1 Treatment of Mental Patients Law, 1991, S.H. no. 1339, p. 58 (hereinafter “the Mental Health Law”). This law was passed by the Knesset on December 11, 1990, after the third reading, by a vote of 38 in favor, none opposed, and one abstention. The law was formally published in January 1991 and became effective in April 1991. As early as 1988, however, Minister of Labor and Welfare Shoshana Arbeli Almozlino appointed a committee of psychiatrists and Ministry lawyers to propose a new mental health law to replace the existing law which had been enacted in 1955. See Treatment of Mentally Sick Persons Law, 1955, 9 L.S.I. 132.

2 Mental Health Law, sec. 11.

3 See e.g., Keilitz, I., “Empirical Studies of Involuntary Outpatient Civil Commitment: Is it Working?”, (1990) 14 Mental and Physical Disability Law Reporter 368Google Scholar; Schwartz, S. and Costanzo, C., “Compelling Treatment in the Community: Distorted Doctrines and Violated Values,” (1987) 20 Loyola of Los Angeles L. R. 1329Google ScholarPubMed; Stefan, S., “Preventive Commitment: The Concept and its Pitfalls”, (1987) 11 Mental and Physical Disability Law Reporter 288Google Scholar.

4 Mental Health Law, supra n. 1.

5 Miller, R., “Outpatient Civil Commitment of the Mentally Ill: An Overview and an Update”, (1988) 6 Behavioral Sciences and the Law 99, at 106CrossRefGoogle Scholar.

6 For definitions of “chronic mental illness”, see Schinaar, A.P., Rothbard, A.B., Kanter, R., Jung, Y.S., “An Empirical Literature Review of the Definitions of Severe and Persistent Mental Illness”, (1990) 147 Am. J. of Psychiatry 1602Google Scholar; Bachrach, L.L., “Young Adult Chronic Patients: An Analytical Review of the Literature”, (1982) 33 Hospital and Community Psychiatry 189Google ScholarPubMed.

7 Basic Law: Human Dignity and Liberty, S.H. (1992), no. 1391, p. 150.

8 Bleicher, B.K., “Compulsory Community Care of the Mentally Ill”, (1967) 116 Cleveland Marshall L. R. 95, at 103Google Scholar. Bleicher argues that compulsory community treatment should exist so that the state can more justly meet its responsibility to those already in involuntary inpatient treatment. She argues that the absence of compulsory community treatment discriminates against the poor, because they are disproportionately committed to state hospitals. Ibid.

9 Statement by Minister of Labor and Welfare Shoshana Arbeli Almozlino before the Knesset Labor and Welfare Committee, January 30, 1990.

10 Treatment of Mentally Sick Persons Law, 1955, supra n. 1.

11 See Levy, A., “The New Israeli Psychiatric Legislation”, (1992) 11 Int'l J. of Medicine and Law 281, at 282Google ScholarPubMed.

12 See Aviram, U. and Shnit, D., “Psychiatric Treatment and Civil Liberties in Israel: The Need for Reform”, (1984) 21 Is. J. of Psychiatry and Related Sciences 3Google ScholarPubMed; Aviram, U. and Shnit, D., Psychiatric Treatment and Civil Liberties: The Involuntary Hospitalization of the Mentally Ill in Israel (1981, in Hebrew)Google Scholar.

13 See e.g., Plonit v. State, (1988/89) P.M. 126; Karmeli v. Karmeli, (1987) 41(iii) P.D. 757; Yarmilowitz and the State of Israel v. Hovav, (1981) 35(iii) P.D. 767; Toledano v. State, (1981) 35(iii) P.D. 332; Roth v. Magistrates Court of Tel Aviv, (1977) 31(ii) P.D. 757. In these cases, the courts criticized the 1955 law on the grounds that it did not adequately protect the due process rights of patients by providing psychiatrists unfettered discretion in the commitment process and by failing to provide a clear definition of dangerousness required to sustain a commitment. Even the State Controller criticized the 1955 law because it did not adequately protect due process rights. The State Controller also criticized psychiatrists for their disregard of the Attorney General's directive regarding the protection of such rights. See State Controller's Report (1988) vol. 38 at 268-272. See also Levy, A., “Reform in the Treatment for People with Mental Illness: New Proposals”, (1986) 51(10) Michtav Lechaver 5–6Google Scholar; 51(12) Michtav Lechaver 8-9 and 52(1) Michtav Lechaver 8 (in Hebrew); and U. Aviram and D. Shnit, supra n. 12.

14 Countless proposals to reform the 1955 law were considered throughout these years. Many of the proposals to reform the 1955 law preserved the medical model for commitment contained in the 1955 law. See Draft Proposal of the Ministry of Health Forensic Committee (1977, in Hebrew); Stern-Katan Model (1981), Draft Proposal for Treatment for People with Mental Illness Law (amendment number 6) (in Hebrew); Barel, Y., Treatment for People with Mental Illness (Jerusalem, 1981, in Hebrew)Google Scholar; Model, Haker (1981), “An Involuntary Hospitalization of People with Mental Illness”, (1981) Family Doctor 355 (in Hebrew)Google Scholar; Ginat-Barel Model (1983); Ginat, and Barel, , “Compulsory Medical Psychiatric Hospitalization: A Clinical Review of Israeli Law and a Proposed for Change”, paper presented at the International Congress on Psychiatry and Law and Ethics, (Haifa, 1983, in Hebrew)Google Scholar, cited in Levy, A. and Davidson, S., “Ten Proposals for Improving the Treatment for People with Mental Illness Law: The Delayed Change”, (1986) 48(2) Michtav Lechaver 9–10Google Scholar; 48(3) Michtav Lechaver 10-11; 48 Michtav Lechaver 8-9 (in Hebrew).

Other proposals, by contrast, incorporated a legalistic model which emphasized the patient's right to liberty and limited the discretion of the psychiatric profession in the commitment process. In these proposals, courts would play an active role in issuing commitment orders and reviewing orders issued by district psychiatrists. See Bazak, Judge, Draft Proposal of the Ministry of Health Forensic Committee (1977) (minority opinion) (in Hebrew)Google Scholar; Sebba, L., “Rights of Involuntarily Committed People with Mental Illness”, (written for the Association of Civil Rights of Israel) (1980, in Hebrew)Google Scholar; Hovav, M., Proposal contained in a Memorandum to Psychiatric Hospitals by a former patient (1983, in Hebrew)Google Scholar; U. Aviram and D. Shnit, supra n. 12; Porush, E., “Standards for Involuntary Commitment of People with Mental Illness: The Present Law and the Desired Law”, (1984) 13 Mishpatim 377Google Scholar, cited in A. Levy and S. Davidson, “Ten Proposals for Improving the Treatment for People with Mental Illness Law: The Delayed Change”, ibid. See also R. Yaffe, D. Yakir, with M. Hovav, A. Levy and L. Sebba, paper prepared for the Association for Civil Rights in Israel, “Civil Commitment of People with Mental Illness”, presented to the Ministry of Health (1988, in Hebrew) (hereinafter “ACRI Proposal”).

Two additional proposals by Members of the Knesset, MKs Shulamit Aloni and Yair Tzaban, proposed tinkering with the 1955 law rather than a wholesale revision. See Amendments to the Treatment for People with Mental Illness Law (1987), submitted to the Knesset by MK Aloni, October 1987; and Amendments to the Treatment for People with Mental Illness Law (1987) submitted to the Knesset by MK Tzaban, October 1987, (hereinafter “Tzaban Proposal”), cited in A. Levy, “Reform in the Treatment for People with Mental Illness Law: New Proposals”, supra n. 13.

15 The 1991 law was originally prepared by a special committee appointed by the then Minister of Health, Shoshana Arbeli Almozlino. Former Minister Arbeli Almozlino became concerned that the 1955 law was no longer protecting the interests and safety of mentally ill people after she visited a small private institution for people with mental illness and was appalled by its conditions. Interview of Ms. Arbeli Almozlino, June 1, 1995 (Tel Aviv). She convened a committee to draft the new law, consisting of four psychiatrists, Drs. Barel, Sekeli, Ginat and Weil, and the Ministry of Health's legal counsel. However, the new law was not completed by the time Ms. Arbeli Almozlino left office. Therefore, upon completion of the proposed law, she introduced it as a “private law”.

16 MK Arbeli Almozlino also recognized the importance of protecting patient rights when she commented that the proposed law was necessary due to “events that transpired over the years, along with verdicts reached in courts, brought about the proposal for a reform of the law. Another force contributing to this proposal was the Association for Civil Rights, which warned from time to time about problems and incidents, which while exceptional, were painful and harmful to the rights of patients”. Comments by then-Minister Arbeli Almozlino before the Knesset Labor and Welfare Committee, January 30, 1990 (in Hebrew). In the end, however, the legalistic model was apparently rejected on the grounds that it did not “fit the reality of the psychiatrists' work and methods of treating people with mental illness” at that time. See Comments on the Draft Proposal of the 1991 Law, submitted by Yehoshua Shoffman for the Association for Civil Rights (March 29, 1989, in Hebrew).

17 Following the vote in favor of the law's passage, MK Arbeli Almozlino stated, “[T]his is a social welfare law of the first degree. It is enacted to defend a group which is defenseless and helpless, and to provide it with legal rights. We are adding here a new course in the legal code generally, and social laws specifically, according to which a set of rights are guaranteed to the ill person, and we started this effectively in the law for the mentally ill. This law represents a great breakthrough in the treatment of the mentally ill. It takes into account changes that have transpired in society and which are appropriate in an enlightened society. I am proud that the Israeli Knesset is one of the first bodies which has enacted this revolution. My hope is that the law will be enforced wisely and will strengthen the psychiatric framework and treatment of the mentally ill”. Closing remarks by MK Arbeli Almozlino, December 11, 1990 (in Hebrew).

18 Mental Health Law, sec. 10.

19 Ibid.

20 Under the previous law, the Mental Act of 1955, patients had only the right to receive and send mail and to have visitors. See Treatment of Mentally Sick Persons Law 1955, supra n. 1.

21 Mental Health Law, sec. 35.

22 Ibid., sec. 42.

23 Ibid., sec. 4(a); sec. 35(h)(I).

24 Ibid., secs. 5-7.

25 Ibid., sec. 9.

26 Ibid. The commitment must take place within 48 hours after the examination. See sec. 5(b).

27 Mental Health Law, secs. 6 and 7. The examination may also be performed by a psychiatrist designated by the district psychiatrist for that specific purpose. See Plonit v. State (1993) 53(i) P.M. 410.

28 The district psychiatrist had been the cornerstone of the 1955 law. It was the district psychiatrist who determined the criteria for commitment, the duration of commitment and the locus of care. See Treatment of Mentally Sick Persons Law of 1955.

29 See U. Aviram and D. Shnit, supra n. 12; Aviram, U., “Care or Convenience: On the Medical Bureaucratic Model of Commitment of the Mentally Ill”, (1990) 13 Int'l J. of Law and Psychiatry 163CrossRefGoogle ScholarPubMed.

30 Ibid. Although this apparent conflict of interest is not specifically prohibited by the new law, it was addressed by the Minister of Health by divesting the district psychiatrist of the position of hospital director. Interview of Dr. Barel, March 15, 1995, Jerusalem.

31 Mental Health Law, sec. 6.

32 Ibid.

33 Ibid., sec. 7.

34 Ibid.

35 Ibid., sec. 9(c).

36 Ibid., sec. 10(a)-(c).

37 Interview with Dr. Barel, March 15, 1995, Jerusalem; Interview with Dr. Litman, former Director of Mental Health Services Division, Ministry of Health, May 11, 1995, Jerusalem.

38 Only approximately 14% of all mental hospital admissions in Israel are involuntary civil commitments, with an additional 4% commitments under the Criminal Code, 10% commitments pursuant to civil commitment orders issued by the district psychiatrists; and 3%-4% commitments as emergency hospitalizations which may result in voluntary or involuntary hospital stays. M. Popper, paper presented to Israel's district psychiatrists, January 1995; Aviram, U., “Mental Health Services in Israel at a Crossroads: Promises and Pitfalls of Mental Health Services in the Context of the New National Health Insurance”, (Fall, 1996) Int'l J. of Law & Psychiatry (in press)CrossRefGoogle Scholar; see also Popper, M., “The Epidemiology of Involuntary Psychiatric Hospitalization”, paper presented at the 15th International Conference on Law and Mental Health, (1989)Google Scholar; Popper, M. and Horowitz, R., Trends of Psychiatric Hospitalization, 1975-1987, Statistical publication, No. 6, 1988 Ministry of Health, Mental Health Services, Dept. of Information and Evaluation (Jerusalem, 1989, in Hebrew)Google Scholar. The meaning of voluntariness, itself, and the patient's understanding regarding the difference between voluntary and involuntary status is, of course, subject to debate. At least one Israeli psychiatrist is now researching the extent to which his “voluntary” hospital patients, understand the nature of their situation and in fact, “voluntarily” consent to treatment. Interview with Dr. Ginat, March 12, 1995, Jerusalem.

39 Mental Health Law, sec. 11(a)-(b).

40 See supra nn. 31 and 34 and accompanying text.

41 Mental Health Law, sec. 11(b).

42 During a session of the Knesset Committee on Labor and Welfare, MK Tzaban proposed that the law state “that the district psychiatrist will not give an order to hospitalize unless he is convinced that there is no possibility to provide the ill person with the treatment that is required in any setting other than a hospital”. November 20, 1990. This provision was not included in the final version of the law, however.

43 According to the Press Release issued by the Knesset Committee for Labor and Welfare, “[t]he proposed law is based upon the extensive experience which has accumulated in advanced countries of the world and in Israel, and reflects an innovative approach which is expressed partly by allowing the possibility of IOC in lieu of compulsory hospitalization; and enables an ill person to stay within the family and community framework”. (December 11, 1990) (emphasis added).

44 Mental Health Law, secs. 6 and 7. Interview with Dr. Litman, former Director of Mental Health Services Division, Ministry of Health, May 11, 1995, Jerusalem.

45 The 1991 Mental Health Law is limited to adults. However, a new group of minors have also become the intended beneficiaries of a new law authorizing involuntary mental health treatment to minors. The Youth Law was amended recently to include, among other provisions, new procedures regarding the commitment of minors for mental health treatment. See Youth (Care and Supervision) Law, Amendment No. 11, 1995, S.H. p. 316, amending Youth (Care and Supervision) Law, 1960, (14 L.S.I. 44). Although a full discussion of the new Youth Law is beyond the scope of this article, three issues are worthy of note in comparison with the new Mental Health Law. First, under the newly amended Youth Law, a court may order involuntary outpatient commitment (IOC) for up to an initial period of three months (renewable for up to three months) (1) if, based on the opinion of a district psychiatrist, (which, in turn, is based on the opinion of a child psychiatrist who examined the minor), that the minor has a mental illness or disturbance which requires psychiatric treatment in order to prevent physical risk to the minor or to another person, or to prevent severe psychological damage to his development; or (2) if the court finds, based on the opinion of a psychologist who examined the minor, that the minor's mental condition requires psychological treatment in order to prevent psychological damage to his development. Second, a minor may be involuntarily hospitalized (1) if or she meets the requirements of sec. 9 of the Mental Health Law, (see supra n. 25); or (2) if the minor has a mental illness or severe mental disturbance which may cause an immediate physical risk to him or others, or may cause severe psychological damage to his development in the absence of hospitalization. The court will not order inpatient hospitalization unless it finds, based on the opinion of the psychiatric committee for children and juveniles which examined the child, that there is no other way to give treatment to the minor except by hospitalization. A child may be involuntarily hospitalized for an initial period of 30 days, with three month extensions provided: sec. 3e, Youth Law. Third, the Youth Law, as amended, provides extensive court involvement in the commitment of minors to mental hospitals as well as outpatient programs. Section 4a provides that minors over 15 cannot be committed involuntarily without a court order and that minors under 15 cannot be committed involuntarily (even if the parents or guardians consent) without review of the newlyformed Psychiatric Committee for Children and Juveniles.

It appears that this new Youth Law intends to create a new category of minors who may be committed to involuntary treatment — i.e. those at risk of “severe psychological damage” to their development. It also appears that the “least restrictive” requirement refers only to the second category of inpatient commitment. Yet, in the end, courts may be left to decide whether or not a child's commitment fits under category (1) (i.e., sec. 9 of the Mental Health Law), or category (2), in which case hospitalization will be permitted only if it is the least restrictive alternative available. See infra n. 242 and accompanying text.

46 Mental Health Law, sec. 12. Secs. 24-29 authorizes the review of certain of the district psychiatrist's decisions by a Psychiatric Committee comprised of psychiatrists (appointed by the Minister of Health) and lawyers for the Ministry of Health. The Psychiatric Committee receives copies of all commitment orders. Ibid. The composition of the Committee is specified in the law. It requires the chair of each committee to be an attorney and that each committee include two physicians who are experts in psychiatry. Ibid. As an alternative to the Psychiatric Committee as the forum to review commitment orders, MK Tzaban and the Association for Civil Rights in Israel suggested the formation of an independent review committee, headed by a magistrate. Their proposals were rejected. See ACRI Proposal, supra n. 14, and Tzaban Proposal, supra n. 14.

47 Courts are directly involved, however, in the initial commitment of individuals who are found guilty of criminal acts and who are considered not competent to be punished. Mental Health Law, sec. 16(a)-(c). In such cases, the court has the power to commit the person to the hospital or to ambulatory treatment, provided the court is convinced that his/her release to the community poses no risk to his/her safety or the safety of the community. The court does not decide, however, whether treatment should be provided, but only where such treatment shall be provided. The district psychiatrist retains the power to make all treatment decisions, even with respect to criminal defendants. Sec. 16(b).

48 A person facing commitment has no right to legal representation at the initial commitment hearing. On appeal of a commitment order, however, the individual may be represented by an attorney or a guardian: sec. 26(c). Representation by a guardian is not considered equivalent to legal representation for the purpose of due process analysis, however. See e.g., Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968). In the United States, the right of a patient in civil commitment proceedings to legal counsel is provided by statute in all states except New York. See Brakel, S., Mentally Disabled and the Law, Table 2.15 Cols. 1 and 5 (1985)Google Scholar. New York provides representation by the Mental Health Information Service, an investigative and advocacy arm of the State Supreme Court. See Mental Hygiene Law § 29.09 (McKinney 1988).

49 See Plonit v. State, supra n. 27, at 410. In Plonit, Tel Aviv District Court Judge Sirota wrote, “[t]he right to appeal is illusory, if it is given to a person who is incompetent, whether he is very ill and doesn't understand or whether he understands but cannot be assisted by an attorney”. Ibid., at 454. In this case, Judge Sirota recommended that “it is therefore needed to refer the patient to legal aid and to include a note, in the commitment order itself, about the patient's right to appeal”. Ibid. Finally, the court held that an automatic appeal must be initiated in all cases of non-emergency involuntary commitment in order to protect the patient's due process rights. Ibid. See also Case Number 421/93 in which Judge Struzman calls for legal representation of people facing involuntary examination: case Number 421/93, (District Court of Tel Aviv), Plonit v. Attorney General, (unpublished opinion).

50 Plonit v. State, ibid., at 410.

51 Case Number 421/93, (District Court of Tel Aviv), Plonit v. Attorney General, (unpublished opinion).

52 Case Number 1762/94, (District Court of Tel Aviv), Plonit v. Attorney General (not yet published) decided December 22, 1995.

53 The Press Release, December 11, 1990, accompanying the Mental Health Law of 1991 states: “The proposed law is based upon the extensive experience which has accumulated in advanced countries of the world and in Israel …” Press Release prepared by the Knesset Committee Labor and Welfare. In the course of drafting the law, The Association of Civil Rights in Israel urged the Committee to include specific provisions from American laws, such as the requirement that hospitalization could only be used as a last resort — i.e., only if less restrictive alternatives to involuntary hospitalization had been tried and failed. But these specific provisions from American laws were not included in the 1991 law. See Statement at Knesset Committee by Yehoshua Shoffman for the Association of Civil Rights in Israel, February 13,1990.

54 S. Stefan, “Preventive Commitment: The Concept and its Pitfalls”, supra n. 3; Keilitz, I. and Hall, T., “State Statutes Governing Involuntary Outpatient Civil Commitment”, (1985) 9 Mental and Physical Disability Law Reporter, 103Google ScholarPubMed; Hiday, V. and Scheid-Cook, T., “A Follow-up of Chronic Patients Committed to Outpatient Treatment”, (1989) 40 Hospital and Community Psychiatry 52, at 58Google ScholarPubMed.

55 See Mulvey, E., Geller, J., Roth, L., “The Promise and Peril of Involuntary Outpatient Commitment”, (1987) 42 American Psychologist 571, at 578CrossRefGoogle ScholarPubMed; I. Keilitz, “Empirical Studies of Involuntary Outpatient Civil Commitment: Is It Working?”, supra n. 3; see also Miller, R., “Commitment to Outpatient Treatment: A National Survey”, (1985) 36 Hospital and Community Psychiatry 265Google ScholarPubMed.

56 For the effect of IOC on slowing the revolving door of non-complaint patients see Geller, J., “Rights, Wrongs and the Dilemma of Coerced Community Treatment”, (1986) 143 Am. J. of Psychiatry 1259, at 1263Google ScholarPubMed.

57 See Bassuk, E. and Gerson, S., “Deinstitutionalization and Mental Health Services”, (1978) 238 Scientific American 46CrossRefGoogle ScholarPubMed; Mechanic, D. and Rochefort, D.A., “Deinstitutionalization: An Appraisal of Reform”, (1990) 16 Annual Review of Sociology 301CrossRefGoogle Scholar; Avriam, U., “Community Care of the Seriously Mentally Ill: Continuing Problems and Current Issues”, (1990) 26 Community Mental Health Journal 69CrossRefGoogle Scholar; See also Grob, G.N., The Mad Among Us: A History of the Care of America's Mentally Ill (1994)Google Scholar; Slovenko, R., “The Hospitalization of the Mentally Ill Revisited”, (1993) 24 Pacific L. J. 1107–1123Google Scholar; Grob, G.N., From Asylum to Community: Mental Health Policy in Modern America (Princeton, 1991)CrossRefGoogle Scholar; Mikochik, S.L., “Advancing Deinstitutionalization”, (1989) N. D. L.R. 65, at 143–160Google Scholar; Durham, M. and La Fond, J.Q., “The Empirical Consequences and Policy Implications of Broadening the Statutory Criteria for Civil Commitment”, (1985) 3 Yale Law and Policy R. 395–446Google ScholarPubMed; and Brown, P., Transfer of Care: Psychiatric Deinstitutionalization and Its Aftermath (1985)Google Scholar.

58 Williams, D., Bells, E., and Wellington, S., “Deinstitutionalization and Social Policy: Historical Perspectives and Present Dilemmas”, (1980) 50 Am. J. of Orthopsychiatry 54, at 57CrossRefGoogle ScholarPubMed.

59 See Kanter, A., “Homeless But Not Helpless: Legal Issues in the Care of Homeless People With Mental Illness”, (1989) 45 Journal of Social Issues 91CrossRefGoogle Scholar; Kanter, A., “Homeless Mentally Ill People: No Longer Out of Sight and Out of Mind”, (1986) 3 Human Rights Annual 331Google Scholar; LaFond, J. and Durham, M., Back to the Asylum: The Future of Mental Health Law and Policy in the United States, (Oxford, 1992)Google Scholar; Lamb, R., “Deinstitutionalization at the Crossroads”, (1988) 39 Hospital and Community Psychiatry 41Google ScholarPubMed.

60 See Appelbaum, P., Almost a Revolution, (Oxford, 1994)Google Scholar.

61 G.N. Grob, The Mad Among Us, supra n. 57; P. Brown, Transfer of Care, supra n. 57.

62 Ibid.

63 E. Mulvey, J. Geller, L. Roth, “The Promise and Peril of Involuntary Outpatient Commitment”, supra n. 55.

64 Goldman, H.H., Adams, N.H., Taube, C.A., “Deinstitutionalization: The Data Demythologized”, (1983) 24 Hospital and Community Psychiatry, 129–134Google Scholar; G.N. Grob, From Asylum to Community, supra n. 57.

65 A. Kanter, “Homeless But Not Helpless: Legal Issues in the Care of Homeless People With Mental Illness”, supra n. 59; A. Kanter, “Homeless Mentally Ill People: No Longer Out of Sight and Out of Mind”, supra n. 59.

66 Some former patients became isolated within the community and found themselves moved from the “back wards of hospitals … to the back alleys of communities”. Aviram, U. and Segal, S., “Exclusion of the Mentally Ill: Reflection on an Old Problem in a New Context”, (1973) 29 Archives of General Psychiatry 126CrossRefGoogle Scholar.

67 See Rubenstein, L.R., “Treatment of the Mentally Ill: Legal Advocacy Entqrs the Second Generation”, (1986) 143 Am. J. of Psychiatry 1264Google ScholarPubMed; Gruenberg, P., The Deinstitutionalization Movement, Public Mental Health: Perspective and Prospects (1982) 281Google Scholar; Wilk, R., “Implications of Involuntary Outpatient Commitment for Community Mental Health Agencies”, (1988) 58 Am. J. of Orthopsychiatry 580CrossRefGoogle ScholarPubMed.

68 See U. Aviram, “Care or Convenience: On the Medical-Bureaucratic Model of Commitment of the Mentally Ill”, supra n. 29; Appelbaum, P., “Civil Commitment: Is the Pendulum Changing Directions?”, (1982) 33 Hospital and Community Psychiatry 703Google Scholar.

69 In 1969, California enacted the Lanterman-Petris-Short Act which set the standard for statutory reform in civil commitment laws for the subsequent two decades, resulting in the nationwide adoption of the dangerousness standard. See Lamb, H.R. and Mills, M.J., “Needed Changes in Law and Procedure for the Chronically Mentally Ill”, (1986) 37 Hospital and Community Psychiatry 475Google Scholar. Further, the United States Supreme Court has recognized that “involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law”. O'Connor v. Donaldson, 422 U.S. 563, 580 (1975) (Burger, J. concurring). See also Specht v. Patterson, 386 U.S. 605, 608 (1967); Humphrey v. Cady, 405 U.S. 504, 509 (1972); Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Meisel v. Kremens, 405 F. Supp. 1253, 1255 (E.D. Pa. 1975).

70 See Brooks, A.D., “Defining the Dangerousness of the Mentally Ill: Involuntary Civil Commitment”, in Craft, M. & Craft, A. (eds.), Mentally Abnormal Offenders (1984)Google Scholar.

71 See e.g., Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wisc. 1979).

72 In Minnesota, for example, the commitment law was revised in 1982 to require a showing of a recent overt act of dangerousness and to provide only “the least physically restrictive treatment alternative”. See Greeman, M. and McClellan, T., “The Impact of a More Stringent Commitment Code in Minnesota”, (1985) 36 Hospital and Community Psychiatry 990Google ScholarPubMed.

73 Miller, R., “The Least Restrictive Environment: Hidden Agendas and Meanings”, (1982) 18 Community Mental Health Journal 46CrossRefGoogle Scholar; Bachrach, L.L., “Is the Least Restrictive Alternative Always the Best? Sociological and Semantic Implications”, (1980) 31 Hospital and Community Psychiatry 197Google Scholar; S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3, at 1348-58.

74 The concept of limiting the power of the state to actions that can not be accomplished by “least restrictive” or “less drastic means” did not originate in the area of mental health law. This principle was first articulated by the United States Supreme Court in Shelton v. Tucker, 364 U.S. 479 (1960), in which the Court invalidated an Arkansas law that had required state employed teachers to file affidavits listing all organizations to which they belonged or to which they made financial contributions. The Court wrote, “… even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly pursued. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose”. 364 U.S. at 488. (emphasis added). The least restrictive alternative concept has now been incorporated into Israeli law in what is known as the “limitations clause” of the new Israeli Basic Law: Human Dignity and Liberty, see infra n. 238 and accompanying text.

75 As Judge Bazelon wrote in Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966), “[t]he alternative course of treatment or care should be fashioned as the interests of the person and of the public require in the particular case. Deprivations of liberty solely because of dangers to the ill persons themselves should not go beyond what is necessary for their protection”. Ibid., at 660. This case involved an elderly woman whom the court wanted to protect from continued hospitalization. By all accounts, she was harmless and he wanted to find an alternative to hospitalization to address the consequences of the aging process (confusion, frailty). For the first time, a court held that prior to involuntary commitment, the government must bear the burden of demonstrating that no less restrictive alternatives to hospitalization existed for this plaintiff. The dissenters at that time noted that the court was not equipped to “initiate inquiries and direct studies of social welfare facilities or other social problems”. Burger dissenting, at 663. See also Covington v. Harris, 419 F.2d 617, 623 (D.C. Cir. 1969); Chambers, D., “Alternatives to Civil Commitment of the Mentally Ill: Practical Guides and Constitutional Imperatives”, (1972) 70 Mich. L. R. 1107, at 1111 n. 9Google Scholar.

76 Lessard v. Schmidt, supra n. 71.

77 See Perlin, M., Mental Disability Law, (1989) Vol. 1, § 3.46, n. 747Google Scholar and accompanying text.

78 Ibid.; see also Keilitz, I., Conn, D., Giampetro, A., “Least Restrictive Treatment of Involuntary Patients, Translating Concepts into Practice”, (1985) 29 St. Louis U.L.J. 691, at 709–11Google Scholar, nn. 101-02; Quatron, J.E., Keener, M.S., Woodbury, J.D., “New Jersey's New Psychiatric Commitment Law”, (1988) 85 N.J. Medicine 653Google Scholar.

79 See R. Miller, “Outpatient Civil Commitment of the Mentally Ill: An Overview and An Update”, supra n. 5; Test, M. and Stein, L., “Community Treatment of the Chronic Patient: Research Overview”, (1978) 4 Schizophrenia Bulletin 350CrossRefGoogle Scholar.

80 E. Bassuk and S. Gerson, “Deinstitutionalization and Mental Health Services”, supra n. 57; See e.g., Miller, R. and Fiddleman, P.B., “Outpatient Commitment: Treatment in the Least Restrictive Environment?”, (1984) 35 Hospital and Community Psychiatry 147Google ScholarPubMed; McCafferty, G. and Dooley, J., “Involuntary Outpatient Commitment: An Update”, (1990) 14 Mental and Physical Disability Law Reporter 277Google Scholar.

81 See S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3; Cohen, S., Visions of Social Control, Crime Punishment and Classification, (Cambridge: Polity Press, 1985)Google Scholar; Horwitz, A., The Social Control of Mental Illness, (New York: Academic Press, 1990)Google Scholar.

82 See Serban, G. and Thomas, A., “Attitudes and Behaviors of Acute and Chronic Schizophrenic Patients Regarding Ambulatory Treatment”, (1974) 131 Am. J. of Psychiatry 991CrossRefGoogle ScholarPubMed; Geller, J., “In Again, Out Again: Preliminary Evaluation of a State Hospital's Worst Recidivists”, (1986) 37 Hospital and Community Psychiatry 386 (finding not all recidivism may be attributed to non-compliance)Google ScholarPubMed.

83 See Meyers, J.E.B., “Involuntary Civil Commitment of the Mentally Ill: A System in Need of Change”, (1983–1984) 29 Villanova L. R. 3687Google Scholar.

84 See L.R. Rubenstein, “Treatment of the Mentally Ill: Legal Advocacy Enters the Second Generation”, supra n. 67; P. Gruenberg, The Deinstitutionalization Movement, Public Mental Health: Perspective and Prospects, supra n. 67; R. Lamb, “Deinstitutionalization at the Crossroads”, supra n. 59.

85 See Beis, W., Mental Health and the Law (1984) 3–6Google Scholar; see generally, Deutsch, A., The Mentally Ill in American: A History of Their Care and Treatment for Colonial Times (2nd ed., 1949)Google Scholar; Goffman, E., Asylums, (1961) 12–74Google Scholar.

86 L.R. Rubenstein, “Treatment of the Mentally Ill: Legal Advocacy Enters the Second Generation”, supra n. 67.

87 These statutory revisions were based, in part, on the assumption that the stricter the commitment law, the fewer people would be admitted to mental hospitals. However, studies have examined the extent to which commitment criteria effect admission rates, with conflicting findings. See Schwartz, L., “Involuntary Admissions: A Century of Experience”, (1982) 44 J. of Clinical Psychiatry 28Google Scholar. In this study, Schwartz found that California's enactment of more stringent commitment criteria, resulted in fewer commitments and an increased reluctance by patients not committed to accept voluntary hospitalization. But another study in Minnesota found that the enactment of more stringent commitment standards did not significantly reduce the number of patients committed by the court. See Greeman, M. and McClellan, T., “The Impact of a More Stringent Commitment Code in Minnesota”, (1985) 36 Hospital and Community Psychiatry 990Google ScholarPubMed.

88 The psychiatric profession has long been critical of commitment standards which require a showing of overt dangerousness as unnecessary or ineffective for restricting professional discretion. See e.g., Chodoff, P., “The Case for Involuntary Hospitalization of the Mentally Ill”, (1976) 133 Am. J. of Psychiatry 496Google ScholarPubMed; Mulvey, E.P. and Lidz, C.W., “Back to Basics: A Critical Analysis of Dangerousness Research in a New Legal Environment”, (1985) 9 Law and Human Behavior 209CrossRefGoogle Scholar. But see Morse, S., “A Preference for Liberty: The Case Against Involuntary Commitment of the Mentally Disordered”, (1982) 70 Calif. L. R. 54CrossRefGoogle Scholar.

89 Treffert, D.A., “The Obviously Ill Patient in Need of Treatment: A Fourth Standard for Civil Commitment”, (1985) 36 Hospital and Community Psychiatry 259Google ScholarPubMed; see also Durham, M.L. and Pierce, G.L., “Beyond Deinstitutionalization: A Commitment Law in Evolution”, (1982) 33 Hospital and Community Psychiatry, 216Google Scholar; Miller, R., Involuntary Civil Commitment of the Mentally Ill in the Post Reform Era (1987)Google Scholar.

90 Stromberg, R. and Stone, A., “A Model State Law on Civil Commitment of the Mentally Ill”, (1983) 20 Harv. J. of Legislation, 275, at 330Google ScholarPubMed.

91 “The APA Model Law was intended to permit commitment of many of those severely mentally ill people who, ignored by current commitment laws and abandoned by the mental health system, now roam the streets aimlessly and without hope”. Ibid., at 281.

92 Wash. Rev. Code Ann. § 71.05.020 (West. Supp. 1991).

93 Arizona Rev. Stat. Ann. § 36-501(29) (West Supp. 1986).

94 Alaska Stat. § 47.30.915 (7) (B) (1984); Ariz. Rev. Stat. Ann. § 36-501(5),(6),(14, (15), (1986, revised 1989); Hawaii Rev. Stat. § 334-1 (1988); Miss. Code §§ 41-21-61 - 83 (1994). See also “The Empirical Consequences and Policy Implication of Broadening the Statutory Criteria for Civil Commitment”, (1985) 3 Yale Law and Policy R., 396–446Google Scholar.

95 New Jersey, Illinois, Pennsylvania, California and the District of Columbia refused to expand their commitment laws due to the cost involved. See J. LaFond and M. Durham, Back to the Asylum, supra n. 59, at 118. See also R. Miller, “Outpatient Civil Commitment of the Mentally Ill: An Overview and An Update”, supra n. 5, at 99-118 for a comprehensive overview of state legislative actions. Although New York initially refused to amend its commitment law in October 1986, the then-Mayor Koch issued a Mayoral directive authorizing New York City police to involuntarily “pickup” and then transport homeless people who appeared mentally ill to either a shelter or a psychiatric hospital for evaluation once the temperature outside dropped to freezing. The following year, the Mayor expanded this directive by authorizing mental health workers affiliated with “Project HELP” to forcibly move homeless people to city hospitals for treatment. Following treatment, the city would then petition to commit these individuals for extended care in public psychiatric facilities. See A. Kanter, “Homeless Mentally Ill People: No Longer Out of Sight and Out of Mind”, supra n. 59; Daley, S., “Koch Policy for Homeless Creates Fear”, New York Times, October 12, 1987, p. B1, col. 6Google Scholar; “Psychiatric Care of Ill Homeless may be Lengthy”, December 7, 1987, New York Times, p. A1Google Scholar.

96 See Sheid-Cook, T., “Outpatient Commitment as Both Social Control and Least Restrictive Alternative”, (1991) 32 Sociological Quarterly 43, at 45Google Scholar; J. Geller, “Rights, Wrongs and the Dilemma of Coerced Community Treatment”, supra n. 56, at 1259-1262; Miller, R., “An Update on Involuntary Civil Commitment to Outpatient Treatment”, (1992) 43 Hospital and Community Psychiatry, 79, at 81Google ScholarPubMed; see also Brooks, A., “Outpatient Commitment for the Chronically Mentally Ill: Law and Policy“ in Mechanic, D., (ed.), Improving Mental Health Services: What the Social Sciences Can Tell Us, New Directions for Mental Health Services (1987)Google Scholar.

97 See I. Keilitz and T. Hall, “State Statutes Governing Involuntary Outpatient Civil Commitment”, supra n. 54, at 378; see e.g., N.Y. Mental Hygiene Law § 9.61.

98 See I. Keilitz and T. Hall, ibid.

99 See R. Band, F. Goldfrank, G. Zanni, L. DeVeau, R. Wiant & R. Peele, “Outpatient Commitment: A Thirteen Year Experience”, paper presented at the Annual Scientific Meeting of the American Academy of Psychiatry and Law, Nassau, Bahamas, 1984.

100 S. Stefan, “Preventive Commitment: The Concept and Its Pitfalls”, supra n. 3; S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3.

101 Ibid.

102 A. Brooks, “Outpatient Commitment for the Chronically Mentally Ill: Law and Policy,” supra n. 96; Bursten, B., “Posthospital Mandatory Outpatient Treatment”, (1986) 143 Am. J. of Psychiatry 1255Google ScholarPubMed; Hiday, V. and Scheid-Cook, T., “Outpatient Commitment for ‘Revolving Door’ Patients: Compliance and Treatment”, (1991) 179 J. of Nervous and Mental Diseases 83CrossRefGoogle Scholar.

103 In North Carolina, for example, persons facing IOC are not provided with an attorney although persons facing involuntary hospitalization are. Cross examination of the psychiatrist is also not permitted at IOC hearings. See N.C. Gen. Stat. §§ 122C (1986).

104 See I. Keilitz, “Empirical Studies of Involuntary Outpatient Civil Commitment: Is It Working?”, supra n. 3; R. Miller, “Outpatient Civil Commitment of the Mentally Ill: An Overview and An Update”, supra n. 5; R. Miller, “Commitment to Outpatient Treatment: A National Survey”, supra n. 55, at 265-267; S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3, at 1361-1369.

105 N.C. Gen. Stat. §§ 122C-261 et seq. (1986).

106 See I. Keilitz and T. Hall, “State Statutes Governing Involuntary Outpatient Civil Commitment”, supra a. 54, at 378; R. Miller, “Commitment to Outpatient Treatment: A National Survey”, supra n. 55, at 267; S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3.

107 A major impetus for such legislation, it has been reported, was the needs of families seeking to improve access to involuntary treatment for their mentally ill family members. Owens, J., “Involuntary Outpatient Commitment: An Exploration of the Issues and Its Utilization in Five States”, (1985)Google Scholar, paper prepared for the Division of Educational Services Systems Liaison of the National Institute of Mental Health, No. 85M046982501D. See I. Keilitz, “Empirical Studies of Involuntary Outpatient Civil Commitment: Is It Working?”, supra n. 3, at 368-69; V. Hiday and T. Scheid-Cook, “Outpatient Commitment for ‘Revolving Door’ Patients: Compliance and Treatment”, supra n. 102.

108 Geller, J., “Clinical Guidelines for the Use of Involuntary Outpatient Treatment”, (1990) 41 Hospital and Community Psychiatry, 749–755Google ScholarPubMed; see also J. LaFond and M. Durham, Back to the Asylum, supra n. 59; A. Brooks, “Outpatient Commitment for the Chronically Mentally Ill: Law and Policy”, supra n. 96.

109 Appelbaum, P., “Outpatient Commitment: The Problems and the Promise”, (editorial), (1986) 143 Am. J. of Psychiatry 1270, at 1272Google ScholarPubMed.

110 E. Mulvey, J. Geller, L. Roth, “The Promise and Peril of Involuntary Outpatient Commitment”, supra n. 55, at 572.

111 E. Mulvey, J. Geller, L. Roth, ibid., at 578.

112 J. Geller, “Rights, Wrongs and the Dilemma of Coerced Community Treatment”, supra n. 56, at 1261; See also Stone, A.A., “Psychiatric Abuse and Legal Reform: Two Ways to Make a Bad Situation Worse”, (1982) 5 Int'l J. of Law and Psychiatry 9CrossRefGoogle ScholarPubMed.

113 For an interesting discussion of IOC as both a method of social control and as a less restrictive alternative, see T. Scheid-Cook, “Outpatient Commitment as Both Social Control and Least Restrictive Alternative”, supra n. 96. The author reports on a study of four community mental health centers (CMHC's) in North Carolina following the enactment of North Carolina's IOC law. The author found that clinicians favored the social control aspects of IOC in that it provided them with the leverage of “force” to get some chronically mentally ill patients to come to the CMHC. Patients preferred going to the CMHC as a less restrictive alternative to hospitalization. Ibid., at 56.

114 See ibid., at 55-56; E. Mulvey, J. Geller, L. Roth, “The Promise and Peril of Involuntary Outpatient Commitment”, supra n. 55; see also A. Horwitz, The Social Control of Mental Illness, supra n. 81; S. Stefan, “Preventive Commitment: The Concept and Its Pitfalls”, supra n. 3; S. Schwartz and Costanzo, supra n.3 at 1333-1335; Miller, R. and Fiddleman, P.B., “Involuntary Civil Commitment in North Carolina: The Result of the 1979 Statutory Changes”, (1982) 60 N. C. L. R. 985–1026Google Scholar.

115 S. Stefan, “Preventive Commitment: The Concept and its Pitfalls”, supra n. 3; S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3.

116 See P. Appelbaum, Almost a Revolution, supra n. 60, at 368.

117 A California study found that an unintended consequence of the enactment of a more stringent commitment law in California was the increased reluctance by patients not committed, to accept voluntary outpatient services. Schwartz, L., “Involuntary Admissions: A Century of Experience”, (1982) 44 J. of Clinical Psychiatry 28–32Google Scholar. A second study of 189 committed and voluntary patients found that a larger percentage of voluntary patients accepted both hospitalization and outpatient follow-up, but that committed patients did equally well in the community after six months. Shore, J.H., Breakey, W., and Arvidson, B., “Morbidity and Mortality in the Commitment Process”, (1981) 38 Archives of General Psychiatry, 93–934CrossRefGoogle ScholarPubMed. See also E. Mulvey, J. Geller, and L. Roth, “The Promise and Peril of Involuntary Outpatient Commitment”, supra n. 55.

118 See e.g., R. Wilk, “Implications for Involuntary Outpatient Commitment for Community Mental Health Agencies”, supra n. 67, at 591 (IOC requires community mental health providers to both provide therapy and police their patients).

119 In one case in which a court ordered involuntary outpatient treatment, the state council of community mental health centers (CMHC) objected to being required to accept patients without an opportunity to be heard by the court concerning its ability to provide suitable treatment and medications. The court noted that the particular CMHC to which the patient was ordered to receive treatment had consented to accept the patient. Such consent is a condition precedent to the ordering of outpatient treatment at the facility since, in the court's view, “[n]o community mental health center should be ordered to accept a patient suffering form mental disability unless its officials are willing to do so”. R.I. Dept. of Mental Health v. R.B., 549 A.2d 1028, 1030 (R.I. 1988).

120 See I. Keilitz and T. Hall, “State Statutes Governing Involuntary Outpatient Civil Commitment”, supra n. 54.

121 See e.g., Rhode Island Dept. of Mental Health v. R.B., 549 A.2d 1028 (R.I. 1988); In re Bye, 524 P.2d 854 (Cal. 1974).

122 N.Y. Mental Hygiene Law, § 9.61; See Gould, K.K., “New Approach to Outpatient Commitment Launched in New York”, (1995) 1 Report on Mental Disability Law 9, at 14Google Scholar.

123 See R. Miller, “Commitment to Outpatient Treatment: A National Survey”, supra n. 55.

124 In 1984, the National Center on State Courts conducted the most comprehensive analysis to date on state IOC laws. This analysis demonstrates that IOC is not, in the words of one commentator, “a uniform concept capable of consistent implementation”. Survey by National Center for State Courts, cited in S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3, at 1362. In fact, with the exception of a few states which have recently enacted detailed IOC laws, most state laws contain few, if any, details regarding the standards or procedures for IOC. Ibid. See also I. Keilitz and T. Hall, “State Statutes Governing Involuntary Outpatient Civil Commitment”, supra n. 54.

125 Ibid.

126 See Gunn, L., “Origin and Implementation of North Carolina's Outpatient Commitment Law”, (1987) 52 Popular Government 17Google Scholar.

127 N.C. Gen. Stat. § 122C-263(d) (2).

128 N.C. Gen. Stat. § 122-568.4(c) (2); N.C. Gen. Stat. § 122C-263 (d) (1). Under this law, for example, a person who is committed to outpatient treatment may be forcibly transported to a clinic appointment if he or she fails to go voluntarily. N.C. Gen. Stat. § 122C-265 (1990).

129 Tenn. Code. Ann. § 33-6-104(a).

130 Ga. Code. Ann. § 88-501(12.1) (A).

131 See I. Keilitz and T. Hall, “State Statutes Governing Involuntary Outpatient Civil Commitment”, supra n. 54. One team of researchers has observed that given the situations in which IOC may be ordered, only a narrow class of individuals are eligible for IOC and that, in fact, that class includes only those who otherwise would be voluntary patients of the community system. See S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3, at 1362.

132 Mich. Stat. Ann. § 330.1469(1),(2),(6).

133 Arkansas (45 days); Hawaii (90 days); Michigan (60 days) for involuntary hospitalization but renewable periods of 180 days, 180 days, and 90 days respectively for IOC. In Georgia and Iowa no time limits are provided. See I. Keilitz and T. Hall, “State Statutes Governing Involuntary Outpatient Civil Commitment”, supra n. 54.

134 Ibid.

135 Matter of Tarplay, 566 N.E. 2d 71 (Ind. App. 1991) (contempt of court for failure to comply with outpatient order), rev'd In the Matter of Tarplay, 581 N.E. 2d 1251 (Ind. 1991); but see Matter of Utley, 565 N.E. 2d 1152 (Ind. App. 1991) (contempt held in error).

136 See S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3, at 1362. In Georgia, for example, a person who meets the standard for outpatient commitment (but not inpatient commitment) may nonetheless be held at an institution until the court hearing on the outpatient commitment order. See e.g., Ga. Code Ann. § 37-3-90(c) (2) (1986).

137 I. Keilitz and T. Hall, “State Statutes Governing Involuntary Outpatient Civil Commitment”, supra n. 54. For example, on July 1, 1994, the Mississippi legislature amended its commitment law to provide a specific enforcement mechanism for noncompliance by outpatient committees. This law provides that if a person committed to outpatient treatment fails or refuses to comply with treatment after a facility has made all reasonable efforts to obtain such compliance, he or she shall be taken into custody and returned to the facility. The person has the right, however, within ten days, to request a hearing regarding his forcible return to the hospital. See Miss. Code §§ 41-21-61 through 83 (1994).

138 I. Keilitz and T. Hall, “State Statutes Governing Involuntary Outpatient Civil Commitment”, supra n. 54.

139 Morrissey v. Brewer, 408 U.S. 471 (1972) (parole revocation due process case); State v. Carter, 64 N.J. 382, 316 A.2d 449 (N.J. 1974) (conditional release authorized of person found not guilty by reason of insanity); In re Bye, 12 Cal. 3d 96, 524 P.2d 854 (Cal. 1974) (revocation of outpatient status of person in drug program must meet certain due process requirements); Hooks v. Jaquith, 318 So.2d 860 (Miss. 1975) (court upheld decision of psychiatrist to recommit outpatient); Meisel v. Kremens, 405 F. Supp. 1253 (E.D. Pa. 1975) (Pennsylvania statute authorizing summary revocation of committed patients on leave violates due process); Deitrich v. Brooks, 27 Or. App. 821, 558 P.2d 357 (Ct. App. Or.1976) (patients returning from trial community visits of at least 90 days entitled to hearing); In re Anderson, 73 Cal. App. 3d 38, 140 Cal. Rptr. 546 (1977) (summary return of outpatient committed after being found not guilty by reason of insanity entitled to hearing); Lewis v. Donahue, 437 F. Supp. 112 (W.D. Okla. 1977) (Oklahoma statute authorizing revocation of convalescent or outpatient leave by summary order based upon ex parte application violates due process); C.R. v. Adams, 649 F.2d 625 (8th Cir. 1981) (court abstained from deciding constitutionality of Iowa law permitting revocation of outpatient status without notice and hearing); Application of True, 103 Idaho 151 (Idaho 1982) (due process requires that patient whose conditional release (outpatient status) is revoked is entitled to mandatory notice and hearing as soon as reasonably possible the patients return to the hospital); Richardson v. Ellerbee, 481 A.2d 473 (D.C. 1984) (revocation of outpatient status upheld so long as only for temporary hospitalization for examination and evaluation and if hospital notifies court within 24 hours of the revocation and reasons therefor); In re Cross, 99 Wash. 2d 379, 662 P.2d 828 (Wash. 1983) (revocation of outpatient status invalidated in the absence of finding that patient had not complied with conditions of release and that the notice was inadequate); In re Peterson, 360 N.W. 2d 333 (Minn. 1985) (recommitment following revocation of conditional release permitted without hearing provided that within 48 hours of recommitment court informed of recommitment and reasons therefor); State of Wisconsin ex rel. Watts v. Combine Community Services Board of Milwaukee County, 362 N.W. 2d 104 (Wisc. 1985) (statute that provides for revocation of outpatient status without adequate procedures violates due process); In re J.M.R., 146 Vt. 409 505 A.2d 662 (Vt.Sup. Ct. 1985) (order for continued involuntary outpatient commitment revoked and patient discharged because no longer satisfies standard for commitment); State v. Edmundson, 246 Mont. 241, 805 P.2d 1289 (Mont. 1990) (revocation of conditional release upheld and patient returned to hospital because of violation of terms of release in accordance with proper procedures); Birl v. Wallis I, 619 F. Supp. 481 (M.D. Ala. 1985) (reconfinement of conditional release patient without notice and hearing violated due process); Birl v. Wallis I, 633 F. Supp. 707 (M.D. Ala. 1986) (recommitment following violation of conditional release must provide same procedures as for initial involuntary commitment); In re James, 507 A.2d 155 (D.C. 1986) (recommitment following outpatient status revocation upheld only if hospitalization shown to be least restrictive alternative); In re B.H., 212 N.J. Super. 145, 514 A. 2d 85 (N.J. Sup. Ct. 1986) (only a court, not a psychiatrist, may revoke conditional release status under New Jersey law); In re G.K., 514 A.2d 1031 (Vt. 1986) (indeterminate involuntary outpatient treatment violates due process); Matter of Stokes, 546 A.2d 356 (D.C. 1988) (recommitment following outpatient status revocation upheld only if hospitalization shown to be least restrictive alternative and if patient meets standard of dangerousness required for involuntary inpatient commitment); R.I. Dept. of Mental Health v. R.B., 549 A.2d 1028 (R.I. 1988) (court may order outpatient commitment in lieu of hospitalization in the absence of statute authorizing such treatment); In re L.F., 761 S.W. 2d 581 (Tex. Ct. App. 1988) (medical evidence did not establish sufficient deterioration to warrant revocation of outpatient status and rehospitalization); In re Feenster, 561 A.2d 997 (D.C. App. 1989) (revocation of outpatient commitment order invalidated because no notice and hearing prior to rehospitalization); In re Roberds, 473 N.W. 2d 378 (Minn. App. 1991) (revocation of outpatient status and rehospitalization upheld because of failure to comply with conditions of outpatient commitment); Matter ofTarplay, 566 N.E.2d 71,(Ind. App. 1991); reh'g 581 N.E. 2d 1251 (Ind. 1991) (recommitment rather than contempt of court and jail sentence appropriate procedure for patient who refuses medication as condition of outpatient commitment order); Matter of Utley, 565 N.E. 2d 1152 (Ind. Ct. App. 1991) (contempt of court not appropriate for patient who fails to comply with outpatient order and who is not represented by counsel); Matter of Plummer, 608 A. 2d 741 (D.C. 1992) (revocation of outpatient status and rehospitalization must meet due process requirements); State v. Bryant, 127 Or. App. 68, 871 P.2d 129 (Or. Ct. App. 1992) (revocation of outpatient status must comport with due process requirements but state need not prove person is mentally ill if proved at initial commitment hearing), rev den, 877 P.2d 86 (1994). See also In re Mills, 467 A.2d 971 (D.C. 1983) (clear and convincing standard of proof not required in revocation of outpatient status hearing); In re W.R.B, 140 Wis. 2d 347, 411 N.W. 2d 142 (Wis. Ct. App. 1987) (extension of outpatient status upheld); People v. Hurt, 90 Cal. App. 974, 153 Cal. Rptr. 755 (Ca. Ct. App. 1979) (outpatient status of person found not guilty by reason of insanity upheld); Guardianship of John Roe, 411 Mass. 666 (1992); In re commitment of B.J., 212 N.J. Super. 145 (1986); In re McPherson, 176 Cal. App. 3d 332 (Cal. Ct. App. 1985).

140 S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3, at 1362.

141 Wisconsin ex rel. Watts v. Combined Community Services Bd., 122 Wis. 65, 362 N.W. 2d 104 (Sup. Ct.1985) (indeterminate outpatient commitment without periodic review violated equal protection); In re G.K., 147 Vt. 174,514 A.2d 1031 (1986) (indeterminate order for involuntary outpatient treatment violated due process); Birl v. Wallis I, 619 F.Supp. 481 (D.C. Ala. 1985) (reconfinement of outpatient by psychiatrist violated due process); Meisel v. Kremens, 405 F.Supp. 1253 (E.D. Pa. 1975) (summary revocation of patient's outpatient status by director of mental health facility violated due process); Lewis v. Donahue, 437 F.Supp. 112 (W.D. Okla. 1977) (reinstitutionalization of person on outpatient status without a hearing violated due process).

142 See e.g., Geller, J., “Clinical Encounters With Outpatient Coercion at the CMHC: Questions of Implementation and Efficacy”, (1992) 28 Community Mental Health Journal 81, at 82CrossRefGoogle ScholarPubMed.

143 R. Band, F. Goldfrank, G. Zanni, L. DeVeau, Wiant & Peele, “Outpatient Commitment: A Thirteen Year Experience”, supra n. 99.

144 V. Hiday and T. Scheid-Cook, “A Follow-up of Chronic Patients Committed to Outpatient Treatment”, supra n. 54; Hiday, V. and Scheid-Cook, T., “The North Carolina Experience with Outpatient Commitment: A Critical Appraisal”, (1987) 10 Int'l J. of Law and Psychiatry 215CrossRefGoogle ScholarPubMed.

145 Wood, W.D. and Swanson, D.A., “Use of Outpatient Treatment During Civil Commitment: Law and Practice in Nebraska”, (1985) 41 J. of Clinical Psychology 723Google ScholarPubMed.

146 R. Band, F. Goldfrank, G. Zanni, L. DeVeau, Wiant & Peele, “Outpatient Commitment: A Thirteen Year Experience”, supra n. 99; R. Miller, & P.B. Fiddleman, “Involuntary Civil Commitment in North Carolina: The Result of the 1979 Statutory Changes”, supra n. 114, at 985.

147 R. Band, F. Goldfrank, G. Zanni, L. DeVeau, Wiant & Peele, “Outpatient Commitment: A Thirteen Year Experience”, supra n. 99.

148 The researchers ascertained physicians' responses by sending questionnaires to the psychiatric staff at the hospital regarding their perceptions of IOC and its effectiveness. Ibid.

149 The major argument in support of IOC which the researchers drew from this study is that IOC increased the freedom of patients by decreasing their time in the hospital. The major criticisms of IOC drawn from this study was that the law lacked adequate enforcement procedures and did not include the appropriate criteria for selecting patients. Ibid.

150 See Maloy, K.A., “Analysis: Critiquing the Empirical Evidence: Does Involuntary Outpatient Work?” (Mental Health Policy Resource Center, Washington, D.C., 1992) 10Google Scholar.

151 W.D. Wood and D.A. Swanson, “Use of Outpatient Treatment During Civil Commitment: Law and Practice in Nebraska”, supra n. 145.

152 Ibid; see also K.A. Maloy, “Analysis: Critiquing the Empirical Evidence: Does Involuntary Outpatient Work?” supra n. 150.

153 V. Hiday and T. Scheid-Cook, “The North Carolina Experience With Outpatient Commitment: A Critical Appraisal”, supra n. 144.

154 Ibid. It may be possible that the committed outpatients were more willing than other patients to continue receiving services because they were more familiar with the mental health system.

155 Ibid. These researchers noted wide variance among the staff of the community mental health centers regarding their dedication to their work with these patients. See V. Hiday and T. Scheid-Cook, “The North Carolina Experience With Outpatient Commitment: A Critical Appraisal”, supra n. 144.

156 V. Hiday and T. Scheid-Cook, “A Follow-up of Chronic Patients Committed to Outpatient Treatment”, supra n. 54.

157 Ibid.

158 Ibid., at 57-58.

159 K.A. Maloy, “Analysis: Critiquing the Empirical Evidence: Does Involuntary Outpatient Commitment Work?”, supra n. 150.

160 T. Scheid-Cook, “Outpatient Commitment as Both Social Control and Least Restrictive Alternative”, supra n. 96, at 52.

161 Hiday, V. and Goodman, R.R., “The Least Restrictive Alternative to Involuntary Hospitalization, Outpatient Commitment: Its Use and Effectiveness” (1982) 10 J. of Law and Psychiatry 81CrossRefGoogle ScholarPubMed.

162 Ibid.

163 Ibid.

164 The study counted as a “success” those people who returned to the hospital voluntarily and those who returned involuntarily, but after 90 days. Those who were voluntarily or involuntarily admitted to hospitals were not included in the study. Ibid.

165 Ibid.

166 See T. Scheid-Cook, “Outpatient Commitment as Both Social Control and Least Restrictive Alternative”, supra n. 96, at 47.

167 R. Miller and P.B.Fiddleman, “Involuntary Civil Commitment in North Carolina: The Result of the 1979 Statutory Changes”, supra n. 114, at 1013.

168 Ibid.

169 Hiday has responded to the results of Miller and Fiddleman's study by arguing they are not conclusive since the clinicians did little, if anything, to enforce the outpatient commitment order when patients failed to comply, thereby removing the essential element of coercion after the initial order. Hiday, V., “Coercion on Civil Commitment”, (1992) 15 Int'l J. of Law and Psychiatry 359, at 371Google ScholarPubMed.

170 N.C. Gen. Stat. § 122-263 (1990).

171 Bernath, E., Freeman, J., Pickett, C., “Outpatient Involuntary Commitment”, presented at the National Council of Community Mental Health Centers, Las Vegas, April 2-5, 1986Google Scholar.

172 Ibid. See also Van Putten, R.A., Santiago, J.M., Berren, R., “Involuntary Outpatient Commitment in Arizona: A Retrospective Study”, (1988) 39 Hospital and Community Psychiatry 953, n. 6Google ScholarPubMed.

173 Fernandez, G. and Nygard, S., “Impact of Involuntary Outpatient Commitment on the Revolving-Door Syndrome in North Carolina”, (1990) 41 Hospital and Community Psychiatry 1001Google ScholarPubMed.

174 Ibid.

175 For a similar criticism of this study, see K.A. Maloy, “Analysis: Critiquing the Empirical Evidence: Does Involuntary Outpatient Commitment Work?”, supra n. 150.

176 B. Bursten, “Posthospital Mandatory Outpatient Treatment”, supra n. 102.

177 Zanni, G. and deVeau, L., “Inpatient Stays Before and After Outpatient Commitment”, (1986) 37 Hospital & Community Psychiatry 941Google ScholarPubMed.

178 Schneider-Braus, K., “Civil Commitment to Outpatient Psychotherapy: A Case Study”, (1986) 39 Bulletin of the American Academy of Psychiatry and Law 953Google Scholar.

179 R.A. Van Putten, J.M. Santiago, R. Berren, “Involuntary Outpatient Commitment in Arizona: A Retrospective Study”, supra n. 172, at 953.

180 This study has been criticized on the basis that it lacks a control group. See K.A. Maloy, “Analysis: Critiquing the Empirical Evidence: Does Involuntary Outpatient Commitment Work?”, supra n. 150.

181 Hiday criticizes the conclusions of this study based on the fact that the outpatient commitment law was not being enforced and therefore could not be evaluated fairly. See V. Hiday, “Coercion on Civil Commitment”, supra n. 169, at 372.

182 Ibid.

183 The researcher concluded that in order for IOC to succeed in Tennessee, the following actions were required: (1) to get tougher on patients (i.e. more frequent monitoring); (2) to get tougher on mental health clinics (i.e. additional funding); (3) and better screening of patients committed to IOC to include only those who show the greatest possibility of compliance, thereby excluding the most challenging “revolving door“ patients. Ibid.

184 Ibid.

185 G. Zanni and L. deVeau, “Inpatient Stays Before and After Outpatient Commitment”, supra n. 177.

186 Ibid.

187 This study has been criticized on the basis that it lacks a control group. See K.A. Maloy, “Analysis: Critiquing the Empirical Evidence: Does Involuntary Outpatient Commitment Work?”, supra n. 150.

188 K. Schneider-Braus, “Civil Commitment to Outpatient Psychotherapy: A Case Study”, supra n. 178, at 953-958.

189 Ibid.

190 R. Band, F. Goldfrank, G. Zanni, L. DeVeau, Wiant & Peele, “Outpatient Commitment: A Thirteen Year Experience”, supra n. 99.

191 R. Miller, “Outpatient Civil Commitment of the Mentally Ill: An Overview and An Update”, supra n. 5, at 110; citing R. Miller, “Commitment to Outpatient Treatment: A National Survey”, supra n. 55, at 267.

192 A 1988 study of Arizona's civil commitment law, could not confirm lower readmission rates as a result of the state's new IOC law, although shorter hospital stays were reported for patients during the first year after the law's enactment. R.A. Van Putten, J.M. Santiago, R. Berren, “Involuntary Outpatient Commitment in Arizona: A Retrospective Study”, supra n. 172.

193 Ibid.

194 Ibid.

195 V. Hiday and T. Scheid-Cook, “The North Carolina Experience With Outpatient Commitment: A Critical Appraisal”, supra n. 144.

196 G. Zanni and L. deVeau, “Inpatient Stays Before and After Outpatient Commitment”, supra n. 177, at 942.

197 See R.A. Van Putten, J.M. Santiago, R. Berren, “Involuntary Outpatient Commitment in Arizona: A Retrospective Study”, supra n. 172, at 955. Further, as Hiday admits, “[o]ne must look to changes at mental health centers (e.g. improved programs and services or increased outreach toward committed patients ) for partial explanation of the increases”. V. Hiday, “Coercion on Civil Commitment”, supra n. 169, at 371.

198 Green, J.H., “Frequent Rehospitalization and Noncompliance with Treatment”, (1988) 39 Hospital and Community Psychiatry 963Google ScholarPubMed.

199 Ibid.

200 Ibid.

201 V. Hiday and T. Scheid-Cook, “Outpatient Commitment for ‘Revolving Door’ Patients: Compliance and Treatment”, supra n. 102.

202 Ibid.

203 Ibid.

204 Geller, J., “The Quandaries of Enforced Community Treatment and Unenforceable Outpatient Commitment Statutes”, (1988) 14 J. of Psychiatry and Law 149CrossRefGoogle Scholar; J. Geller, “Rights, Wrongs and the Dilemma of Coerced Community Treatment”, supra n. 56.

205 Ibid.; see also V. Hiday, “Coercion on Civil Commitment”, supra n. 169, at 363.

206 J. Geller, “Rights, Wrongs and the Dilemma of Coerced Community Treatment”, supra n. 56.

207 Ibid.

208 Ibid. But see S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3, in which the authors argue that if there were more quality community services, patients would likely use them voluntarily. Geller, on the other hand, seems to “blame the victim” by arguing for the need for coerced treatment even before the evidences establishes that patients would avail themselves of quality services on a voluntary basis if they were available.

209 Henrickson, K., “Outpatient Commitment: Using An Underutilized Resource”, presented at the Institute on Hospital and Community Psychiatry, Denver, Colorado, October 15-18, (1984)Google Scholar, cited in R.A. Van Putten, J.M. Santiago, R. Berren, “Involuntary Outpatient Commitment in Arizona: A Retrospective Study”, supra n. 172, at 953, n. 2.

210 Greeman, M. and McClellan, T., “The Impact of a More Stringent Commitment Code in Minnesota”, (1985) 36 Hospital and Community Psychiatry 990Google ScholarPubMed.

211 Ibid.

212 Ibid.

213 Ibid; see also B. Bursten, Tenn. 1984 and V. Hiday and T. Scheid-Cook, “The North Carolina Experience With Outpatient Commitment: A Critical Appraisal”, supra n. 144.

214 Miller, R. and Fiddleman, P.B., “Outpatient Commitment: Treatment in the Least Restrictive Environment”, (1984) 35 Hospital and Community Psychiatry 147, at 150Google ScholarPubMed. In a follow-up to their 1982 study, these researchers surveyed mental health workers and others to determine why IOC had not become a significant “therapeutic modality”. They found that the following factors militated against the use of IOC in North Carolina: (1) reluctance of courts to use IOC when dangerousness is the criteria for commitment; (2) reluctance of community mental health staff to treat unwilling patients; and (3) lack of interest by community staff in IOC; and (4) lack of knowledge about IOC procedures.

215 Ibid., at 151.

216 Hiday, V. and Scheid-Cook, T., “Outpatient Commitment for ‘Revolving Door’ Patients: Compliance and Treatment”, paper presented to the American Public Health Association, New Orleans, October, 1987Google Scholar.

217 Ibid.

218 Ibid.

219 B. Bursten, “Posthospital Mandatory Outpatient Treatment”, supra n. 102, at 1258.

220 Hiday, V. and Scheid-Cook, T., “A Follow-up of Chronic Patients Committed to Outpatient Treatment”, (1989) 40 Hospital and Community Psychiatry 52, at 58Google ScholarPubMed. More recently, Hiday has admitted that certain successes attributed to IOC may be due instead to improved programs or increased outreach to committed patients, rather than the existence of IOC laws. See V. Hiday, “Coercion on Civil Commitment”, supra n. 169, at 371; see also T. Scheid-Cook, “Outpatient Commitment as Both Social Control and Least Restrictive Alternative”, supra n. 96, at 57.

221 Barel, Y., Durst, R., Rabinowitz, J., Kalian, M., Teitelbaum, A., Shlafman, M., “Implementation of Orders of Compulsory Ambulatory Treatment in Jerusalem” Int'l J. of Law and Psychiatry (in press)Google Scholar. In 1992, there were 57 committed outpatients, 117 in 1993 and 200 in 1994, according to Miriam Popper, Chief of Information and Evaluation Section of the Division of Mental Health Services, Ministry of Health, interview dated March 27, 1995, Jerusalem, Israel.

222 There is no indication in the records of the Knesset regarding who first introduced the concept of involuntary outpatient commitment to Israel. Among the initial legislative proposals to reform the 1955 law, several included references to IOC specifically or to the need for developing alternatives to involuntary inpatient commitment, in general. The first specific reference to IOC appears in the proposal submitted by the Ministry of Health's Forensic Committee in 1977. The Forensic Committee proposed extending the powers of the district psychiatrist to include ordering IOC. See Draft Proposal of the Ministry of Health, Forensic Committee (1977). A similar proposal was introduced by Drs. Barel and Ginat, two psychiatrists, whose proposed model of reform relied solely on the discretion of the district psychiatrist in issuing commitment orders, including orders for IOC. However, their proposal did not require IOC as a less restrictive alternative to involuntary hospitalization. See Barel, Y. and Ginat, Y., “Compulsory Medical Psychiatric Hospitalization: A Clinical Review of Israeli Law and a Proposal for Change”, paper presented at the International Congress on Psychiatry, Law and Ethics, Haifa (1983)Google Scholar. A third proposal required the commitment of a patient to the least restrictive alternative before permitting involuntary hospitalization, although it did not refer specifically to IOC. See E. Porush, “Standards for Involuntary Commitment of People with Mental Illness: The Present Law and the Desired Law”, supra n. 14. See generally, A. Levy and S. Davidson, supra n. 14.

223 The concept of involuntary outpatient treatment as a “less restrictive alternative” to involuntary inpatient treatment appeared in its most thorough form in the proposal by the Association for Civil Rights in Israel (“ACRI”). ACRI proposed including in the 1991 law a requirement that the “least restrictive alternative” treatments must be considered and used, including outpatient commitment; before an individual could be involuntarily hospitalized. ACRI's position was based on its view regarding the deficiencies in the 1955 law which did not guarantee to patients their right to treatment in the “least restrictive” setting, nor did it provide persons in need of mental health care the opportunity to maintain ties and work in their communities. ACRI also sought to address the concerns of those who were considered “gravely disabled” but did not meet the standards for commitment under the 1955 law. Apparently ACRI was initially of the opinion that people labeled “gravely disabled“ should not be committed involuntarily because they would not satisfy a test of “dangerousness,” and should instead be encouraged to obtain outpatient treatment. However, ACRI eventually changed its position and supported a provision in the law which would allow for persons determined to be “gravely disabled” to be committed under the non-emergency commitment provision, so long as their right to the “least restrictive alternative” treatment was guaranteed under the law. See ACRI Proposal, supra at n.14. But no right to treatment in the least restrictive setting was included in the final version of the 1991 law, and thus ACRI is now on record for supporting a law which authorizes the commitment of non-dangerous people. See Comments of the Association of Civil Rights in Israel on the Proposed law, dated March 29, 1989, sent to the Knesset drafting Committee on February 11, 1990. These comments and the ACRI proposal adopted provisions from a model law prepared by the American Psychiatric Association. See K. Stromberg and A. Stone, “A Model State Law on Civil Commitment of the Mentally Ill”, supra n. 90. However, this APA proposal, on which ACRI's proposal was based, met with much criticism in the United States on the grounds that it broadened the scope of commitment to non-dangerous (homeless) people without any perceived benefit. See e.g., A. Kanter, “Homeless Mentally Ill People: No Longer Out of Sight and Out of Mind”, supra n. 59, at 352-355; Rubenstein, L., “APA's Model Law: Hurting the People It Seeks to Help”, (1985) 36 Hosp. and Community Psychiatry 968, at 970Google Scholar.

224 Interview with Dr. Litman, May 11, 1995, Jerusalem.

225 Geller, J., “The Quandaries of Enforced Community Treatment and Unenforceable Outpatient Commitment Statutes”, (1988) 14 J. of Psychiatry and Law 149CrossRefGoogle Scholar.

226 See S. Stefan, “Preventive Commitment: The Concept and Its Pitfalls”, supra n. 3; S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3.

227 The role of counsel has been found to be particularly important to protect and individual's right to due process in the context of civil commitment. See e.g., Matter of Utley, 565 N.E. 2d 1152 (Ind. App. 1991) and cases cited therein.

228 See Jacobson, G. J., Apple of Gold: Constitutionalism in Israel and the United States (1993)Google Scholar; Sharfman, D., Living Without a Constitution: Civil Rights in Israel (1993)Google Scholar. Israel, unlike the United States, has no formal constitution to protect individual liberties. But to say that Israel has no written constitution is “at best half-truth …“ Jacobson, ibid., at 14. What Israel does have is a series of Basic Laws defining the constitutional limits of the State, as well as the Declaration of Independence and Supreme Court case law that has been said to constitute a “judicial bill of rights”. ibid., at 11, 132, 157, 234. See Basic Law: The Knesset, 12 L.S.I. 85 (1958); Basic Law: The Government, 22 L.S.I. 257 (1968); Basic Law: The Army, 30 L.S.I. 150 (1976); Basic Law: Jerusalem, Capitol of Israel, 34 L.S.I. 209 (1980). With the enactment of the two most recent Basic Laws, Basic Law: Human Dignity and Liberty, (1992) S.H. no. 1391, p. 150; Basic Law: Freedom of Occupation, (1994) S.H. no. 1454, p. 50, Israel now has its own codified bill of rights. See Barak, A., “The Legislative Revolution: Protected Human Rights”, (1993) 1 Law and Government in Israel 9 (in Hebrew)Google Scholar.

229 On June 7, 1995, the first comprehensive civil rights bill on behalf of people with disabilities was introduced in the Knesset by several Knesset members, representing many different party affiliations. The proposed law, entitled, Equal Rights for People with Disabilities, prohibits discrimination against and provides affirmative services and assistance to people with disabilities, including people with mental illness, in the areas of housing, employment, education and access to services. The proposed law was drafted by the staff and Board members of Bizchut, Israel's only organization dedicated to protecting the legal rights of people with disabilities, in consultation with David Lepofsky, a Canadian lawyer, and Arlene Kanter, a co-author of this article. The proposed law passed the first reading in October 1995. See Legislative Proposals No. 2525 at 628 (March 3, 1996).

230 See U. Aviram, “Care or Convenience: On the Medical Bureaucratic Model of Commitment of the Mentally Ill”, supra n. 29; Aviram, U., “Mental Health Policy and Services in Israel: Stagnation or Progress?”, (1994) 3 Social Security Studies 48Google Scholar; U. Aviram and D. Shnit, “Psychiatric Treatment and Civil Liberties in Israel: The Need For Reform”, supra n. 12; Shnit, D., “Civil Commitment: For Whom, By Whom and By What Criteria”, (1984) 8 Tel Aviv Law Review, 529Google Scholar.

231 Mental Health Law, sec. 12.

232 Basic Law: Human Dignity and Liberty, supra n. 228; Basic Law: Freedom of Occupation, supra n. 228.

233 A. Barak, “The Legislative Revolution: Protected Human Rights”, supra n. 228.

234 In Klal Insurance Ltd. v. Minister of Finance and Migdal Insurance Ltd. v. Minister of Finance, (1994) 48(v) P.D. 441, Judge Levin writes that “when enacting the Basic Laws, the Israeli legislature handed to the citizens of Israel a bill of rights on an “alchoki“ (or super-legal or constitutional) level. Thus, it can be stated that the basic principles defined in these two basic laws … are constitutionally based and that they determine, in effect,whether particular laws are valid or not”. Ibid., at 465. See also Egged v. Mashiach Ltd. (1994) 48(ii) P.D. 646; Shdulat Hanashim BiYisrael v. State, (1994) 48 P.D. 501; and Binkin v. State, (1994) 48(i) P.D. 290.

235 Basic Law: Human Dignity and Liberty, supra n. 228, secs. 2-8. Compare sec. 2: “The life, body or dignity of any person shall not be violated”, with sec. 4: “Every person is entitled to protection of his life, body and dignity”.

236 See Barak, A., “Human Dignity as a Constitutional Right”, (1994) 41 Hapraklit 271Google Scholar.

237 See Karp, Y., “Some Questions on Human Dignity According to Basic Law: Human Dignity and Liberty”, (1995) 25 Mishpatim 129Google Scholar.

238 The “limitation clause,” as it is known, appears in sec. 8 of the Basic Law: Human Dignity and Liberty. This section is apparently based on the limitation clause in the Canadian Charter of Rights and Freedoms since the language of the two are identical. See A. Barak, “The Legislative Revolution: Protected Human Rights”, supra n. 228. A similar limitation was imposed by Israeli courts on administrative decisions, in the absence of legislation, prior to the Basic Law: Human Dignity and Liberty. With the enactment of the Basic Law, this limitation clause now applies specifically to all Israeli laws. Since the enactment of the Basic Law: Human Dignity and Liberty, the Israeli Supreme Court has applied the limitation clause to existing legislation in several cases (although none of them involved the new Mental Health Law). In each of these cases, the existing legislation allegedly violated rights which, under the Basic Law, now have constitutional status. Thus, the Court emphasized that although it lacks the authority to revoke laws which predate the Basic Laws, it may now choose to impose a higher burden on the State to establish the absence of an alternative that poses less of a violation of the rights protected by the Basic Laws before the Court will sustain state action which violates such rights. See e.g., Michael Ben-Horin v. State (1994) 48(v) P.D. 329; Weissglass v. Weissglass (1994) 48(iv) P.D. 529; Euronet Kavei Zahav Ltd. v. Minister of Communication (1994) 48(v) P.D. 412; see also Klal Insurance Ltd. v. Minister of Finance and Migdal Insurance Ltd. v. Minister of Finance (1994) 48(v) P.D. 441.

239 Sec. 10 of the Basic Law: Human Dignity and Liberty states that “Nothing in this basic law affects the validity of law that existed prior to the coming into force of this basic law”.

240 See A. Barak, “Human Dignity as a Constitutional Right”, supra n. 236, at 273; See also Black, , “The Charter of Rights and Freedoms and Positive Obligations”, in Kaplan, W. and McReed, D., Law, Policy and International Justice (1993) 298Google Scholar; Currie, , “Positive and Negative Constitutional Rights”, (1988) 53 U. Chicago L.R. 864CrossRefGoogle Scholar.

241 A 1982 study for the American Psychiatric Association Task Force on Involuntary Outpatient Commitment, identified a significant problem in those states that did not distinguish between the criteria for inpatient and outpatient commitment. See Luskin, R.D., “Compulsory Outpatient Treatment for the Mentally Ill”, Report to the American Psychiatric Association Task Force on Involuntary Outpatient Commitment, March 1983Google Scholar.

242 See e.g., D.C. Code Ann. § 21-545(b) (1981); Alaska Stat. § 47.30.755(a) (1984); see e.g., In re James, 507 A.2d 155 (D.C. Ct. App. 1985); In re Stokes, 546 A.2d 356 (D.C. Ct. App. 1987) (court must find rehospitalization is least restrictive alternative for patient facing revocation of outpatient status).

243 Comments submitted by ACRI on the draft proposal for the 1991 law, March 29,1989 and October 31, 1990; Interview with Yehoshua Shoffman, April 24, 1995, former Director of the Association for Civil Rights in Israel, who proposed the inclusion of the “least restrictive alternative” language in the new law. Interview with Dr. Litman, former Director of Mental Health Services Division, Ministry of Health, May 11, 1995; See also R. Yaffe, D. Yakir, with M. Hovav, A. Levy and L. Sebba, “Civil Commitment of People with Mental Illness”, supra n. 14; Porush, “Standards for Involuntary Commitment of People with Mental Illness: The Present Law and the Desired Law”, supra n. 14.

244 The new Basic Law: Human Dignity and Liberty contains a limitation clause which may have the effect of reading into the Mental Health Law the “least restrictive alternative” requirement such that alternatives to hospitalization must be considered and used before involuntary civil commitment may be ordered. See supra n. 239. Although the new Mental Health Law does provide for some form of periodic review (sec. 28), indeterminate commitments may continue since the periodic review provision affords great discretion to the district psychiatrist and the Psychiatrist Committee. The periodic review provision does not require any judicial oversight, nor does it require the application of the same standards of proof and evidentiary burdens as required in the initial commitment stage. Under American caselaw, in order for a periodic review procedure to pass constitutional muster, it must include the identical standard of proof and evidentiary burdens as contained in the law governing initial commitments. It must also provide judicial oversight of the process. See e.g., Streicher v. Prescott, 663 F. Supp. 335, 343 (D.D.C. 1987) (patients constitutionally entitled to judicial review of commitment status); Wyatt v. King, 781 F. Supp. 750 (M.D. Ala. 1991); Wyatt v. King, 773 F. Supp. 1508 (M.D. Ala. 1991); Clark v. Cohen, 794 F. 2d 79,86 (3d Cir.), cert, denied, 479 U.S. 962 (1986); Doe v. Austin, 848 F. 2d 1386,1395-96 (6th Cir.), cert, denied, 488 U.S. 967 (1988); Fasulo v. Arafeh, 173 Conn. 473, 378 A. 2d 553, 556 (1977); State v. Fields, 77 N.J. 282, 390 A. 2d 574, 583 (1978). See also Parry, J., “Commitment and Recommitment: Shortcomings in the Application of the Law”, (1989) 9 Developments in Mental Health Law 25Google Scholar.

245 One researcher has observed that liability concerns were a major obstacle to the use of forced outpatient treatment in several states. See Owens, J., “Involuntary Outpatient Commitment: An Exploration of the Issues and Its Utilization in Five States”, (1985)Google Scholar, Paper prepared for the Division of Educational Services Systems Liaison of the National Institute of Mental Health, No. 85M046982501D at 24, 30, 38.

In the United States, mental health professionals are concerned about such liability issues. For example, certain involuntary outpatient commitment laws include specific provisions granting immunity to mental health professionals for acts arising from an outpatient commitment order. See e.g., N.C. Gen.Stat. § 1220-58 (Supp. 1983). No cases, however, were found involving liability of mental health professionals for acts of civilly committed outpatients. However, several cases have held therapists liable for the actions of voluntary outpatients. See e.g., Semler v. Psychiatric Institute of Washington, D.C., 538 F.2d 121 (4th Cir.1976); Peck v. Counselling Service of Addison County, 146 Vt. 61, 499 A.2d 422 (1985); Schrempf v. State, 66 N.Y.2d 289, 487 N.E. 2d 883 (1985); Lipari v. Sears Roebuck et al., 497 F. Supp. 185 (D. Neb.1980); see also Currie v. United States, 836 F. 2d 209 (4th Cir. 1987); Cain v. Rijken, 74 Or. App. 76, 700 P.2d 1061 (1985).

Further, both the American Psychological Association (in 1985) and the American Psychiatry Association (in 1987) have made virtually identical recommendations for legislative limits on the court-created duty of mental health professionals to warn potential victims of violence. Both organizations have proposed that therapists should not be held liable for the actions of their patients unless the patient has communicated an explicit threat to kill or seriously injure an identified or reasonably identifiable victim. This duty to warn may be discharged by reporting the threat to the victim or to a law enforcement agency where the victim resides, or by taking steps to involuntarily or voluntarily hospitalize the patient. These proposals also suggest that no liability should attach to any breach of confidentiality necessary to the discharge of the duty to warn or protect. See R. Miller, “Outpatient Civil Commitment of the Mentally Ill: An Overview and An Update”, supra n. 5, at 112-113.

246 Y. Barel, R. Durst, J. Rabinowitz, M. Kalian, A. Teitelbaum, and M. Shlafman, supra n. 221.

247 Ibid.

248 Ibid., at 3.

249 DrMark, Mordecai, former Director of Mental Health Services Division, Ministry of Health, “Mental Health Care Reform Under the National Health Care Insurance Act,” (January 22, 1995), paper presented at the First International Conference on Social Work and Mental Health Care, JerusalemGoogle Scholar.

250 The new Basic Law: Human Dignity and Liberty provides for judicial review of commitment orders to the extent that such orders violate basic rights. Such judicial review will necessarily examine the legitimacy of the legislation, based on good faith, reasonableness and logic. See A. Barak, “The Legislative Revolution: Protected Human Rights”, supra n. 228. Accordingly an argument may be presented that protecting family members from “mental anguish,” however defined, is not a legitimate purpose for which a hospitalization or IOC order can be issued.

251 Mental Health Law, sec. 4(a); sec. 38(h).

252 Mental Health Law, sec. 35(9). This section of the law provides that “[a] patient who has been committed involuntarily, committed either as an inpatient or outpatient, will be given medical treatment according to his medical condition, regardless of his objection”.

253 The Association for Civil Rights in Israel had proposed adding a section to the Mental Health Law which would have prohibited forced medical treatment “except in an emergency for involuntarily or voluntarily committed inpatients or outpatients, with the approval of the psychiatric committee”. This proposal was rejected by the Knesset drafting committee. See Comments of ACRI, dated October 31,1990. Members of the Knesset drafting committee indicated their rejection of this proposal with handwritten comments on ACRI's copy of the Comments.

254 Mr. Zvi Levine, Legal Advisor to the Ministry of Health stated that it “makes no sense” to allow committed patients to refuse treatment since the very purpose of the 1991 law is to forcibly treat patients who would not otherwise consent voluntarily to treatment. Interview with Zvi Levine, Legal Advisor, Ministry of Health, June 8, 1995, Jerusalem. See also Levy, A., “The New Law for Treatment of People with Mental Illness”, (1991) 5(3) Sihot 215, 217Google Scholar (“it has been clarified once and for all that the involuntarily committed inpatient (and outpatient) can be given forced treatment (with the exception of special treatments such as electroshock therapy).

255 See Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92,93 (1914) (“Every human being of adult years and sound mind has a right to determine what shall be done with his own body …”)

256 See e.g., Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972); Cobbs v. Grant, 501 P.3d 1 (Cal. 1972).

257 See Brooks, A., “The Constitutional Right to Refuse Antipsychotic Medications”, (1980) 8 A.A.P.L. Bull. 179, at 192Google ScholarPubMed.

258 See e.g., Davis v. Hubbard, 506 F. Supp. 915, 926-27 (N.D. Ohio 1980); see also Rhoden, N., “The Right to Refuse Psychotropic Drugs,” (1980) 15 Harv. L. R. 363Google Scholar; Winnick, B., “The Right to Refuse Mental Health Treatment: A First Amendment Perspective”, (1989) 44 U. Miami L. R. 1Google Scholar.

259 The first case to consider the a civilly committed person's right to refuse treatment is Rogers v. Massachusetts Commissioner of Mental Health, 478 F. Supp. 1342 (D. Mass. 1979), modified, Rogers v. Okin, 634 F.2d 650 (1st. Cir. 1980), vacated and remanded sub nom Mills v. Rogers, 457 U.S. 291 (1982), Rogers v. Commissioner of Dept. of Mental Health, 458 N.E. 2d 308 (Mass. 1983) (on remand). On remand, the court upheld the right of institutionalized patients to refuse medication. See also Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978), suppl., 476 F. Supp. 1294 (D.N.J. 1979), modified, 653 F.2d 836 (3d Cir. 1981), vacated and remanded, 458 U.S. 1119 (1982), on remand, 720 F.2d 266 (3d Cir. 1983). The final decision in the case recognizes the right of institutionalized patients to refuse medication and upholds New Jersey law outlining the procedures for overriding the patient's refusal. See also State ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 416 N.W. 2d 883 (1987); Rivers v. Katz, 67 N.Y. 2d 485, 495 N.E. 2d 337, 504 N.Y.S. 2d 74 (1986); Large v. Superior Court, 714 P. 2d 399, 406 (Ariz. 1986); In re Guardianship v. Roe, 383 Mass. 415, 421 N.E. 2d 40 (1981); Gundy v. Pauley, 619 S.W. 2d 730, 731 (Ky. Ct. App. 1981); In re K.K.B., 609 P. 2d 747, 749-52 (Okla. 1980); Perlin, M., “Decoding Right to Refuse Treatment Law”, (1993) 16 Int'l J. of Law and Psychiatry 151CrossRefGoogle ScholarPubMed.

260 See Rennie v. Klein, 720 F.2d 266 (3rd Cir. 1983) (“The Constitution does not tolerate warehousing patients or recklessly placing them … on antipsychotic drugs for administrative convenience..”.), ibid., at 270-271 (Adams, J. concurring); (“The use of drugs may not be justified purely on economic or administrative grounds…”). ibid., at 272, at 274 (Seitz C.J., concurring).

261 See e.g., Rivers v. Katz, 504 N.Y.S. 2d at 74, 78 (1986).

262 As one court has observed, “[a]n individual who has not been committed to a mental institution has a right to refuse medication sought to be administered against his will”. Dautremont v. Broadlawns Hospital, 827 F.2d 291 (8th Cir. 1987). In North Carolina, the IOC law permits a judge to order involuntary medication for committed outpatients, but explicitly forbids the use of physical force in its administration. N.C. Gen. Stat. § 122-58.4(c) (2).

263 See e.g., J. Geller, “Rights, Wrongs and the Dilemma of Coerced Community Treatment”, supra n. 56; M. Perlin, “Decoding Right to Refuse Treatment Law?”, supra n. 259, at 159.

264 See Kanter, A., “Abandoned But Not Forgotten: The Rights of Elderly People in State Psychiatric Institutions”, (1992) 19 N.Y.U. Review of Law and Social Change, 273Google Scholar; S. Schwartz and C. Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values”, supra n. 3, at 1336; Bleicher, , “Compulsory Community Care of the Mentally Ill”, (1967) 16 Cleveland Marshall L.R. 93Google Scholar.

265 See S. Schwartz and Costanzo, “Compelling Treatment in the Community: Distorted Doctrines and Violated Values,” supra n. 3; V. Hiday, “Coercion on Civil Commitment”, supra n. 169, at 373.

266 Before Israel proceeds further with IOC, such questions as these must be answered: Why was IOC enacted in Israel and why at this point in time? What are the specific goals of Israel's IOC law? What are the perceptions of those who were involved in implementing Israel's new IOC law regarding whether or not the new law is working? For whom? What are the perceptions of committed outpatients and their families regarding whether or not the new law is working? What are the criteria for determining the appropriateness of a particular patient for IOC and how are these criteria applied in individual cases? Do psychiatrists retain too much discretion under the law with respect to such decisions as the initial commitment decision, the duration of commitment, and the locus of care for patients facing involuntary outpatient commitment? What are the appropriate procedures for implementing IOC? To what extent does the Israeli IOC serve as a mechanism to coerce people into accepting treatment voluntarily? What are the requirements of due process in the Israeli IOC law and how are they implemented in practice? How can IOC be harmonized with other needs, principles, and rights, such as the right to treatment and the right to refuse treatment (which now exists only for voluntary patients in Israel)? Can the Israeli IOC law be enforced and if so, how? Are there sufficient funds or incentives provided to the community mental health system to enable or encourage it to provide services to this new IOC population? What is the effect of other laws, such as Israel's recently enacted National Health Insurance Law of 1994, on the provision of mental health services for the IOC population? (For a discussion of the effect of the new Health Insurance Law on mental health services, see Aviram, U., “Mental Health Services in Israel at a Crossroads: Promises and Pitfalls of Mental Health Services in the Context of the New National Health Insurance”, Int'l J. of Law and Psychiatry (in press)Google Scholar. How should the Israeli IOC law be evaluated? Is an unintended consequence of IOC in Israel the encroachment of the civil rights of people with mental illness? Finally, what are the outcomes of the Israeli IOC law and how do they compare with outcomes in the United States?