooperative or unwilling to receive medical treatment, patients’ desires often conflict with their best interests. While the law typically gives deference to physicians in assessing patients in psychiatric distress, providing them with extensive authority to involuntarily commit patients to medical treatment, there exists little judicial oversight over such detentions. For professionals tasked with improving human health, a well-intentioned desire to help patients with mental illness can conflict with a doctor’s actual legal authority. Thus, while physicians are experts in medically diagnosing patients, there nevertheless exists a danger in giving health care professionals—who are trained in human maladies, not rights—the authority to unilaterally curtail patients’ freedom of movement.

As outlined in the American Medical Association’s Code of Medical Ethics, “Physicians’ primary ethical obligation is to their individual patients,” but “physicians also have a long-recognized responsibility to participate in activities to protect and promote the health of the public.”[1] Much like doctors, the state must also weigh these two, sometimes conflicting, obligations. The doctrine of parents patriae addresses the former as the “inherent power and authority of the state to protect persons who are legally unable to act on their own behalf,” allowing the government to act on the behalf of psychiatric patients who are unable to act in their own best interest.[2] A second legal principle, police power, allows the state to protect its citizens’ cumulative interests (like personal safety) more broadly, and is derived from the 10th Amendment to the U.S. Constitution.[3]

Over the past century, courts have restricted the state’s ability to medically detain individuals to those that present a danger to themselves or others; but at the same time, in New York, physicians maintain that authority. The modern litmus test for such detentions was established nationwide in the landmark 1975 Supreme Court case O’Connor v. Donaldson. Kenneth Donaldson, a Florida resident with paranoid schizophrenia, was held in a psychiatric hospital for 15 years, showing symptoms of mental illness but never homicidal or suicidal intent. His requests for release were routinely denied by his psychiatrist, prompting Donaldson to go to court against his doctor. The Supreme Court ruled in favor of Donaldson, stating “[t]hat the State has a proper interest in providing care and assistance to the unfortunate goes without saying. But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution.”[4]

As a result of this ruling, the Court instituted nationwide what is now known as the “dangerousness” standard, which means that a “[s]tate cannot constitutionally confine without more [reason] a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” The state’s police power, thus, allows it to commit an individual who poses a danger to other members of society, but the state’s parens patriae power (its authority to protect citizens unable to protect themselves) applies only insofar as the state seeks to protect the life of the mentally ill citizen. It has no obligation, or authority, to demand treatment to improve that life once it no longer poses a threat to itself or others.

Even within the confines of the “dangerousness” standard, however, the law endows physicians with wide-ranging powers to commit those who meet that standard. Unlike detentions made by the police, after which detainees are processed through a criminal justice system, psychiatric detentions often require no more than a physician’s professional opinion. In New York, for example, official involuntary commitments last up to two months and require an application to the county court under the Mental Hygiene Law (MHY), but physicians nevertheless have the authority to detain a patient for up to 18 cumulative days without any judicial review unless affirmatively demanded by the patient.

Patients can fall into this medical and legal limbo if they are considered “emergency” psychiatric cases, and a number of entities—be they police officers, psychiatrists, or EMS professionals—can demand that such patients be transported to hospitals for immediate evaluation. Through New York’s Comprehensive Psychiatric Emergency Program (CPEP), a single physician can detain a patient for up to 24 hours, after which a second physician can extend the detention to 72 hours (MHY § 9.40)[5]. After three days in the Emergency Room, the patient can be admitted involuntarily to an inpatient ward for fifteen days under a similar “emergency” standard with the assent of just two physicians (MHY § 9.39)[6].

Physicians, by virtue of their profession, are charged with improving human health; the Constitution, however, has no such mandate. As an impassive document that outlines the extent of governmental authority, its interests are decidedly different than physicians’. Conflating these roles by implicitly giving physicians the responsibility to interpret constitutional limits on citizen detention is a dangerous status quo. What is best for a patient—mandating treatment for bipolar disorder, for example—might not be constitutionally sound. This principle of “beneficence,” a physician’s moral imperative to do all in their power to help patients, places doctors in a near-irreconcilable ethical conundrum. To discharge a patient from the emergency room who is mentally ill, but not actively a threat to herself or others, is a physician’s only legal option. Yet mandating treatment for such a patient, forcing her into observation, medication, and therapies, would be the most medically beneficent act.

Thus, despite being legal and constitutional, a hospital’s power to unilaterally detain patients without judicial oversight raises difficult questions. For example, aside from a patient verbally threatening to harm herself or others, there is no formal and universal means of determining whether a patient meets the Supreme Court’s “dangerousness” standard. While the 1979 Supreme Court case Addington v. Texas held that the psychiatric detentions must meet a legal standard of “clear and convincing evidence,” the court also conceded that such judgements are often complicated by the imprecision of psychiatric diagnoses. As Chief Justice Warren E. Burger wrote, such decisions are “to a large extent based on medical ‘impressions’ drawn from subjective analysis and filtered through the experience of the diagnostician.”[7]

While courts have, in recent years, required that psychiatric detentions follow the 14th Amendment’s due process demands, it is important that individuals understand that all Americans, regardless of psychiatric status, have the right to judicial review when medically detained. By implementing policies that more widely require such oversight, instead of simply allowing it, lawmakers can ensure that both public health and individual freedoms are protected. But such policies require expensive investments in personnel and bureaucratic infrastructure, which makes their widespread implementation unlikely. When the law’s typical power brokers, law enforcement and the courts, take a backseat to physicians with little legal training, remaining vigilant of one’s constitutional rights is critically important.

[1] AMA. AMA Code of Medical Ethics. (2016), online at (visited 30 Jul. 2017).

[2] “Parens Patriae.” 7 Gale Encyclopedia of American Law, 3rd ed., p 399-400. (2010).

[3] LII / Legal Information Institute. Police Powers. LII (2017), online at (visited July 30, 2017).

[4] O’Connor v. Donaldson, Justia (1975).

[5] “New York Consolidated Laws, Mental Hygiene Law – MHY § 9.40.” Findlaw, online at (visited July 30, 2017).

[6] “New York Consolidated Laws, Mental Hygiene Law – MHY § 9.40.” Findlaw, online at (visited July 30, 2017).

[7]  Addington v. Texas, Justia (1979).