Civil commitment involves involuntary assessmentand treatment of the mentally ill. The application ofcivil commitment can be viewed as a therapeuticmanagement strategy directed towards the goal ofmaximising benefits and limiting the potential forharm. This process requires the balancing of poten-tial benefits and harms as they accrue to patients andothers. Even with this therapeutic intent in the

application of civil commitment, there is the realitythat patients may perceive the process of enactmentof civil commitment as being coercive (forced uponthem against their will). This sometimes justifiableperception may be detrimental to the therapeuticintent of maximising benefit over potential harm forthe individual patient.

There is a rudimentary, yet growing literature, onhow clinicians might therapeutically enact civil com-mitment [1]. This literature focuses on reducing thepotential harm to patients by limiting their perceptionof coercion. Procedural justice involves strategiesthat enhance patients’ experiences of involvement indecision-making processes and this has the effect oflimiting their perception of coercion.

One goal of this paper is to review the literatureoutlining the significance of procedural justice strat-egies which, as far as we are aware, has not been

What is the role of procedural justice in civilcommitment?

Brian G. McKenna, Alexander I.F. Simpson, John H. Coverdale

Objective: To determine best practice management strategies in the clinical application of civil commitment.Method: All relevant literature on the topics of ‘civil commitment’, ‘coercion’ and ‘procedural justice’ were located on MEDLINE and PsychLIT databases andreviewed. Literature on the use of Ulysses contracts and advance directives inmental health treatment was integrated into the findings.Results: Best practice evidence that guides management strategies is limited to thetime of enactment of civil commitment. Management strategies involve enhancingthe principles of procedural justice as a means of limiting negative patient perceptionof commitment. In the absence of evidence-based research beyond this point ofenactment, grounds for the application of the principles of procedural justice are supported by reference to ethical considerations. Ulysses contracts provide an additional method for strengthening procedural justice.Conclusions: Procedural justice principles should be routinely applied throughoutthe processes of civil commitment in order to enhance longer term therapeutic outcomes and to blunt paternalism.Key words: civil commitment, coercion, involuntary treatment, procedural justice,Ulysses contracts.

Australian and New Zealand Journal of Psychiatry 2000; 34:671–676

John I.F. Coverdale, Associate Professor; Alexander H. Simpson,Senior Lecturer (Correspondence)

Department of Psychiatry and Behavioural Science, Faculty ofMedicine and Health Science, University of Auckland, Private Bag92-019, Auckland 1020, New Zealand. Email: aif.simpson@auckland.ac.nz

Brian G. McKenna, Senior Lecturer

School of Nursing and Midwifery, Auckland University ofTechnology, Auckland, New Zealand

Received 15 September 1999; revised 8 December 1999; accepted15 December 1999.

previously accomplished. This evidence-basedresearch is presently confined to the enactment ofcivil commitment at the time of hospital admission.There is a dearth of evidence-based research thatguides the ongoing use of involuntary treatment.Given this dearth, ethical considerations becomeeven more important in guiding clinical manage-ment. We will also show how seeking a patient’spreference on how they would wish to be treated inadvance of an illness episode (a ‘Ulysses’ contract) isa helpful procedural justice strategy.

The role of civil commitment

The state has two justifications for interveningcoercively in the lives of its citizens. Under ‘policepowers’, the state has a right to protect citizens fromthe damaging behaviours of others. With referenceto parens patriae (State paternalism), the state has aresponsibility to intervene in the lives of people onthe grounds that they are unable to make decisionsadequately for themselves [2].

Civil commitment has elements of both policepowers and parens patriae. Civil commitment maybe enacted when a patient’s autonomous decision-making ability is assessed as impaired by mentalillness. In such circumstances, mental illness is per-ceived to render patients devoid of the competence tomake decisions on their own behalf [3,4]. However,civil commitment in most contemporary jurisdictionscan only by invoked when this inability is coupledwith a risk to self or others. These dual considera-tions give rise to the potential ethical conflict of‘walking the tightrope’ between the juxtaposed clin-ical roles of therapist and agent of social control [5].

This ethical conflict is long standing [6] despite thepresent emphasis in mental health legislation onpatient autonomy [7]. The difficulty of grapplingwith the interface between loss of autonomy and‘dangerousness’ understandably triggers in someclinicians a paternalistic response. Paternalismimplies the routine subordination of patient auton-omy in clinical decision making in order to avoidpossible adverse outcomes. The clinical challenge isto define an approach to the application of civil com-mitment by incorporating ethical imperatives.

Patients’ perception of coercion

The enactment of involuntary assessment and treat-ment of the mentally ill leaves a significant numberof patients feeling that this experience was forced

upon them against their volition (i.e. they feelcoerced). However, legal status is only a ‘bluntindex’ of this sense of coercion. A significant minor-ity of involuntary patients felt that they chose tocome to hospital on their own volition; conversely, asignificant minority of voluntary patients (about10%) felt that they were coerced when they werehospitalised [8–12].

An important question in regard to research on thepatient’s experience of coercion is whether these sub-jective experiences are reflective of what actuallytakes place. One difficulty is in observing the eventsthat occur. To counter this difficulty, a method hasbeen devised to construct the ‘most plausible factualaccount’ based on files and on interviews withpatients, clinicians, and family members. Patients’perceptions most closely approximated the con-structed accounts and therefore constituted a relativelyvalid version of what happens [13]. Furthermore, thepatients’ experiences of coercion have been opera-tionalised in the form of a validated and reliable psychometric measure [4].

There remains a lack of clarity as to whetherpatients’ experiences of coercion are linked to thera-peutic outcome or to longer-term harmful effects. Forexample, it was postulated that the experience ofcoercion places the therapeutic alliance between clin-ician and patient in jeopardy by creating mistrust.This mistrust in turn encouraged a sense of patientalienation which was manifested internally as angeror depression, or externally as a negative response to mental health services [8,14]. The latter involvesrejection of the psychiatric definition of the‘problem’, rejection of mental health services, non-compliance with medication and discontinuity ofcare in the community [15,16]. Gardner [4] indicatedthat the sense of alienation may even lead patients toencourage others to avoid mental health services.While there is a dearth of evidence supporting theseconcerns, they are intuitively important nevertheless.These concerns add to the ethical imperative to establish strategies to reduce patient experience ofcoercion whenever possible.

Communication styles

There are four styles of communication which maypotentially be used during civil commitment. Thesehave been categorised as the use of persuasion,inducements (promises), threats and force [17].Persuasion is the most common approach used inacute mental health care settings [18]. Along with

PROCEDURAL JUSTICE IN CIVIL COMMITMENT672

promises, persuasion focuses on patients’ beingbetter off if they accept admission. The use of bothpersuasion and promises do not impact on the experience of coercion, and constitute acceptablecommunication styles during civil commitment.

Styles of communication that have been shown tosignificantly increase patients’ experiences of coer-cion are the use of threat and force. The use of thesestyles lead patients to feel that the consequences forthem will be worse if they resist hospitalisation[10,11]. The use of threat and force are significantpredictors of patients’ experiences of coercion. Theuse of force includes the use of approved ‘calmingand restraint’ techniques. McKenna [12] found thatthose patients who experienced physical restraint bystaff immediately following admission reported asignificantly higher level of coercion. These resultsindicate a priority to avoid threat and force wheneverpossible.

However, even if clinicians find it necessary toadopt such styles of communication, other factorsmay be additionally influential on patients’ experi-ences of coercion. These include the involvement ofthe police for example [12]. There is also evidencethat indicates that patients with a high level of education experience a greater sense of coercion[12,19,20], perhaps reflecting an expectation bymore educated people that their own preferences willbe recognised in the process of admission to hospital.One limitation in this area of research, however, isthat little is known about the interactions betweenthese variables and specific communication stylesadopted by treating clinicians.

The influence of ‘procedural justice’ oncoercion

The use of threats and force is antithetical to theconcept of procedural justice. This concept evolvedfrom research on participants in legal proceedings.This research suggests that it is too simplistic toassume that participation is only influenced by self-interest in the outcome of such events. Participantsare psychologically affected by their inclusion orotherwise in just processes subsequent to theoutcome decision. Inclusion in legal proceedings thatare experienced as fair has the effect of making anyfinal decision more acceptable to participants[21,22]. These findings based on legal proceedingsare transferable to decision making between healthprofessionals and patients within medico-legal pro-ceedings such as civil commitment [23].

Procedural justice places obligations on health professionals to fulfil their statutory responsibilitiesunder mental health legislation by including patientsin fair decision-making processes. This involves thepatient believing that the process of civil commit-ment is free from the value biases and vested inter-ests of the decision-maker, and includes legalmechanisms for reviewing bad decisions [10].

The experience of procedural justice is multi-faceted. It involves patients’ perceptions of the fair-ness of the process of enactment of civil commitment(referred to as ‘fairness’). Patients experience proce-dural justice when they feel they are able to expresstheir views (‘voice’) and that these views are seri-ously considered (‘validation’). In experiencing pro-cedural justice, patients feel that they are treated withdignity and respect (‘respect’) and politeness andconcern (‘motivation’) [21]. Experiencing proceduraljustice also includes being given accurate and rele-vant information about the procedures in which thepatient is involved (‘information’) [24]. All of theseaspects are also subsumed within the doctrine ofinformed consent.

Professional adherence to procedural justice has thepotential to ameliorate conflicts of interest byacknowledging the social status of patients and byenhancing their psychological feelings of self-esteem,self-worth and a sense of personal security [21,23,25].

Procedural justice has been applied to the medico-legal process of civil commitment in qualitativeresearch [26]. Lidz quantified the link between pro-cedural justice and coercion by surveying voluntaryand involuntary psychiatric admissions to hospitalsin Virginia and Pennsylvania [10]. This study focusedon the use of reliable and validated psychometricscales and found a strong inverse correlation betweenperception of procedural justice and perception ofcoercion, for both voluntary and involuntary admis-sions [10]. This strong inverse correlation has beenfound in replicated studies in the USA [9,19,20] andin New Zealand [12].

This research, however, is dogged by methodo-logical issues including measurement validity, selec-tion bias and difficulty in the construction ofprospective longitudinal designs [8,27]. Anothermethodological limitation is that we know little aboutpatients’ perceptions of coercion beyond the time ofadmission. However, the process of civil commit-ment can extend into longer-term involuntary inpa-tient treatment and involuntary outpatient treatmentprogram. Despite these concerns, the evidence indi-cates that procedural justice serves as a potential

B.G. MCKENNA, A.I.F. SIMPSON, J.H. COVERDALE 673

buffer against patients’experiences of coercion for bothinvoluntary and voluntary admissions to hospital.Others have suggested that the link between perceptionof procedural justice and perception of coercion is con-clusive and that, therefore, there is a need to considerexperimental research which enhances proceduraljustice in reducing patient perception of coercion [1].

Multidisciplinary approach to proceduraljustice

Psychiatrists have been perceived to be the mostcoercive professional group followed by generalpractitioners and nurses [28]. This finding is under-standable given that psychiatrists are most involvedin decisions about civil commitment. Nurses aremore involved in the 24-h care of involuntarily hos-pitalised patients. They are more likely to instigatede-escalation techniques including the use of force[29]. Each group of health professionals involved inthe process of civil commitment needs to identifytheir own strategies for response to countering poten-tial patient experiences of coercion. This will requirethe application and modification of the principles ofprocedural justice to their own unique roles.

This does not mean that each health professionalgroup should employ their own interpretation of procedural justice principles in isolation from theapproach of others. For example, in the context ofcivil commitment in New Zealand, the legislationitself provides a vehicle for the integration of varyingapproaches through regular clinical reviews [30].Such processes should allow health professionalgroups to bridge ideological and philosophical professional boundaries, and to present a coordi-nated response in the use of procedural justice principles.

Linked to these issues is the increasing interest inthe legal concept of therapeutic jurisprudence [3,31].This is a form of analysis of the structure and prac-tice of law in a particular field and allows a criticalanalysis as to whether it achieves therapeutic or anti-therapeutic ends. Much of the above discussion over-laps with such an analysis. The concept of proceduraljustice can therefore be extended beyond health professionals to other professional groups (such aspolice, judges and lawyers) involved in civil commit-ment [12].

Judicial hearings are an inherent component in thechecks and balances of clinical decision makingduring civil commitment. Judicial hearings enable

potential clarification and modification of theprocesses put in place by clinicians to benefitpatients. However, there is the potential for healthprofessionals to perceive legal procedures as adver-sarial, rather than as a legitimate challenge which canfacilitate clarification. Health professionals shouldfacilitate a cooperative, rather than an adversarialrelationship with legal professionals [32]. Given thepotential inherent hazards for patients in hearingtheir case aired in public, it is imperative that all pro-fessional groups present a coordinated approach toenhancing procedural justice principles preliminarilyto and throughout hearings, and during debriefingfollowing judicial processes.

Ulysses contracts

A possible additional procedural justice strategy isbased on the concepts of Ulysses contracts andadvanced directives. In a Ulysses contract consent formeasures to avoid risk that is given when a patient’sdecision-making is less impaired is applied to subse-quent situations in which decision-making becomesmore impaired [33,34]. A Ulysses contract should besought in advance of the possibility of a patienthaving a recurrence of an illness episode. Theemphasis in this process is on the clinician providinginformation, entering into constructive dialogue andseriously listening to what the patient has to saywhen the patient is well [35]. At the point of impaireddecision-making, the contract serves the purpose ofassisting patient decision-making by respectfullyreminding the patient of the earlier explicit prefer-ence which was declared when less impaired by psychiatric illness. Ulysses contracts serve the principles of procedural justice.

Ulysses contracts have important features incommon with advance directives. Advance directivesare designed to establish a person’s preference fortreatment should that person become incompetent inthe future or become unable to communicate thosepreferences to treatment providers [35–38]. Advancedirectives are now legally available in a number ofUSA jurisdictions, although their application has been infrequently evaluated [37]. Ulysses contractsalso have important features in common with sec-ondary preventive integrated care strategies that attendto early warning signs in the outpatient managementof chronic schizophrenia [39]. However, we are notaware of literature that has formally applied these concepts to the process of civil commitment.

PROCEDURAL JUSTICE IN CIVIL COMMITMENT674

The application of Ulysses procedures should notbe viewed as a measure to justify less considerationof a patient’s preference at the time of compulsorytreatment. Ulysses contracts are reversible, whereasadvanced directives connote less reversibility.Furthermore, assuming patients are incompetent atthe time of civil commitment may understate theircompetency. The appropriate clinical ethical strategyis to assess a patient’s change in decision and, byreminding the patient of their earlier preferences, toattempt to maximise their decision-making capacity.In the absence of specific advanced directive legis-lation, Ulysses contracts are not legally binding, butshould be respectfully considered when making latertreatment decisions.

Conclusions

In this paper we have emphasised the clinical andethical importance of procedural justice principles inthe enactment of civil commitment. These principlesinvolve allowing patients to have their say, listeningto them seriously, providing patients with informa-tion and treating them with concern, fairness andrespect.

However, civil commitment involves a process andnot a one-off event. Furthermore, in accordance withthe model of treatment in the ‘least restrictiveenvironment’, the process of civil commitmentextends beyond involuntary inpatient treatment intocommunity-based treatment programs. The processalso extends into voluntary therapeutic relationshipsthat occur outside of the legal parameters associatedwith civil commitment, but in which civil commit-ment might become a management strategy when thepatient has other illness episodes. In the absence ofevidence-based criteria beyond the admission phase,grounds for the universal application of proceduraljustice principles are supported by reference toethical considerations including the use of Ulyssescontracts. We recommend that all professionalgroups involved in the processes of civil commitmentadopt the principles of procedural justice.

There are two important ethical justifications forthis recommendation. First, close attention should bepaid to the implementation of procedural justice principles is likely to advance longer-term thera-peutic outcome. Second, procedural justice shouldenhance patient decision-making capacity and auton-omy. The autonomy-enhancing strategies of proce-dural justice are essential in blunting paternalism inthe clinical management of civil commitment.

References

1. MacArthur Foundation Research Network on Mental Healthand the Law. The MacArthur Coercion Study: executivesummary. http://ness.sys.virginia.edu/macarthur/coercion98.html, 1998.

2. Shah SA. Mental disorder and the criminal justice system:some overarching issues. International Journal of Law andPsychiatry 1989; 12:231–244.

3. Wexler D, Winick B. Essays in therapeutic jurisprudence.Durham, NC: Carolina Academic Press, 1991.

4. Gardner W, Hoge S, Bennett N et al. Two scales for measuringpatient’s perception of coercion during mental hospital admission. Behavioral Sciences and the Law 1993; 11:307–321.

5. Rosenman S. Psychiatrists and compulsion: a map of ethics.Australian and New Zealand Journal of Psychiatry 1998;32:785–793.

6. Bridge C, Bridge G. Civil commitment: a multi-disciplinaryanalysis. Victoria University of Wellington Law Review1984; 14:145–157.

7. Bell S, Brookbanks W. Mental health law in New Zealand.Wellington: Brookers, 1998.

8. Monahan J, Hoge S, Lidz C et al. Coercion and commitment: understanding involuntary mental hospitaladmission. International Journal of Law and Psychiatry1995; 18:249–263.

9. Nicholson R, Ekenstam C, Norwood S. Coercion and theoutcome of psychiatric hospitalization. InternationalJournal of Law and Psychiatry 1996; 19:201–217.

10. Lidz C, Hoge S, Gardner W et al. Perceived coercion inmental hospital admission. Archives of General Psychiatry1995; 52:1034–1040.

11. Hoge S, Lidz C, Eisenberg M et al. Perceptions of coercionin the admission of voluntary and involuntary psychiatricpatients. International Journal of Law and Psychiatry 1997;20:167–181.

12. McKenna BG, Simpson AIF, Laidlaw TM. Patient perception of coercion on admission to acute psychiatricservices: the New Zealand experience. International Journalof Law and Psychiatry 1999; 22:143–153.

13. Lidz C, Mulvey E, Hoge S et al. Factual sources ofpsychiatric patients’ perceptions of coercion in the hospital

admission process. American Journal of Psychiatry 1998;155:1254–1260.

14. Kaltiala-Heino R, Laippala P, Salokangas K. Impact of coercion on treatment outcome. International Journal ofLaw and Psychiatry 1997; 20:311–322.

15. Rogers A. Coercion and ‘voluntary’ admission: an examination of psychiatric patient views. BehavioralSciences and the Law 1993; 11:259–267.

16. Shannon P. Coercion and compulsory hospitalisation: Somepatients’ attitudes. Medical Journal of Australia 1976;2:798–801.

17. Lidz C, Mulvey E, Arnold R, Bennett NS, Kirsch BL.Coercive interactions in a psychiatric emergency room.Behavioral Sciences and the Law 1993; 11:269–280.

18. Harris D, Morrison E. Managing violence without coercion.Archives of Psychiatric Nursing 1995; 9:203–210.

19. Hiday V, Swartz M, Swanson J, Wagner HR. Patient perception of coercion in mental hospital admission.International Journal of Law and Psychiatry 1997;20:227–241.

20. Cascardi M, Poythress N. Correlates of perceived coercion during psychiatric hospital admission. InternationalJournal of Law and Psychiatry 1997; 20:445–458.

B.G. MCKENNA, A.I.F. SIMPSON, J.H. COVERDALE 675

21. Lind E, Tyler T. The social psychology of procedural justice.New York: Plenum, 1988.

22. Rohl K, Machura S, eds. Procedural justice. Aldershot:Ashgate, 1997.

23. Tyler T. The psychological consequences of judicialprocedures: implications for civil commitment hearings.Southern Methodist University Law Review 1992;46:443–445.

24. Lind E, Kanfer R, Earley P. Voice, control and proceduraljustice: instrumental and non-instrumental concerns in fairness judgements. Journal of Personality and SocialPsychology 1990; 59:952–959.

25. Tedeschi J, Felson R. Violence, aggression and coerciveactions. Washington: American Psychological Association,1994.

26. Bennett N, Lidz C, Monahan J et al. Inclusion, motivationand good faith: the morality of coercion in mental hospitaladmission. Behavioral Sciences and the Law 1993;112:295–306.

27. Hoyer G. Clients’ perception of coercion: a research perspective. Research in Community and Mental Health1999; 10:101–121.

28. Hoge S, Lidz C, Mulvey E et al. Patient, family and staffperceptions of coercion in mental health hospital admissions. Behavioral Sciences and the Law 1993;11:281–293.

29. Gijbels H. Mental health nursing skills in an acute admission environment: perceptions of mental health nursesand other mental health professionals. Journal of AdvancedNursing 1995; 21:460–465.

30. Department of Health. A user’s guide to the mental health(compulsory assessment and treatment). Wellington, NewZealand: Department of Health, 1992.

31. Wexler D. Therapeutic jurisprudence in clinical practice.American Journal of Psychiatry 1996; 153:453–455.

32. Simpson AIF, McCarthy S. Roles, processes and hearings:making the Mental Health (CAT) Act work. Mental Healthand the Law 1996; 4:51–56.

33. Coverdale J, Bayer T, McCullough L, Chervenak FA.Respecting the autonomy of chronically mentally ill womenin decisions about contraception. Hospital and CommunityPsychiatry 1993; 44:354–356.

34. Coverdale J, McCullough L, Chervenak F, Bayer T. Weeks S. Clinical implications of respect for autonomy inthe psychiatric treatment of pregnant patients with depression. Psychiatric Services 1997; 48:209–212.

35. Backlar P. The longing for order: Oregon’s medical advancedirective for mental health treatment. Community MentalHealth Journal 1995; 31:103–108.

36. Appelbaum P. Advance directives for psychiatric treatment.Hospital and Community Psychiatry 1991; 42:983–984.

37. Backlar P, McFarland B. A survey on use of advance directives for mental health treatment in Oregon. PsychiatricServices 1996; 27:1387–1390.

38. Screbnik D, La Fond J. Advance directives for mental health treatment. Psychiatric Services 1999; 50:919–926.

39. Falloon I, Held T, Roncone R, Coverdale JH, Laidlaw TM.Optimal treatment strategies to enhance recovery fromschizophrenia. Australian and New Zealand Journal ofPsychiatry 1998; 32:43–49.

PROCEDURAL JUSTICE IN CIVIL COMMITMENT676