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A dangerousness criterion is a feature of the mental health law of most developed countries. A dangerousness criterion holds that mentally ill people may be given treatment without consent if they are deemed to be a risk to themselves or others. In many jurisdictions this dangerousness criterion is obligatory in the sense that treatment may be given if and only if non-consenting mentally ill people are assessed to be a danger to themselves or others. Despite its widespread use, we believe that the dangerousness criterion is unnecessary, unjustified and, in the case of the obligatory dangerousness criterion (ODC), is itself dangerous. We believe dangerousness criteria should be removed from mental health legislation. This paper sets out our reasons and proposes alternative criteria that should be employed.
THE ORIGINS AND IMPACT OF THE DANGEROUSNESS CRITERION
Dangerousness criteria are an integral part of the mental health legislation of most developed countries. The stricter ODC can be found in the mental health legislation of almost every state of USA and Australia, six European countries and in numerous other jurisdictions, including Israel, Russia, Taiwan and some regions of Canada. 1 2
Before the 1960s, laws generally authorised commitment simply on the basis that a person was "mentally ill and in need of treatment". Around this time however, a confluence of factors, including the anti-psychiatry 3 and the civil rights 4 movements and the advent of more effective treatments that allowed community management, 5 served to bring the process of civil commitment to public and legislative attention, and this beneficent approach was brought into question.
An ODC was included in the statutes of the District of Columbia in 1964 and California in 1969. 6 However, the near universal adoption of the obligatory dangerousness in the US has been attributed to the Supreme Court decision in O'Connor v. Donaldson . 7 After this case it was argued that it was unconstitutional to hold a non-dangerous patient, although this may not have been the Court's intent. 8 9 An alternative view, forwarded by Miller, is that old mental health laws were impermissibly vague and broad, and that tighter legislation without a dangerousness criterion may have survived. 10
As they came to work under the new legislation, psychiatrists cited anecdotal cases of patients...