Delaware’s involuntary commitment laws violate a patient’s right to due process

November 12th 2019

Dear Governor Carney & Delaware General Assembly Members:

I am writing to follow up on my September 30th message about working together to change the involuntary commitment process in Delaware.  

Last month marked four years since Caroline Ekong lost her life, and Christopher Frick lost his freedom.  The tragic outcome of this doctor/patient relationship highlights an obvious discrepancy in how Delaware’s legal framework protects the rights of people subject to severe deprivations of liberty.

Christopher Frick and Dr. Caroline Ekong

It doesn’t take a legal scholar to recognize that Frick had greater due process protection after he confessed to killing Ekong compared to when she decided to deprive him of his freedom for medical reasons. 

The people of Delaware need a civil commitment process that does a better job of protecting patients’ civil rights. Changing Delaware’s civil commitment procedure in a way that safeguards a patient’s right to due process will serve to prevent future tragedies like this one.

Alexander Tsesis, Assistant Professor at Loyola University, School of Law in Chicago is the legal scholar who wrote “Due Process in Civil Commitments,” which was published in the Washington and Lee University Law Review in 2011.

Professor Tsesis’s writing cogently explains why and how we should change the process used in Delaware to deprive people deemed to be suffering from a mental health condition of their liberty. 

Tsesis argues, that: 

…the beyond a reasonable doubt standard of proof is needed to closely scrutinize evidence of mental disease and dangerousness.

Tsesis, 68 WASH. & LEE L. REV. 253 (2011)

An examination of the Delaware Code for Health and Safety from CHAPTER 50 of TITLE 16 reveals that it does not utilize the “beyond a reasonable doubt” standard to closely scrutinize evidence of mental disorder and/or dangerousness.

Writing about the landmark case in 1975 (O’Connor v. Donaldson), Tsesis explains why the Supreme Court’s decision placed due process limits on involuntary psychiatric commitments:

The ambiguity of a mental illness diagnosis and the extent to which civilly committed patients are deprived of their liberty rendered the mere diagnosis of mental illness without a finding of dangerousness inadequate to meet due process requirements. Social deviance may make a person the object of animus but cannot excuse restrictions on liberty. Demonstrating an understanding that mental illness was a powerful social label that could be misapplied, Justice Potter Stewart, writing for the majority, asserted that “the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution.”

Tsesis, 68 WASH. & LEE L. REV. 253 (2011)

Comparing involuntary commitments to being imprisoned, Tsesis argues that:

Involuntary commitments are most closely related to criminal punishments because both adjudicate whether respondents whom society has found to be too dangerous should be at liberty. Both involve severe deprivations of liberty.

Without judicial oversight, the potential for abuse is enormous in both areas of law. The [Supreme] Court recognized that civil commitment, like imprisonment, “constitutes a significant deprivation of liberty that requires due process protection.”

Tsesis, 68 WASH. & LEE L. REV. 253 (2011)

Unwarranted deprivations of liberty are egregious violations of a right deemed sacrosanct in this country – the right to be free while operating within the bounds of the law. 

Highlighting the subjective nature of psychiatric diagnoses, Tsesis argues that judicial oversight plays a critical role in safeguarding patients’ civil rights:

The social concern for safety is reflected in the dangerousness component of the involuntary institutionalization test. A state can only confine mentally ill persons who have demonstrated a propensity for dangerous conduct. If mental illness is difficult to prove, the dangerousness element is even more difficult because it involves a prediction of future behavior. …

The need for judicial oversight of involuntary commitments is acute because psychiatric diagnoses rely on professional judgments, intuitions, and algorithms to a greater degree than ordinary medical diagnoses, which have more verifiable biological components.

Tsesis, 68 WASH. & LEE L. REV. 253 (2011)

Tsesis concludes by explaining why the “beyond a reasonable doubt” standard should be utilized when evaluating a patient for involuntary commitment:

The beyond a reasonable doubt standard provides the best means available for evaluating whether the petitioner seeking to institutionalize another has met the two criteria of Addington. Factors tending to show the existence of mental illness and danger to self or others are stigmatizing.  

Unless both can be proven to a near certainty, the liberty interests of the party challenging the commitment should significantly outweigh the government’s interest to indefinitely hospitalize the respondent. 

The clear and convincing standard provides a high probability of proof, but proof beyond a reasonable doubt offers near certainty that civil commitment has not been erroneously imposed. 

Tsesis, 68 WASH. & LEE L. REV. 253 (2011)

Thank you for your time and consideration of this proposal, and heads up that I will be reaching out to each of you by phone to introduce myself, and to engage you and/or your staff directly on the best way to move forward.


Francesco Bellafante
Creator & Executive Editor
The Nellie Bly Project

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