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The past 20 years have been marked by an increasing movement away from involuntary commitment of the mentally ill in the direction of voluntary hospitalization.1 It is estimated that more than 70%. of patients admitted to public mental hospitals are vol un tar ? admissions2 and that an even higher percentage of private hospital admissions are voluntary. This trend has been supported by the medical and legal professions as furthering both the legal rights of patients and their treatment needs.3,4
In comparison with involuntary commitment, voluntary hospitalization is thought to be more likely to succeed, to allow earlier intervention, and to be less stigmatizing? Principles of cognitive and social psychology explain why allowing a patient to make a choice in favor of a therapeutic intervention like hospitalization increases the potential that such treatment will be efficacious.7,8
Although voluntary hospitalization thus has man ? advantages and is widely used, existing research suggests that a substantial number of patients who are admitted voluntarily to mental hospitals may not satisfy traditional standards of competency.9-10 Moreover, existing hospital and judicial practices usually do not require a formal or even informal determination of competency before accepting a patient's consent to voluntary hospitalization.11,12
The Supreme Court's recent decision in Zinermon v Burch (110 SCt 975 [1990]) calls these existing practices into question and will produce revisions in state practices governing procedures for the acceptance of voluntary admissions. Unfortunately, the Court's language in Zinermon was unduly broad, giving rise to the possibility that legislative and administrative responses to the decision could go too far, potentially transforming the voluntary hospitalization process in wavs that could be detrimental.
This article analyzes the Zinermon decision from the perspective of therapeutic jurisprudence,1314 suggesting that the Court's language could have unintended antitherapeutic consequences. As a result, the Court's unduly broad language should be read narrowly. Zinermon should not be construed to require a formal determination of competency in every case. Such a broad reading would make voluntary hospitalization resemble the involuntary admission process in ways that would be costly and that could undermine much of the therapeutic value of voluntary hospitalization.
ZINERMON v BURCH
Darryl Burch, whose condition was later diagnosed as paranoid schizophrenia, was found wandering along a Florida highway, bruised, bloodied, and disoriented. Me was...