1 See infra note 47 and accompanying text.

2 See infra note 44 and accompanying text.

3 See infra Part III.B.2.

4 42 U.S.C.A. §§ 3601-3619, 3631 (West 1977 & Supp. 1992).

5 Pub. L. No. 101-336, 104 Stat. 327 (codified as amended in §§ 42 U.S.C. 12101 - 12213 and in scattered sections of 29 U.S.C.A. and 47 U.S.C.A.).

6 See, e.g., Thomas, Gutheil Be Paul Applebaum, Rotting with Their Rights on: Constitutional Theory and Clinical Reality in Drug Refusal by Psychiatric Patients, 7 Bull. Am. Acad. Psychiatry & L. 306 (1979).Google Scholar

7 See E. Fuller Torrey, Nowhere to go: The Tragic Odyssey of the Homeless Mentally III 29-34 (1988); see also Rael J. Isaac & Virginia C. Armat, Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally III (1990).

8 See Alexander D., Brooks, Outpatient Commitment for the Chronically Mentally III, in Improving Mental Health Services: What the Social Sciences Can Tell us 118 (David Mechanic ed., 1987)Google Scholar (“[C]ommunity living for the mentally ill has not failed because of inherent unworkability but rather because it has not been adequately implemented.“); see also Michael L., Perlin, Competency, Deinstitutionalization, and Homelessness: A Story of Marginalization, 28 Hous. L. Rev. 63, 88–93 (1991).Google Scholar

9 See Governor's Special Commission on Consolidation of Health and Human Services Institutional Facilities, Actions for Quality Care: A Plan for the Consolidation of Stat. Institutions and the Provision of Appropriate Care Services (1991) [hereinafter Actions for Quality Care]; Commonwealth of Massachusetts Department of Mental Health, Developing a System of Public Managed Care: A Progress Report (1993) [hereinafter Progress Report].

10 Id.

11 Torrey, supra note 7, at 5.

12 Message from the President of the United States, Feb. 5. 1963, reprinted in Henry A. Foley and Steven S. Sharfstein, Madness and Government 164 (1983).

13 Social reformer Dorothea Lynde Dix is widely credited as the leader of this reform movement. In the mid-1800s, her efforts resulted in the establishment of more than thirty state mental hospitals. John E. B., Myers, Involuntary Civil Commitment of the Mentally III: A System in Need of Change, 29 Vill. L. Rev. 367, 373 (1984).Google Scholar

14 Indeed, even today much about serious mental illness remains a mystery. Only recently, for example, have researchers uncovered evidence that clearly establishes that schizophrenia is a brain disease. See Richard L., Suddath et al., Anatomical Abnormalities in the Brains of Monozygotic Twins Discordant for Schizophrenia, 322 New Eng.J. Med. 789, 792 (1990).Google Scholar

15 Torrey, supra note 7, at 140. This figure amounted to roughly half of all the hospital beds in the country at that time. Id. at 82.

16 See, e.g., Albert Deutsch, The Shame of the States (1948). Deutsch's chilling expose details the appalling conditions that he discovered during tours of a number of state mental institutions. The following passage is typical of what he saw:

Id. at 41-42.

17 Antipsychotic medications are also frequently referred to as neuroleptic or psychotropic medications. Among the most common are Thorazine (chlorpromazine), Haldol (haloperidol) and Prolixin (fluphenazine). Ellen W. Clayton, From Rogers to Rivers: The Rights of the Mentally III to Refuse Medication, 13 Am. J.L. & Med. 7 (1987).

18 Id. at 9. In 1955, New York became the first state to adopt a complete treatment program with antipsychotic drugs. ISAAC & ARMAT, supra note 7, at 48.

19 Myers, supra note 13, at 390.

20 Pub. L. No. 88-164, 77 Stat. 282 (1963).

21 Foley & Smarfstein, supra note 12, at 164.

22 ISAAC & ARMAT, supra note 7, at 139.

23 From 1955 to 1965, the average annual decrease in state mental hospital populations was 1.75 percent. After lawsuits against state hospitals began in the early 1970s, the pace of deinstitutionalization increased dramatically. From 1970 to 1975, state mental hospital populations decreased an average of almost 11 percent per year. Id. at 102.

24 See, e.g., Bruce J., Ennis and Thomas R., Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693, 696 (1974)Google Scholar (“[There is no evidence that psychiatric opinions and terminology clarify rather than confuse the issues in a civil commitment proceeding … .“); Robert, Plotkin, Limiting the Therapeutic Orgy: Mental Patients’ Right to Refuse Treatment, 72 Nw. U. L. Rev. 461, 463 (1978)Google Scholar (“[P]resumption of reliance upon medical authority“ is legally unsound, since evidence of a “reliable … system of diagnosis, treatment, and care” is “tenuous at best.“).

Such anti-establishment views were commonplace in intellectual debates of the 1960s. Lawyers obtained ammunition for their arguments from “new left” psychiatrists, who insisted that mental illness did not even exist, but was merely an expression of society's intolerance for unpopular behavior. See, e.g., Thomas Szasz, The Myth of Mental Illness (1961).

25 Perlin, supra note 8, at 100.

26 David, Mechanic, The Challenge of Chronic Mental Illness: A Retrospective and Prospective View, 37 Hosp. & Community Psychiatry 891, 892-93 (1986);Google Scholar Torrey, supra note 7, at 151.

27 ISAAC & ARMAT, supra note 7, at 139. For a state-by-state breakdown on deinstitutionalization, see Torrey, supra note 7, at 219-20.

28 Most of the leading cases were filed in federal court under 42 U.S.C. § 1983, alleging deprivations of liberty by state authorities “under color of law.“

29 A legal basis for this “right” was first advanced as a way to secure decent care for mental patients in Morton Birnbaum, The Right to Treatment, 46 A.B.A.J. 499, 503 (1960).

30 325 F. Supp. 781 (M.D. Ala. 1971), hearing ordered 334 F. Supp. 1341 (M.D. Ala. 1971), orders entered, 344 F. Supp. 373 (M.D. Ala. 1972), 344 F. Supp. 387 (M.D. Ala 1972), aff'd in part, rev'd and remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).

31 Myers, supra note 13, at 396; see also Wyatt, 503 F.2d at 1310-11.

32 Wyatt, 325 F. Supp at 785.

33 Wyatt, 334 F. Supp. at 1343-44.

34 In O'Connor v. Donaldson, 422 U.S. 563 (1975), the Supreme Court declined to decide whether involuntarily committed persons have the right to treatment recognized in Wyatt. Id. at 573. In Youngberg v. Romeo, 457 U.S. 307 (1982), the Court held that an involuntarily committed, mentally retarded patient has a constitutionally protected liberty interest in the minimally adequate training required to assure safety and freedom from undue restraint. Id. at 319. However, the Court again refused to answer the question whether such a person has a constitutional right to “training” (or treatment) per se. Id. at 318.

35 Myers, supra note 13, at 398.

36 After the State failed to promulgate a constitutionally adequate plan to reform Alabama's hospitals, the court issued an order that dictated a list of patients’ rights and set standards for patients per room, toilet facilities, showers, common areas, laundry services, housekeeping, dining areas, physical plant, and nutrition. It further mandated individualized treatment plans and established minimum staffing ratios. See Wyatt, 344 F. Supp. at 379-86.

37 ISAAC & ARMAT, supra note 7, at 130, 132.

38 Mary L., Durham & John Q., LaFond, The Empirical Consequences and Policy Implications of Broadening the Statutory Criteria for Civil Commitment, 3 Yale L. & Pol'y Rev. 395, 397 (1985).Google Scholar

39 Clifford D., Stromberg & Alan A., Stone, A Model State Law on Civil Commitment of the Mentally III, 20 Harv. J. On Legis. 275, 275 (1983).Google Scholar

40 For a discussion of the origins and development of the parens patriae power, see Myers, supra note 13, at 380-88.

41 See John Stuart Mill, on Liberty 13 (Stefan Cellini ed., 1989) (1859).

42 349 F. Supp. 1078 (E.D. Wise. 1972), vacated and remanded, 414 U.S. 473 (1974), order on remand, 379 F. Supp. 1376 (1974), vacated and remanded, 421 U.S. 957 (1975), order reinstated on remand, 413 F. Supp. 1318 (1976).

43 Lessard, 349 F. Supp. at 1095. The Supreme Court partially embraced the need for “dangerousness“ as a due process requirement for civil commitment in O'Connor v. Donaldson, unanimously holding that evidence of mental illness alone is not sufficient to commit a person involuntarily to a mental hospital “in simple custodial confinement.” O'Connor v. Donaldson, 422 U.S. 563, 575 (1975). The Court declined, however, to say whether the state may confine a nondangerous mentally ill individual for the sole purpose of treatment. Id. at 573. Instead, it narrowly held, based on the facts of the case before it, that, in situations in which treatment is not provided to a patient, due process demands a showing of either dangerousness (to oneself or others) or inability to care for oneself in the community before the state is justified in depriving the person's liberty. Id. at 575-76. Lessard's requirement that dangerousness be proven beyond a reasonable doubt was rejected by the Supreme Court. Addington v. Texas, 441 U.S. 418, 427-31 (1979) (holding clear and convincing standard sufficient for commitment proceedings).

44 These safeguards included a right to a prompt hearing with reasonable notice of the state's “charges,” the right to a jury trial and representation of counsel, a privilege against selfincrimination, and the exclusion of hearsay evidence. Lessard, 349 F. Supp. at 1090-93, 1097- 1103.

45 Id. at 1095-96.

46 For a listing of state statutes and federal court cases that reflect this trend, see John Q. La, Fond, An Examination of the Purposes of Involuntary Civil Commitment, 30 Buff. L. Rev. 499, 499 n.4, 500 n.5 (1981).Google Scholar

47 Steven J., Schwartz & Cathy E., Costanzo, Compelling Treatment in the Community: Distorted Doctrines and Violated Values, 20 Loy. L.A. L. Rev. 1329, 1344 (1987).Google Scholar

The new statutes adopted in the wake of Lessard generally recognize three types of “danger“ as the legal standards for civil commitment: (1) danger to self; (2) danger to others; and (3) “gravely disabled” by mental illness. Darold A. Treffert, The Obviously III Patient in Need of Treatment: A Fourth Standard for Civil Commitment, 36 Hosp. & Community Psychiatry 259, 260 (1985). See, e.g., Cal. Welf. & Inst. Code § 5150 (West 1984). The “gravely disabled” standard encompasses individuals who are dangerous to themselves because they are unable to provide for basic needs (such as nourishment or shelter) or to protect themselves in the community. It is used in roughly two-thirds of the states. Leonard S. Rubenstein, Treatment of the Mentally III: Legal Advocacy Enters the Second Generation, 143 Am. J. Psychiatry 1264, 1265 (1986).

48 As of 1982, 47 jurisdictions had statutes requiring selection of the least restrictive alternative. Schwartz & Costanzo, supra note 47, at 1353 n.112.

49 Brooks, supra note 8, at 117.

50 See Torrey, supra note 7, at 109, 143.

51 ISAAC & ARMAT, supra note 7, at 4-5.

52 Perlin, supra note 8, at 94. (quoting former New York mayor, Edward I. Koch, Lunacies of Government: Legal, Bureaucratic, Ideological, 200 N.Y.L.J. 1 (1988)).

53 Brooks, supra note 8, at 118.

54 No. 76-4423-F (E.D. Mass. Dec. 6, 1978), reprinted in 3 Mental Disability L. Rep. 45 (1979), enforced 544 F. Supp. 1069 (D. Mass. 1982), aff'd as modified 786 F.2d 16 (1st Cir. 1986).

55 Robert L. Okin, Brewster v. Dukakis: Developing Community Services Through Use of a Consent Decree, 141 Am. J. Psychiatry 786, 787 (1984). The plaintiffs relied on the first, eighth, ninth, and fourteenth amendments to the Constitution, several federal statutes, and the Massachusetts Mental Health Code as the legal basis for their argument. Id.

56 Id.

57 Brewster was the first in a series of lawsuits aimed at improving care for the mentally ill and mentally retarded in Massachusetts. In each, the Dukakis administration opted to work with the plaintiffs to fashion comprehensive remedies (memorialized in consent decrees) rather than “defend the indefensible.” Ricci v. Okin, 537 F. Supp. 817, 820 (D. Mass. 1982).

58 Brewster, 544 F. Supp. at 1069.

59 Brewster, 3 Mental Disability L. Rep. at 46-47.

60 Id. at 46.

61 Id.

62 Between 1978 and 1983, the community services budget went from $1.8 million to $19.5 million. Okin, supra note 55, at 787.

63 See generally William A., Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L.J. 635 (1982);Google Scholar Paul J., Mishkin, Federal Courts as State Reformers, 35 Wash. & Lee L. Rev. 949 (1978).Google Scholar

64 See Alison, Bass & Toni, Locy, New Policies Hit the Mentally III, Boston Globe, Dec. 15, 1991,Google Scholar at Al (estimating that 2000 mentally ill individuals live on the streets of Boston and Cambridge — out of a total of 5000 to 6000 homeless people). Governor Weld's privatization commission concedes that hundreds of people have been needlessly institutionalized for want of sufficient community alternatives. See infra note 85 and accompanying text.

65 In fact, in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), the Court stated as much when it noted that it had “never found that the involuntarily committed have a constitutional ‘right to treatment.’ “ Id. at 16 n.12.

66 Federal judges hold their office for life “during good behavior,” and their salaries cannot be reduced during their term in office. U.S. Const, art. Ill, § 1. The Framers thought that these protections were essential to preserving the independence of the federal judiciary. These protections were extended, however, on the theory that, because the judiciary has “no influence, over either the sword or the purse” and “no active [role] whatever” in political decisionmaking, it was the “least dangerous” of the three branches. The Federalist No. 78, at 425 (Alexander Hamilton) (E. H. Scott ed., 1894).

67 Fletcher, supra note 63, at 693. For example, the Wyatt court imposed its detailed standards on state officials only after they “failed to promulgate and implement a treatment program satisfying minimum medical and constitutional requisites.” Wyatt, 344 F. Supp. at 375; see also Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218 (1964) (affirming a school desegregation order where the county closed the school system for five years rather than integrate it); Hutto v. Finney, 437 U.S. 678 (1978) (upholding the district court's supervisory order where state prison conditions still violated the eighth and fourteenth amendments after ten years of litigation).

68 Okin, supra note 55, at 788.

69 In 1975, a federal district court ordered the federal government and the District of Columbia to create a comprehensive system of community-based services. Dixon v. Weingberger, 405 F. Supp. 974 (D.D.C. 1975). More than fifteen years later, such a system was still not in place. In 1991, a new five-year plan was negotiated, again requiring the District of Columbia to develop the services mandated by the original order. Mental Health Law Project, Summary of Activities, 1990-1991 7 (1992).

70 Actions for Quality Care, supra note 9, at 4-6.

71 Mark, Schlesinger & Robert, Dorwart, Ownership and Mental Health Services: A Reappraisal of the Shift Toward Privately Owned Facilities, 311 New Eng. J. Med. 959, 960 (1984).Google Scholar

72 Bass & Locy, supra note 64, at 28.

73 See generally David Osborne & Ted Gaebler, Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector (1992).

74 Id. at 14.

75 Beacon Hill Institute, Privatization of Human Services: Panacea or Placebo? 6 (1993)[hereinafter Privatization of Human Services].

76 For a brief discussion of Massachusetts's plans for quality assessment, see Progress Report, supra note 9, at 31-32. A critique of the Commonwealth's past experience in overseeing contracts with human services providers is offered in Privatization of Human Services, supra note 75, at 46-52.

77 For the argument that the Massachusetts privatization plan does not create a sufficiently competitive market, and proposals on overcoming its anticompetitive aspects, see id. at 56-57, 74-78, 97-100.

78 Osborne & Gaebler, supra note 73, at 83-84.

79 Privatization of Human Services, supra note 75, at 21-22.

80 Id. at 4. Accordingly, Massachusetts established the “Office of Competitive Bidding” and charged it with assembling and submitting bids on behalf of state employees. Progress Report, supra note 9, at 23-24.

81 See Osborne & Gaebler, supra note 73, at xix.

82 Anthony F., Lehman et al., The Quality of Life of Chronic Patients in a State Hospital and Community Residences, 37 Hosp. & Community Psychiatry 901, 905 (1986)Google Scholar (finding that 77 percent of community residents interviewed were satisfied with their living situation, compared with only 32 percent of inpatients).

In a similar survey taken one year after its privatization experiment began, the Massachusetts Department of Health and Human Services found an “overwhelming majority” of patients who were shifted to community settings believed that they were receiving better care. Don, Aucoin, Most Relocated Patients Belter Off, State Poll Finds, Boston Globe, Jan. 21, 1993, at 61.Google Scholar

83 Perlin, supra note 8, at 96 (citing Charles A., Kiesler, Mental Hospitals and Alternate Care: Noninstitutionalization as Potential Public Policy for Mental Patients, 37 Am. Psychologist 349 (1982)Google Scholar, a review of 10 studies showing that “[i]n no case were the outcomes of hospitalization more positive than alternative treatment” in the community).

84 Massachusetts joined the legislative and judicial trend recognizing a right to treatment in the least restrictive alternative in Commonwealth v. Nassar, 406 N.E.2d 1286, 1291 (Mass. 1980); see also Mass. Gen. Laws Ann. ch. 123, § 4 (West Supp. 1992) (entitling each person committed to a state institution to a periodic review of “all possible alternatives to continued hospitalization“); Mass. Regs. Code tit. 104 § 15.03 (2)(d) (1988) (requiring all mental health programs to provide services that are “least restrictive of the client's freedom“).

85 As of January 1991, the total adult inpatient census at all Massachusetts Department of Mental Health (“DMH“) facilities was 2021. Actions for Quality Care, supra note 9, at 2. It was estimated that approximately 700 of those patients would meet the criteria for transfer into community settings within the next year. Another 319 were considered appropriate for transfer into either the mental retardation system, nursing homes, or other nursing facilities. Id. at 3. One thousand persons remained for treatment in DMH inpatient facilities.

86 Progress Report, supra note 9, at 4C.

87 Mike Gorman, Every other Bed 43 (1956).

88 Richard, Kindleberger, Siting Homes for Disabled Debated; As the State Moves Hospital Patients into Neighborhoods, Local Officials Voice Concern, Boston Globe, Oct. 10, 1992, at 41.Google Scholar

89 42 U.S.C.A. §§ 3602(h), 3604(f) (West Supp. 1992); H.R. Rep. No. 100-711, 100th Cong., 2d. Sess. 18 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2179. Before passage of the Act, the most common forms of neighborhood opposition were zoning laws that effectively prohibited the establishment of group homes. Congress intended that Act forbid such practices “that have the effect of limiting the ability of [handicapped] individuals to live in the residence of their choice in the community.” Id. at 2185. Several states, including Massachusetts, have enacted parallel anti-discrimination provisions into law. See, e.g., Mass. Gen. Laws Ann. ch. 151B § 4 (West 1982 & Supp. 1993).

90 Rhodes v. Palmetto Pathway Homes, Inc., 400 S.E. 2d 484, 486 (S.C. 1991) (refusing to enforce a restrictive covenant that forbade use of property as a group home for the mentally ill).

91 The Massachusetts Attorney General has taken such a hard line approach, which no doubt helped DMH exceed its initial goal of 700 community placements by over 100 beds. Facing a state-filed lawsuit, one city decided to reverse its policy of taxing group homes at a higher rate and rescinded a zoning amendment that effectively barred group homes. Jordana, Hart, Group Home Opposed; Opponents Aim to Block Plan to House Mentally III, Boston Globe, Sept. 20, 1992, South Weekly, at 1.Google Scholar

92 Actions for Quality Care, supra note 9, at 2.

93 Progress Report, supra note 9, at 8. See also Schlesinger & Dorwart, supra note 71, at 964 (presenting evidence that private hospitals screen mentally ill persons on the basis of ability to pay).

94 Three methods are available to accomplish this initiative: (1) conversion of underutilized medical/surgical beds into secure, psychiatric units; (2) placing CMHC acute care services under a general hospital license; and (3) contracting for state access to underutilized, existing psychiatric beds. Actions for Quality Care, supra note 9, at 36-37. In order to ensure continued access to private hospital beds, the Special Commission recommends that contracts between the private providers and the Commonwealth include: (1) a 24- hour admissions requirement; (2) zero-reject clauses; (3) a demand for willingness to enter into a long-term contractual arrangement; and (4) extensive quality control and contract compliance mechanisms. Id. at 37-38.

95 Id. at 5.

96 According to the Special Commission report, Massachusetts acute care hospitals have an average occupancy rate of 62 percent. Id. at 36.

97 Id. at 2. Once privatization is fully implemented, approximately 3955 DMH clients would reside in private community placements, while only 1000 would receive care directly from the Commonwealth in its institutional inpatient system. Id. at 4.

98 Id. at 3.

99 Id. at i. Of those, 2021 were DMH clients. Id. at 2.

100 Id. atii.

101 Id. at 9. 102 Dolores, Kong, Hospital Closures Feared Under State Plan, Boston Globe, Oct. 17, 1992, at 13, 15.Google Scholar

103 In the first year of privatization, Massachusetts reduced state hospital “full-time equivalent” positions by 1,706. Progress Report, supra note 9, at 3. Many of the employees laid olf by the state were rehired by the now-private clinics at lower salaries. Bass & Locy, supra note 64, at 28.

104 42 U.S.C.A. § 1396d (a)(x)(13) (West 1992).

105 Federal Medicaid regulations deny federal financial participation (“FFP“) for any state services (1) provided to individuals living in public institutions; or (2) to patients between the ages of 22 and 65 in an “institution for mental disease.” 42 C.F.R. § 436.1004(a)(2) (1992). An “institution for mental disease” is defined as a hospital or other institution that is primarily engaged in providing diagnosis, treatment, or care of persons with mental illness. 42 U.S.C.A. § 1396d (i) (West 1992).

It must be noted, however, that the cost of care in private hospitals is roughly twice that of state-run facilities — $600 to $800 per day compared to $300 to $400. Alison, Bass & Toni, Locy, Hidden Costs Could Undermine State's New Mental Health System, Boston Globe, Dec. 16. 1991, at 1, 16.Google Scholar Therefore, while federal reimbursement makes care in private hospitals cost-effective for the states, there is n o net savings. Rather, taxpayers simply shoulder the burden of higher overall cost through federal taxes. Id.

106 This figure represents savings from the beginning of privatization in 1991 through fiscal year 1994. DMH's estimate is based on: (1) $62 million in reduced operating costs from the closure of the state hospitals; (2) a one-time $43.7 capital avoidance that would have been needed to renovate the closed facilities; and (3) $29.1 million in savings from increased revenues a nd reduced group insurance costs due to staffing reductions. Progress Report, supra note 9, at 3 , 4A. The total savings ($134.8 million) is offset by an investment of $65.8 million in the development of expanded community-based services to arrive at the “ net privatization savings” of $69 million. Id.

107 Actions for Quality Care, supra note 9, at ii.

108 Id. at 29.

109 Bass & Locy, supra note 64, at 28.

110 Paul S., Applebaum, Outpatient Commitment: The Problems and the Promise, 143 Am. J. Psychiatry 1270 (1986).Google Scholar

111 Id.; Myers, supra note 13, at 424.

112 Id.; Virginia A., Hiday & Teresa L., Scheid-Cook, The North Carolina Experience with Outpatient Commitment: A Critical Appraisal, 10Google Scholar Int ‘l J. L. & Psychiatry 215, 215-16 (1987).

113 ISAAC & ARMAT, supra note 7 , at 319 (citing Jeffrey Geller Et al., The Massachusetts Experience with Funded Deinstitutionalization: A Decade of Promises, Products and Problems Under the Brewster V. Dukakis Consent Decree 17 (1989)). 114 Phyllis Solomon et al., Discharged State Hospital Patients’ Characteristics and Use of Aftercare: Effect on Community Tenure,

141 Am. J. Psychiatry 1566, 1566 (1984). The numbers rise to 40 to 50 percent one year after release and 65 to 75 percent three to five years after release. Id.

115 See supra notes 92-97 and accompanying text.

116 See supra note 105.

117 Id.

118 See supra note 101 and accompanying text.

119 Recall that the Massachusetts plan provided for the creation of 300 acute care beds in private general hospitals. Actions for Quality Care, supra note 9, at 36.

120 See Alison, Bass & Toni, Locy, Overload Feared in Mental Health Plan, Boston Globe, Dec. 17, 1991, at 1, 30.Google Scholar

121 Id.

122 Alison, Bass & M.E., Malone, Mental Health Shift: Less Saving, More Pain, Boston Globe, Aug. 9, 1992, at 1.Google Scholar

123 Id.

124 Id. The Massachusetts Department of Mental Health disputes this claim, insisting that it tracked every patient discharged from DMH facilities since the inception of privatization for 90 days. According to its records, only two such patients were confirmed to be homeless. Progress Report, supra note 9, at 20.

125 Jilliane T., Hinds, Involuntary Outpatient Commitment for the Chronically Mentally III, 69 Neb. L. Rev. 346, 367 (1990).Google Scholar

126 ISAAC & ARMAT, supra note 7, at 295.

127 See John Nicholas, Suhr, Jr., Cruzan v. Director, Missouri Department of Health: A Clear and Convincing Call For Comprehensive Legislation To Protect Incompetent Patients’ Rights, 40 Am. U.L. Rev. 1477 (1991).Google Scholar

128 Donald H. J., Hermann, Autonomy, Self Determination, the Right of Involuntarily Committed Persons to Refuse Treatment, and the Use of Substituted fudgment in Medication Decisions Involving Incompetent Persons, 13 Int'l J. L. & Psychiatry 361, 378 (1990).Google Scholar

129 W. at 376. See, e.g., Lane v. Candura, 376 N.E.2d 1232, 1235-36 (Mass. App. Ct. 1978) (holding that a patient has the right to refuse life-saving, amputation surgery since “[t]he law protects her right to make her own decision to accept or reject treatment, whether that decision is wise or unwise“).

130 Schloendorff v. Society of N. Y. Hosp., 105 N.E.2d 92, 93 (N.Y. 1914) (Cardozo, J.).

131 See, e.g., Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417, 426 (Mass. 1977) (profoundly retarded patient); In re Quinlan, 355 A.2d 647 (N.J. 1976), cert, denied, 429 U.S. 922 (1976) (comatose patient). The constitutional basis for the right to refuse treatment is the unenumerated right to privacy first recognized by the Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (recognizing a constitutional right to privacy among the “penumbra” of specific guarantees of the Bill of Rights). The decision in Quinlan was the first to extend the right of privacy to include the right to refuse medical treatment. Quinlan, 355 A.2d at 663. Recently, in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990), and Washington v. Harper, 494 U.S. 210 (1990), the Supreme Court confirmed that there is a constitutionally protected liberty interest in refusing unwanted medical treatment.

132 421 N.E.2d 40 (Mass. 1981).

133 Id. at 51 n.9.

134 Id. at 55.

135 Id. at 51.

136 Id. at 56 (citation omitted). The court in Roe enumerated six factors to guide the lower courts in their efforts to discover the preferences of the incompetent individual: (1) the individual's expressed preferences regarding treatment; (2) his [or her] religious beliefs; (3) the impact upon the [patient's] family; (4) the probability of adverse side effects; (5) the consequences if treatment is refused; and (6) the prognosis with treatment. Id. at 57.

137 Alexander D., Brooks, The Right to Refuse Antipsychotic Medications: Law and Policy, 39 Rutgers L. Rev. 339, 353 (1987).Google Scholar

138 Realistic estimates place the rate of tardive dyskinesia at 10 to 20 percent of all patients using drugs for more than a few months, and at 20 to 40 percent among the elderly. Id. at 350 (citing Tardive Dyskinesia: Summary of a Task Force Report of the American Psychiatric Association, 137 Am. J. Psychiatry 1163 (1980)). Other common side effects include akithisia (uncontrollable restlessness and agitation), akinesia (reduced ability to engage in spontaneous physical movement or mental activity), and pseudo-Parkinsonism. Typical emotional side effects include listlessness, apathy, and depression. In addition, many patients suffer from unwanted physical problems, ranging from blurred vision and dry mouth to sexual dysfunction. Id. at 348-49; see also Clayton, supra note 17, at 14; Plotkin, supra note 24, at 475-77.

139 In re Guardianship of Roe, 421 N.E.2d 40, 53 (Mass. 1981).

140 “Likelihood of serious harm” is a statutorily defined term in Massachusetts that establishes when a person is considered dangerous enough to be involuntarily committed or treated against his will. As in almost all states, the law encompasses three kinds of dangerous patients: (1) those who present a substantial risk of harm to themselves; (2) those who present a substantial risk of harm to others; and (2) those who are so gravely disabled by mental illness that they are unable to protect themselves in the community without a substantial risk of injury. Mass. Gen. Laws Ann. ch. 123, § 1 (West Supp. 1992).

141 Roe, 421 N.E.2dat 61.

142 Id. at 57.

143 Although the holding in Roe was expressly limited to cases involving nonhospitalized patients, the SJC extended the right to refuse medication to involuntarily committed mental patients in Rogers v. Comm'r, 458 N.E.2d 308 (Mass. 1983). See also Reise v. St. Mary's Hosp. and Medical Ctr, 243 Cal. Rptr. 241 (Ct. App. 1987); People v. Medina, 705 P.2d. 961 (Colo. 1985) (en banc); In re Boyd, 403 A.2d 744 (D.C. 1979); Jarvis v. Levine, 418 N.W.2d 139 (Minn. 1988); Opinion of the Justices, 465 A.2d 484 (N.H. 1983); Rivers v. Katz, 495 N.E.2d 337 (N.Y. 1986); Matter of K.K.B., 609 P.2d 747 (Okla. 1980); Wisconsin ex rel. Jones v. Gerhardstein, 400 N.W.2d 1 (Wise. Ct. App. 1986).

144 Roe, 421 N.E.2d at 51 (quoting Saikewicz, 370 N.E.2d at 435).

145 In Washington v. Harper, the Court expressly recognized a “significant” liberty interest in the right to refuse antipsychotic treatment under the fourteenth amendment. 494 U.S. at 221- 22. At the same time, however, it also held that due process does not require a judicial hearing before a state may treat a mentally ill prisoner with antipsychotic drugs against his will. Id. at 231.

146 After receiving the SJC's answers to its certified questions in Rogers v. Okin, 738 F.2d 1 (1st Cir. 1984), the First Circuit declared that Massachusetts law requires “greater protection of relevant liberty interests than the minimum adequate to survive scrutiny under the Due Process Clause.” Id. at 8 (citations omitted).

Rennie v. Klein, 720 F.2d 266 (3d. Cir. 1983) (en banc), on remand from 458 U.S. 119 (1982), involved New Jersey regulations giving attending physicians the power to treat involuntarily committed patients against their will, subject to in-house review by the hospital medical director. The Third Circuit held that this medical professional model satisfied the requirements of federal due process. Id. at 269-70.

The Supreme Court had remanded Rennie for further consideration in light of Youngberg v. Romeo, 457 U.S. 307 (1982), in which the Court held that, for the purposes of the fourteenth amendment, a medical professional's judgment is presumed valid unless it is a “substantial departure from accepted professional judgment, practice, or standards.” Id. at 323; see also United States v. Charters, 863 F.2d 302 (4th Cir. 1988) (en banc), cert, denied, 494 U.S. 1016 (1990) (holding that professional judgment provides all the process due a legally institutionalized mental patient); United States v. Bryant 670 F. Supp. 840 (D. Minn. 1987) (federal due process only demands that courts ensure that professional judgment was exercised); R.A.J, v. Miller, 590 F. Supp. 1319 (N.D. Tex. 1984) (two-tiered medical review process deemed adequate in light of Youngberg).

147 See Harper, 494 U.S. at 231.

148 ISAAC & ARMAT, supra note 7, at 310 (quoting E. Fuller Torrey Et al., Care of the Seriously Mentally III: A Rating of Stat. Program. 100 (1988)).

149 Id.

150 See, e.g., ISAAC & ARMAT, supra note 7, at 331-34; Myers, supra note 13, at 418-33; Treffert, supra note 47, at 262. These recent appeals for involuntary community care were preceded by a similar call made nearly twenty-five years ago in Beatrice K., Bleicher, Compulsory Community Care for the Mentally III, 16 Clev. Marshall L. Rev. 93 (1967).Google Scholar

151 Some state statutes explicitly authorize courts to order involuntary care in the community. See, e.g., Va. Code Ann. § 37.1-67.3 (Michie Supp. 1992). In other states, the authority for outpatient commitment is implicit in statutes that require that courts order patients to follow the least restrictive alternative form of treatment. See, e.g., Del. Code Ann. tit. 16, § 5010 (2) (1983). For a state-by-state survey of statutes authorizing involuntary, outpatient commitment, see Schwartz & Costanzo, supra note 47, at 1405-29.

152 See, e.g., Mont. Code Ann. § 53-21-183 (1991).

153 See, e.g., Ariz. Rev. Stat. Ann. § 36-540.A (Supp. 1992).

154 See, e.g., Iowa Code Ann. § 229.15(2) (West 1985).

155 Ingo, Keilitz & Terry, Hall, State Statutes Governing Involuntary Outpatient Civil Commitment, 9 Mental & Physical Disability L. Rep. 378, 378-79 (1985).Google Scholar

156 The descriptive phrase, “preventive commitment,” was first coined in Susan, Stefan, Preventive Commitment: The Concept and Its Pitfalls, 11 Mental & Physical Disability L. Rep. 288 (1987).Google Scholar In this Note, the term distinguishes reformed commitment laws in states like North Carolina, Georgia, and Hawaii from the more generic outpatient commitment and conditional release laws in other states. More importantly, the phrase, “preventive commitment,” best captures the goal of the statutory reforms under consideration. See infra Part IV.A.

157 See, e.g., Ala. Code § 22-52-10(a)(3) (1990).

158 Brooks, supra note 8, at 120.

159 Hiday & Scheid-Cook, supra note 112, at 216-17.

160 N.C. Gen. Stat. § 122C-263(d) (Supp. 1992) (emphasis added). Any person with knowledge of a person in need of treatment may file a petition for commitment. Upon that filing, an order is typically issued to have the respondent patient taken into custody for examination by a physician (or eligible psychologist). Id. § 122C-261. The examining physician then determines whether the statutory criteria for outpatient commitment are met, or whether inpatient commitment (because of current dangerousness) or release is more appropriate. Id. § 122C-263.

If the criteria are met and the physician recommends outpatient commitment, a judicial hearing is held within 10 days to determine whether clear, cogent, and convincing evidence supports an outpatient commitment order. Id. § 122C-267. Because the restrictions on liberty that are associated with outpatient commitment are less severe, the patient does not have the right to appointed counsel nor the right to cross-examine the physician at this hearing. Id.

If an outpatient commitment order is issued, it is valid for 90 days, and can be renewed following a rehearing. Id. § 122C-271, 275.

161 Id. § 1220-3(27).

162 See Ga. Code Ann. §37-3-1(12.1) (Michie Supp. 1992); Haw. Rev. Stat. §334-121 (Supp. 1992); see also Tenn. Code Ann. § 33-6-201 (Supp. 1992).

163 N.C. Gen. Stat § 122C-263 (d)(l)(b-c); Haw. Rev. Stat. § 334-121(2)-(4).

164 N.C. Gen. Stat. § 122C-263(d)(l)(c); Haw. Rev. Stat. § 334-121(4).

165 Jeffrey L. Geller, Rights, Wrongs, and the Dilemma of Coerced Community Treatment, 143 Am. J. Psychiatry 1259, 1262 (1986).

166 N.C. Gen. Stat. § 122C-263(d)(l)(d); Haw. Rev. Stat. § 334-121(5).

167 Myers, supra note 13, at 379; Treffert, supra note 47, at 260.

168 Edward P., Mulvey et al., The Promise and Peril of Involuntary Outpatient Commitment, 42 Am. Psychologist 571, 577 (1987).Google Scholar

169 Rubenstein, supra note 47, at 1266.

170 One commentator has labeled the differing perspectives as a clash between the “right to liberty” and the “right to get well.” Id. at 1265.

171 Geller, supra note 165, at 1262 (quoting David L. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev. 897, 907 (1975)).

172 Myers, supra note 13, at 425.

173 Hiday & Scheid-Cook, supra note 112, at 224-27; see also Virginia A., Hiday and Teresa L., Scheid-Cook, A Follow-up of Chronic Patients Committed to Outpatient Treatment, 40 Hosp. & Community Psychiatry 52, 56–57 (1989)Google Scholar[hereinafter, Hiday and Scheid-Cook, Follow-up]; Geller, supra note 165. But see Ben, Bursten, Posthospital Mandatory Outpatient Treatment, 143 Am. J. Psychiatry 1255, 1257 (1986)Google Scholar (concluding that Tennessee's post-hospital, mandatory, outpatient treatment law had not succeeded in reducing hospital readmissions).

174 Stefan, supra note 156, at 295.

175 Schwartz & Costanzo, supra note 47, at 1403; see supra notes 38-40 and accompanying text.

176 Hinds, supra note 125, at 370; Bursten, supra note 173, at 1256.

177 In re Guardianship of Roe, 421 N.E.2d 40, 52 (Mass. 1981).

178 Schwartz & Costanzo, supra note 47, at 1347.

179 Hiday & Scheid-Cook, supra note 112, at 222.

180 See Laurence H. Tribe, American Constitutional Law § 15-2, at 1306-07; § 16-4, at 1449-50 (2d ed. 1988).

181 Mulvey et al., supra note 168, at 579.

182 Stefan, supra note 156, at 289.

183 See, e.g., Rogers v. Commissioner, 458 N.E.2d 308, 314 (Mass. 1983); Rivers v. Katz, 495 N.E.2d 337, 342 (N.Y. 1986).

184 N.C. Gen. Stat. § 122C-263(d)(l)(d); Haw. Rev. Stat. § 334-121(5).

185 Hermann, supra note 128, at 381.

186 Bursten, supra note 173, at 1256.

187 Schwartz & Costanzo, supra note 47, at 1382.

188 Id.

189 N.C. Gen. Stat. § 122C-273(a)(3); Haw. Rev. Stat. § 334-129(b).

190 N.C. Gen. Stat. § 122C-273(a)(2). This remedy is available provided that the patient does not ”… clearly refuse to comply.” Id.

191 Id.; Haw. Rev. Stat. § 334-129(c).

192 ISAAC & ARMAT, supra note 7, at 315.

193 Brooks, supra note 8, at 123; Stefan, supra note 156, at 290. One study of practice under North Carolina's statute revealed that only 8.3 percent of all civil commitment respondents were ordered to preventive outpatient commitment. Hiday and Scheid-Cook, supra note 112, at 220. It should be noted, however, that another major reason for underutilization, beyond unenforceability, is a simple lack of appropriate community services.

194 Stefan, supra note 156, at 294-95.

195 Id.

196 Ga, Code Ann. § 37-2-91(c).

197 457 U.S. 307 (1982).

198 Hinds, supra note 125, at 406. See cases cited supra note 146.

199 See Rivers v. Katz, 495 N.E.2d 337, 341 (N.Y. 1986); In re Guardianship of Roe, 421 N.E.2d 40, 51-42 (Mass. 1981).

200 Roe, 421 N.E.2d at 51-52; see also In re Boyd, 403 A.2d 744, 750-52 (D.C. 1979).

201 Schwartz & Costanzo, supra note 47, at 1383-85.

202 Hiday & Scheid-Cook, supra note 112, at 230; see also Hiday & Scheid-Cook, Follow-up, supra note 173, at 58.

203 Hiday & Scheid-Cook, supra note 112, at 230.

204 Clayton, supra note 17, at 13-14.

203 Brooks, supra note 137, at 353.

206 Brooks, supra note 8, at 125.

207 According to one pair of commentators:

Bert Pepper & Hilary Ryglewicz, Testimony for the Neglected: The Mentally III in the Post-DeinstitutionalizedAge, 52 Am. J. Orthopsychiatry 388, 389 (1982).

208 Progress Report, supra note 9, at 3, 9.

209 Solomon et al., supra note 114, at 1569.

210 Privatization of Human Services, supra note 75, at 81.

211 Id. at 56.

212 Id. at 66.

213 Id. at 6-7, 82.

214 Osborne & Gaebler, supra note 73, at 87.

215 For example, Massachusetts officials claim that, even after expanding community services, privatization will generate $69 million in net savings through 1994. Progress Report, supra note 9, at 11. However, $43.7 million of that figure includes a one-time savings from capital avoidance. Id. Thus, the real net savings from privatization is $25.3 million over four years. That leaves only $6.2 million per year to address the additional cost considerations raised above.

216 Don Aucoin, Bill Restricts State Privatization, Boston Globe, Feb. 3, 1993, at 19.