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Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those acquitted by reason of insanity, and, in some jurisdictions, individuals transferred from correctional facilities. This population has always been doubly stigmatized, cursed as “mad” and “bad.” For decades, any person with a mental disability involved in the criminal process at any level was automatically and permanently housed in a maximum-security forensic hospital, from which there was virtually no exit route (other than death).

A critical question that remains mostly unanswered for forensic hospitals is the extent of a patient’s perceived dangerousness that is required for such secure hospital commitment as opposed to what is acceptable prior to transfer to a non-secure facility. The question of dangerousness required has been and remains an important one in the minds of patients, those treating them, and the public at large. While some judges and legislators in the United States have begun to directly address the issue, a fair amount of ambiguity remains.

This ambiguity – along with the lack of agreement and clarification by the courts – may ultimately lead to a violation of a person’s right to be confined in the least restrictive alternative, which applies in all settings to all patients confined in hospitals.

This potential for the violation of patients’ rights is especially troubling because of recent developments in international human rights law, especially the ratification of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD). The CRPD is the most revolutionary international human rights document ever created that applies to persons with disabilities. It furthers the human rights approach to disability – endorsing a social model and repudiating a purely medical model – and recognizes the right of people with disabilities to equality in most every aspect of life.

In this paper, we consider “risk” in two ways: first, the need for clinicians to be able to assess a patient’s risk in both secure and non-secure facilities and second, the legal risk to clinicians if their assessment is wrong. We address “security” because an emphasis on safety is at the forefront of the minds of the public, as well as judges involved in cases where dangerousness is considered. We consider the impact of US Supreme Court decisions (Jackson v. Indiana and Olmstead v. L.C.) that, on paper, at least, suggest that automatic and permanent placement of all forensic patients (both those with psychosocial and intellectual disabilities) in maximum-security facilities is unconstitutional. We discuss “danger” as it is the basis for many statutes governing confinement of the mentally ill, and “dangerousness” itself is a particularly indefinable term in this context. And we discuss the potential impact of the CRPD on the rights of people with mental disabilities confined in psychiatric facilities worldwide.

We are then faced with the “clinician’s dilemma,” which occurs each time a treatment provider attempts to combine these previously-described topics into a formula to apply to his patients. This dilemma is made more obvious by the discordance in caselaw and statutes, as well as organized psychiatry’s reliance on dangerousness predictions that continue to be unreliable at best, and prejudicial at worst. We also consider all of the issues in question through the prism of therapeutic jurisprudence, in an effort to determine whether current policies are, in fact, therapeutic or anti-therapeutic, and whether or not they reflect the “ethic of care” that therapeutic jurisprudence mandates.


Indiana Journal of Law and Social Equality, Vol. 5, Issue 2 (2017), pp. 409-440