Pros and Cons of Outpatient Commitment for Sex Offenders

There have been many recent debates on the ethical and moral standpoints of civil commitment. These debates have stemmed from the potential chance of civil rights violations. One such debate is the pros and cons of mandatory outpatient commitment laws. Another debate is the impact of outpatient commitment on therapeutic relationships. A third topic is dilemmas that a therapist may face when reporting compliance. More recent hot debates include the civil commitment of sex offenders and the option of the death penalty for individuals labeled too dangerous to be released into society.

Pros and cons of mandatory outpatient commitment laws

Civil commitment is the legal process through which a mentally ill person is instructed by a court into treatment. The main issue with civil commitment involves the individual’s right to due process. To ensure due process, a panel of individuals must assess the individual’s level of danger. An individual who is not a danger to society or self must be released back into society. However, individuals who have mental illnesses and are found to be a danger to themselves or others can be civilly committed. Traditionally, the courts commit individuals to a mental institution. Conversely, as the times are changing more individuals are seeing outpatient care as a better option to inpatient care. The shift from inpatient to outpatient programs seems to be occurring with hopes of improving due process. Outpatient commitment laws permit a judge to mandate an individual to act in accordance with prescribed treatment (Harvard Health Publishing, 2008). Since outpatient laws have been establish there have been many pros and cons.

Pros

With outpatient care, individuals can stay in the community to receive treatment. In addition, individuals’ civil rights are less likely to be violated in an outpatient program. According to Kendra’s law, outpatient care is also less expensive, less restrictive and a more humane alternative to inpatient commitment (O’Connor, 2002). Furthermore, a study conducted by Duke researchers found outpatient commitment generated benefits such as a higher rate of treatment adherence, scarcer days spent in an institution and fewer violent outbreaks (Swartz, Swanson, Hiday Wagner, Burns, & Borum, 2001). These benefits, however, only occurred when it was preserved for at least six months and blended with reliable community mental health benefits (Swartz et al, 2001).

Cons

Although outpatient commitment has multiple pros, there are still some cons. Researchers at Duke University Medical Center found that most outpatient commitment laws are ambiguous and ineffective (Harvard Health Publishing, 2008). An example was the Virginia Tech tragedy in 2007. Seung-Hui Cho had an involuntary outpatient commitment order that wasn’t being enforced (Swartz, 2018). At that time Virginia did not enforce commitment laws, and mental health clinics lacked the resources and power to implement the order (Swartz, 2018). In addition, mental health clinics had a lack of understanding of commitment laws (Harvard Health Publishing, 2008). Unfortunately, clinicians do not always understand the obligations given to them by law. When outpatient commitment is order in states that lack resources and power, the phases required for implementation are sometimes vaguely defined and feebly enforced (Harvard Health Publishing, 2008). States can also choose if they enforce these laws and may not provide guidelines for implementation. Regrettably, state legislatures do not review civil commitment laws until tragic incidents occur. Another con of civil commitment law is the impact upon therapeutic relationships and ethical dilemmas.

Impact of outpatient commitment on therapeutic relationships

The enforcement of outpatient commitments may have a negative impact on the therapeutic relationship of those reporting on the compliance to such a commitment. There are a few reasons for this negative impact. One reason for this is the potential breach of confidentiality. For outpatient programs, staff may have to fill out compliance reports for the courts which can breach confidentially. Therapists build their relationships and gain the trust of their clients through confidently. If a therapist breaches their confidentiality without informing their client, it can harm the therapeutic relationship. Another reason is informed consent. Individuals forced into civil commitment programs are likely to lack informed consent since they are forced by the court. A person put into outpatient treatment should be informed of all components of their treatment. This includes the possibility of a breach in confidentially. The therapist should also inform their client that they have a responsibility to report to the judge. In outpatient programs, the therapist is required to inform the judge if clients missed appointments, refused to take medication as prescribed, or if there is no progress in treatment. Since the therapist reports to the judge he or she is viewed by the client as the bad guy, especially if they are rearrested or put into an inpatient setting.

Dilemmas with reporting compliance

When reporting compliance an individual may face ethical dilemmas. One dilemma involves confidentiality. As stated in the previous section confidentiality has a major impact on therapeutic relationships. However, when an individual is required to partake in outpatient programs, they know the therapist must report to the judge. To avoid the ethical problem of breach of confidentiality, a therapist can inform the patient of everything that needs to be reported. Perhaps the most significant ethical concern, however, is the violation of independence and civil rights grounded on the probability of future harm (Bazelon Center for Mental Health Law, 2002). Many individuals currently oppose outpatient civil commitment on the foundation that an individual who is competent and not presently harmful has the right to establish the course of his or her treatment (Bazelon Center for Mental Health Law, 2002).

Civil commitment of sex offenders

A more recent debate is the moral and ethical issue of civilly committing dangerous sex offenders. Some individuals believe sex offenders are not properly being assessed. Due to this improper assessment, they believe an offender’s rights are being violated. However, Meyers and Weaver (2006) state civil commitment for sex offenders has increased the need for accurate risk assessments. In addition, are offenders’ rights being violated if their case is viewed by a panel to assess their level of dangerousness. Would it be more moral or ethical to release them into society and civilly commit them after their second or third offense? For instance, during the next sentence, the judge can say after your twenty-year sentence you will be civilly committed since it has been proven that you are a danger to society.

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Another issue with the civil commitment of sex offenders is the violation of the fifth amendment. The US Constitution’s Fifth Amendment protects against double jeopardy. It states no one may be subject to multiple punishments for the same offense. Civil commitment violates this clause since it allows for an individual to receive additional punishment. However, the US supreme court ruled in Kansas v. Hendricks, that civil commitment does not violate the Constitution’s double jeopardy prohibition or its ban on ex post facto lawmaking (Kansas v. Hendricks, 1997). In addition, the U.S. Supreme court ruled in U. S. v. Comstock that legal code 4248 outlining civil commitment of a sexually dangerous person was constitutional under the umbrella of the “necessary and proper” clause of the U.S. constitution (U.S. v. Comstock, 2010).

Civil Commitment vs. the Death Penalty

One could argue that the death penalty is another option for dangerous offenders who have a high risk of re-offending if released to our communities. However, this violates the offenders right against cruel and unusual punishment. In addition, there is no accurate way to asses an offender’s level of dangerousness. Projections of future dangerousness have been exposed by researchers as unscientific and repetitively imprecise (Hamilton, 2011). Based on this research such predictions should not be used as a foundation on which to impose capital punishment. Due to the eight amendment, it is unconstitutional to execute an individual based on a likelihood that they will continue to offend. How can society put an individual to death due to the likelihood that they will recidivate? It is more moral to civilly commit a person based on their chance of recidivism then executing them.

Conclusion

Outpatient commitment laws have many pros and cons. However, it was found that the cons outweigh the pros based on nature. In addition, this paper found outpatient commitment has a negative impact on therapeutic relations. Some of the reasons for the negative impact on therapeutic relations cause ethical dilemmas. However, the biggest dilemma is a violation of civil rights. It has been found that civil commitment of sex offenders is a violation of their rights since it is based on the likelihood of reoffending. In addition, it was found that it is more ethical to civilly commit an individual rather than to oppose capital punishment based on the likelihood of reoffending. Hopefully, in the next decade, mental health and legal professionals can reexamine civil commitment laws and make them less restrictive.

References 

• Bazelon Center for Mental Health Law (2002). Position statement on involuntary commitment. Retrieved from http://www.bazelon.org/issues/commitment/positionstatement.html.
• Hamilton, M. (2011). Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws. Temple Law Review, 83, 697–756.
• Harvard Health Publishing. (2008, August). Involuntary outpatient commitment. Retrieved from https://www.health.harvard.edu/newsletter_article/Involuntary_outpatient_commitment.
• Kansas v. Hendricks, 521 U.S. 346 (1997).
• O’Connor, E. (2002). Is Kendra ‘s Law a Keeper? How Kendra ‘s Law Erodes Fundamental              Rights of the Mentally Ill. Journal of Law and Policy, 11(1), 312–368. Retrieved from  https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article 1313&context=jlp 
• Swartz, M. S., Swanson, J. W., Hiday, V. A., Wagner, H. R., Burns, B. J., & Borum, R. (2001).              A Randomized Controlled Trial of Outpatient Commitment in North Carolina. Psychiatric Services, 52(3), 325–329. doi: 10.1176/appi.ps.52.3.325
• Swartz, M. S. (2018, December 11). Outpatient commitment: When it improves patientoutcomes. Retrieved from https://www.mdedge.com/psychiatry/article/63078/outpatientcommitment-when-it-improves-patient-outcomes.
• United States v. Comstock, 560 U.S. 126 (2010).
• Weaver, C. M., & Meyer, R. G. (2006). Law and Mental Health: a case-based approach. New              York, NY: GUILFORD.