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Stanford Law ReviewFebruary, 1988

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*773 MENTAL HOSPITALIZATION OF TROUBLESOME YOUTH: AN ANALYSIS OFSKYROCKETING ADMISSION RATES

Lois A. Weithorn [FNa]

Copyright 1988 by the Board of Trustees of the Leland Stanford Junior

University; Lois A. Weithorn

Rates of admission [FN1] of children and adolescents to inpatient mental health facilities have increased steadily during thiscentury. Although deinstitutionalization [FN2] policies of recent decades successfully reduced adolescent admission rates tostate and county mental hospitals, adolescent admission rates to psychiatric units of private hospitals have jumpeddramatically, increasing over four-fold between 1980 and 1984. [FN3] In addition, data reveal that rates of psychiatricadmission [FN4] of children and adolescents to private hospitals are not only rising, but are doing so at a steadily acceleratingpace. [FN5]

In this note, I contend that the rising rates of psychiatric admission of children and adolescents reflect an increasing use ofhospitalization to manage a population for whom such intervention is typically inappropriate: *774 'troublesome' youth whodo not suffer from severe mental disorders. I describe those factors that have increased society's demand for institutionalsolutions to the problems presented by troublesome youth, and explain why psychiatric facilities, rather than some otherresource, have become society's 'makeshift' solution to these problems. Finally, I present a series of proposals for systemicreform.

In Part I, I briefly review the history and current structure of the three primary systems for the care and control of children inthe United States (the child welfare, juvenile justice, and mental health systems), providing a context for the discussions ofinstitutionalization trends that follow. In Part II, I examine the nature and extent of rising admission rates, and refute theassertion made by some mental health professionals that these rates reflect an appropriate use of inpatient treatment. I reviewdata indicating that a large proportion of adolescents in inpatient psychiatric facilities do not have severe or acute mentaldisorders. Many are troublemakers whose behavior is quite disturbing to their families and communities. And, although thesejuveniles and their families often need some type of 'outside' assistance, mental hospitalization is an inappropriate response totheir difficulties. Not only is this treatment form a poor match for the needs of this population, but it is frequently lesseffective and more expensive than are community-based alternatives. Furthermore, hospitalization restricts liberty andpresents risks of substantial psychological and physical harm to some children.

In Part III, I describe those factors that have stimulated an increasing demand for institutional services for troublesome youth.Increasing rates of divorce and the social and economic circumstances that typically accompany a divorce have led to greaternumbers of children and adolescents experiencing adjustment problems and have interfered with the abilities of families tohandle these problems within the context of the home. Increasingly, families are reaching out for help to external resources,such as mental health professionals and juvenile justice authorities. However, recent legal reforms in the juvenile justicesystem have made that system relatively inaccessible to families desperate for an intensive intervention from outside of thefamily. Many children now hospitalized in mental health facilities probably would have been admitted to juvenile justicefacilities prior to recent efforts to deinstitutionalize the juvenile justice system.

Pursuing this theme in Part IV, I explain further why institutionalization in the mental health system is increasingly becomingthe intervention-of-choice for the care of difficult children. Mental hospitalization is accessible, affordable, and convenientbecause of a relative absence of meaningful legal or other scrutiny of the appropriateness of juvenile admissions and becauseinsurance coverage typically permits, if not encourages, overuse of mental health institutions. The convergence of economicfactors (including the rise of corporate *775 medicine), a willing mental health establishment, mallesable psychiatric

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diagnostic categories, and social attraction to the medical approach to deviance has facilitated this shift in society's attemptsto manage difficult children.

Finally, in Part V, I describe a four-part proposal for reform. The elements of the proposal are interdependent; a less thancomprehensive solution is likely to fail (as did juvenile justice reform) to provide a truly improved situation for troublesomeyouth and their families. The proposal recommends (1) fundamental reform in private and governmental insurance coverage,reversing the current preference for inpatient, as opposed to community-based, interventions, (2) development of a networkof effective and accessible community-based services that are available to families-in-need, (3) enactment and enforcementof state policies requiring scrutiny of the appropriateness of juvenile admissions to psychiatric facilities, and (4) statemonitoring of the growth and activities of private psychiatric facilities.

I. INSTITUTIONAL SYSTEMS FOR THE CARE AND CONTROL OF YOUTH IN THE UNITED STATES

A. The Development of Institutional Systems

Institutions [FN6] for the care and control of dependent or 'deviant' individuals did not always exist in this country. Onlygradually did a complex network of institutional systems develop, with facilities corresponding to the three primary legalsystems of child care and control: the child welfare, juvenile justice, and mental health systems. As the following summaryreveals, the relative use of these distinct institutional systems has changed radically during our nation's history.

Prior to the American Revolution, communities relied almost exclusively on noninstitutional methods to control 'deviants'and to care for dependent persons. [FN7] Throughout the 1700s, the poor traditionally were supported while living either intheir own homes or in the homes of community members who were paid by the town to provide care for destitute boarders.Abandoned children and orphans often lived with neighbors. [FN8] Although the first 'lunatic asylum' in the colonies wasfounded in Williamsburg, Virginia, in 1769, the care of the 'insane' rested largely with relatives or friends. [FN9] Penalmethods also were noninstitutional, with reliance on corporal punishment, stocks, fines, *776 and expulsion of nonresidentoffenders. [FN10]

The nineteenth century witnessed the creation and growth of a range of institutions in the United States, includingpenitentiaries, insane asylums, almshouses, and specialized child care institutions such as orphan asylums and houses ofrefuge. [FN11] Orphan asylums, the forerunners of modern child welfare institutions, had flexible admission policiespermitting supervision of a broad spectrum of children. [FN12] Even if a child's parents were alive, he might be admitted ifauthorities perceived his parents to be providing inadequate supervision, moral training, or financial support. Thepredominant philosophy was to avoid 'penaliz ing an unfortunate child for the fact of his parents' survival.' [FN13] Removalof children from their parents' care was seen as a preventive measure, designed to ensure that the children would not become'pests to society' or 'tenants of . . . prisons.' [FN14]

The first house of refuge was established in 1824 in New York to serve juvenile delinquents and other 'wayward' children,and, in the next decades, other such houses were founded in many major cities. [FN15] Viewing juvenile delinquency as aresult of exposure to community vice and a lack of family discipline, officials sought to remove from their community minorsguilty of petty criminal offenses. Like the orphanages, houses of refuge cast a wide net, catching also disobedient and other'wayward' children. [FN16] Whereas prior to the 1900s, minors guilty of serious crimes were incarcerated in penitentiarieswith adults, [FN17] efforts to separate juveniles and adults [FN18] eventually succeeded, aided by the inception of thejuvenile court system in the early 1900s. [FN19]

These reforms also reflected a 'treatment' philosophy that viewed the juvenile court as providing needed ameliorative care.[FN20] This emphasis on the needs of the child, rather than on the act that triggered the court's authority, had importanteffects. Most significant was the fact that the three populations under juvenile court jurisdiction--delinquents, statusoffenders, and the dependent or neglected--often received similar dispositions. [FN21] Thus, status offenders (juveniles who*777 commit noncriminal acts that would not be offenses but for the minority status of the offender) were subject to the fullspectrum of juvenile court dispositions for behaviors such as profane language, 'promiscuity,' and being 'beyond parentalcontrol.' [FN22] Dependent or neglected nonoffenders were institutionalized to 'save' those 'unfortunates' whose homeenvironments were deemed to be inadequate. [FN23] Exercising broad dispositional discretion, the juvenile court could senda child in any of the three general subgroups to a foster home, an institution for the dependent or neglected, or an institutionfor juvenile delinquents. [FN24]



Although this 'hands-on' policy of intervention into the lives of children perceived to be troublemakers or in need of stateprotection became increasingly embedded in our nation's tradition, the use of mental hospitals for children was rare prior tothe twentieth century because serious mental 'disease' was thought to occur principally during the adult years. [FN25] In fact,the mental health system was not used to any significant degree for the institutionalization of children until the 1960s. [FN26]

B. Modern Child Care and Control Systems

Three primary systems authorizing legal intervention into, and control over, the lives of children and their families coexist inevery state today. These systems operate under separate statutory authority and, theoretically, have different mandates thatfocus on separate segments of the juvenile population. [FN27]

1. The child welfare system.

The child welfare system developed out of society's desire to protect children whose parents were absent, were judged to beinadequate in providing material, physical, or emotional care, or acted in ways that placed their children in danger. [FN28]States are typically empowered to *778 intervene in families if a child has been 'neglected' or 'abused,' and may order a broadrange of measures, including the removal of a child from the custody of her parents. [FN29] State statutes also provide for thepermanent termination of parental rights where interventions have been unable to improve the home situation and the child'scontinued contact with her parent(s) is viewed as contrary to her best interests. [FN30] The authority of the state to intrudeupon the privacy of the family has led to many legal challenges, both to the substantive standards that define thecircumstances in which the state may intervene and to the due process protections afforded parents once the state has takenaction. [FN31] The system remains open to criticisms that it is, at times, either over- or under-intrusive in families, that itapplies overly subjective criteria, [FN32] and that it intervenes in ways inconsistent with children's best interests. [FN33]

2. The juvenile justice system.

The juvenile justice system has broad discretionary latitude to intervene in the lives of 'delinquents' and 'status offenders.'[FN34] Whereas delinquents are minors whose behavior violates criminal statutes, status offenders are minors brought to theattention of juvenile court for acts of truancy, disobedience to their parents, running away from home, and other forms of'incorrigible' troublesome behavior. [FN35]

A primary goal of the juvenile justice system, manifested in its broad reach and dispositional latitude, is the rehabilitation andbenevolent correction of 'wayward children.' [FN36] Other goals, however, coexist with the state's parens patriae mission.Like the criminal justice system, the juvenile justice system also attempts to protect society by incapacitating dangerouspersons, to deter future misbehavior, and to punish conduct judged to deserve society's wrath. Whether the system hassucceeded in accomplishing these objectives, and whether these objectives even can be pursued simultaneously withoutundercutting each *779 other, has been the subject of much debate and many calls for reform. [FN37]

Beginning a decade of active scrutiny of the juvenile justice system in the mid-1960s, the Supreme Court required that courtsprovide to juveniles certain due process protections accorded adult offenders. [FN38] Nonetheless, commentators continue tocriticize the juvenile justice system's authority as too broad, too discretionary, and largely unfettered. Critics argue that thecurrent system allows courts to intervene excessively in the lives of minors viewed by society as deviant. [FN39]

3. The mental health system.

The mental health system consists of a wide network of public and private inpatient, outpatient, and 'intermediate' careresources (such as halfway houses and day hospitals). [FN40] The system's institutions, developed primarily in response tosociety's concerns about the aberrant behavior of adults, ideally provide therapeutic care to those suffering frompsychological disorders. [FN41] They were also designed to identify and incapacitate those mentally disturbed individualswhose conduct poses a threat to themselves or to society. [FN42]

Growing concerns in the 1960s and 1970s about the unchecked discretion of courts and mental health professionals to restrictthe liberty of persons through incarceration in mental institutions led to judicial reforms, such as procedural protections andsubstantive standards, to guard against improper involuntary hospitalization. [FN43] But these reforms *780 typically did notextend to juvenile hospitalization procedures. [FN44] Indeed, through the mid-1970s, most states still permitted parents orguardians to admit children in their custody to inpatient mental health facilities without any form of judicial oversight.



[FN45]

This lack of scrutiny of parental decisions is consistent with the traditional view that parents should have the power toconsent to health care services for their minor children. [FN46] Thus, minors admitted to psychiatric facilities based uponparental consent were regarded as 'voluntary' admittees, even if they were unwilling patients. [FN47] However, the 1970switnessed many challenges to these so-called voluntary admission statutes. [FN48] Consistent with expansions in the rightsof children [FN49] *781 and of adult psychiatric patients, [FN50] lower federal courts addressing the constitutionality ofparental admission statutes held that parental discretion checked only by psychiatric judgment was insufficient to protectminors' liberty interests. [FN51] In 1979, however, a divided United States Supreme Court expressly rejected the holdings ofthese cases. In Parham v. J.R., [FN52] the Court held that parental discretion, reinforced by the judgment of admitting staffthat inpatient treatment was medically necessary, was adequate to protect minors' constitutional interests. Formal due processprotections and strict substantive standards of the type required for the civil commitment of adults were deemed unnecessary.

Parham left the door open for states to provide protections to minors beyond the articulated constitutional minimum.Presently, state statutes vary in the protections they afford minors for whom mental hospitalization is sought. [FN53] Thesestatutes range from those that apply virtually the same procedural protections and substantive commitment criteria to minorsas to adults [FN54] to those that require little more than the Parham minimum. [FN55] The dimensions on which state lawsvary include: the extent to which they require any type of review prior to the admission of a minor beyond that performed byadmitting staff; [FN56] the timing of such review; [FN57] whether such review is mandatory or triggered by petition; [FN58]the form and process of such review and the concomitant *782 rights of prospective patients (such as right to counsel);[FN59] the substantive standards applied in such review; [FN60] the role, if any, minors of various ages are given inchoosing or refusing admission and in triggering any review process; [FN61] and the extent to which admissions to privatefacilities are governed by statute. [FN62] In general, however, minors are significantly less able than are adults to resistmental hospitalization sought for them by others. The Parham decision will be discussed in greater detail below, [FN63]particularly as it relates to recent increases in psychiatric inpatient admissions of minors. A description of those increases andof the children that they represent is the subject of the following section.

*783 II. INCREASING JUVENILE ADMISSIONS AS A REFLECTION OF THE INAPPROPRIATEPSYCHIATRIC HOSPITALIZATION OF TROUBLESOME YOUTH

A. Rising Rates of Juvenile Mental Hospitalization

Between the 1920s and the 1970s, admission rates of minors to mental hospitals increased more than eight-fold. [FN64] Themost substantial increases occurred after World War II, with a doubling in the rate between 1950 and 1970. [FN65] Nationaldata reveal that, between 1971 and 1980, admission rates for children and adolescents continued to rise, although mostnotable was the shift in the location of hospitalization from public to private facilities. [FN66] Thus, whereas in 1971 privatehospital admissions accounted for 37 percent of juvenile mental hospitalizations, in 1980 the proportion had risen to 61percent. [FN67] No national data on rates of public mental hospitalization are available beyond 1980. However, data reveal afour and one-half fold increase in national juvenile admissions to private psychiatric hospitals between 1980 and 1984.[FN68] The available statistics on psychiatric admissions to private *784 general hospitals during that period also indicatestriking upsurges, as high as a tripling of rates in one state, Minnesota. [FN69] Professor Paul Lerman contends that theprivate sector of the mental health industry is the fastest growing system of juvenile institutional care or control in the UnitedStates. [FN70]

Some have argued that the recent dramatic increases in admissions of minors for inpatient mental health treatment reflect anappropriate societal response to allegedly increasing levels of serious emotional disorder experienced by America's youth,[FN71] while others have concluded that a sizable proportion of recent juvenile admissions are inappropriate. [FN72]Because no epidemiological data exist that can establish whether serious childhood mental disorders are more prevalent todaythan in prior years, [FN73] any conclusions about changes in prevalence rates over *785 time must be inferred from moregeneral data and observations, such as those related to increasing rates of adolescent suicide [FN74] and divorce. [FN75] Buteven assuming arguendo that the frequency and magnitude of psychological distress experienced by children and adolescentshave increased in recent years, the existence of such phenomena does not necessarily support the position that increased useof mental hospitalization for these juveniles is an appropriate societal response to such a problem.

B. The Appropriateness of Juvenile Mental Hospital Admissions



There exist no criteria, commonly accepted or applied within the fields of child and adolescent psychiatry and psychology, toguide decisions about juvenile mental hospital admissions. Various professional and licensing/accreditation organizationshave promulgated sets of standards, [FN76] but neither the American Psychological Association nor the AmericanPsychiatric Association has developed formal criteria. [FN77]

In the absence of professional guidance in the form of standards, certain rather vague and overly broad criteria have beenpromulgated. These criteria may falsely convey a level of precision in admission decisions *786 that does not exist. TheNational Association of Private Psychiatric Hospitals ('NAPPH'), an organization whose members may have a financialinterest in high admission rates, [FN78] publishes criteria [FN79] that could be used to justify the hospitalization of mosttroublesome, and many not-so-troublesome, juveniles. Not only do these criteria cite 'sexual promiscuity' as an example of'self-defeating' and/or 'self-destructive' behavior necessitating 'immediate acute-care hospitalization as the only reasonableintervention,' but they fail to define what type of sexual activity constitutes 'promiscuity.' [FN80] Such a standard allowsanyone using the guidelines to apply personal moral standards in making admission decisions. No link between the sexualactivity and a basic mental disturbance must be demonstrated prior to admission; the link apparently is presumed. TheNAPPH criteria mention as another justification for hospitalization 'inability to function' in one of the following areas: familylife, vocational pursuits, and 'choice of community resources.' [FN81] The commentary accompanying the criteria impliesthat a teenager who prefers certain nonfavored social activities (such as listening to punk rock music) over attending scout orchurch youth group meetings may be making a sufficiently poor 'choice of community resources' to justify hishospitalization. [FN82]

Of currently existing standards, the most useful are those developed by the American Academy of Child and AdolescentPsychiatry ('AACAP') [FN83] because of their relative specificity and congruence with more general legal and clinicalprinciples. Basically, these standards reflect the perspective that inpatient treatment should be recommended only when'less-intensive' alternatives, such as outpatient and other community treatments, have been shown to be inadequate. [FN84]This view is not unique to the AACAP. The doctrine of the 'least restrictive alternative' reflects the legal policy thatinterference with the liberty of those experiencing psychological problems should be permitted only when no less restrictiveor intrusive alternatives exist. [FN85] The cautious use of inpatient treatment also recognizes that hospitalization, like all*787 mental health interventions, ultimately is geared toward helping its recipients adjust to life in the community, [FN86]and that extended isolation from the community often is counterproductive to that goal, regardless of other benefits of suchintensive treatment. [FN87] Other factors also argue against casual use of inpatient resources. As will be described below,empirical studies have found hospitalization to be less effective [FN88] and more expensive [FN89] than arecommunity-based interventions. Further, inpatient treatment is not without its risks of harmful effects on those who receive it.[FN90] All of these factors converge to support the AACAP philosophy of recommending inpatient treatment only in limitedcircumstances.

The AACAP recommends that hospitalization for children and adolescents, even for a period of time as brief as two weeks,be used only when children are having severe problems that are primarily attributable to a 'psychiatric disease.' [FN91]Criteria justifying hospitalization include, for example: (a) 'acute disabling symptoms or mental illness such as impairedreality testing, disordered or bizarre behavior, psychotic organic brain symptoms . . .,' (b) 'acute danger to property or self orothers . . . attributable to primary psychiatric disease . . .,' and (c) 'severely impaired social or family or educational orvocational or developmental functioning.' [FN92] Lengthier hospitalizations require stronger justification that twenty-fourhour care is in fact needed. Such justification may include establishing that patients continue to be dangerous to themselvesor others, or that the home environments to which they would be returned are inadequate or problematic (as where parentsmay be actively mentally ill or abusing drugs or alcohol). [FN93]

Applying the general clinical, scientific, and legal principles that *788 support the AACAP philosophy, I will argue belowthat, although many seriously emotionally disturbed adolescents benefit from the intensive and structured care of an inpatienttreatment setting, a large proportion (perhaps as great as one-half to two-thirds) of recent juvenile admissions to psychiatricfacilities are inappropriate. First, many adolescents admitted to psychiatric facilities in recent years did not have severe oracute mental illnesses, nor did their behavior require an inpatient environment in order to protect them or others from theirpotentially dangerous conduct. Second, in many cases psychiatric hospitalization provides less effective treatment than dooutpatient alternatives. [FN94] Early empirical findings suggest that certain family-oriented and community-based programsare quite successful at alleviating a range of serious or disturbing child, adolescent, and family problems. Third, psychiatrichospitalization inherently restricts liberty and invades privacy, rendering it less desirable than community-based treatment. Italso entails other risks, such as the experience of physical or psychological trauma, to a degree not present in



community-based treatment. Whereas these disadvantages of hospital-based psychiatric treatment may be justified whenchildren require institutional restraint in order to protect them and others from their behavior, it clearly does not appearjustified when other, less restrictive and equally effective options are available. Any one of these grounds alone may, inparticular cases, render psychiatric hospitalization inappropriate. In combination, they provide powerful evidence that risingrates of juvenile psychiatric hospitalization reflect an overuse of a restrictive, sometimes dangerous, and often less effectiveservice, and thus constitute a serious social problem.

1. The characteristics of hospitalized adolescents: Are they severely or acutely mentally ill?

Fewer than one-third of those juveniles admitted for inpatient mental health treatment in recent years were diagnosed ashaving severe or acute mental disorders of the type typically associated with such admissions (such as psychotic, seriousdepressive, or organic disorders). [FN95] By contrast, about one-half to two-thirds of adults admitted for *789 inpatientmental health treatment were diagnosed as having such serious disorders. [FN96] Yet, once hospitalized, juvenile psychiatricpatients remain in the hospital approximately twice as long as do adults. [FN97] And, children hospitalized in privatefacilities are both more likely to have longer stays and less likely to be severely disturbed than are children in publicfacilities. [FN98]

About two-thirds of juvenile inpatients receive initial diagnoses of conduct disorder, personality or childhood disorder, ortransitional disorder. [FN99] An examination of the various 'symptoms' that characterize each type of disorder reveals that, ingeneral, these categories describe troublemakers, children with relatively mild psychological problems, and children who donot appear to suffer from anything more serious than normal developmental changes.

For example, in order to assign a conduct disorder diagnosis, a clinician must note a persistent pattern of antisocial conductfor at least six months. [FN100] Depending upon which of the enumerated behavioral problems a child exhibits, a clinicianmight diagnose the child as demonstrating a more 'aggressive' versus 'nonaggressive' conduct disorder, [FN101] or a moresocially oriented (such as gang-directed) or 'solitary' conduct disorder. [FN102] The more aggressive constellations ofbehavior *790 may manifest as physical violence against persons or property, or thefts involving personal confrontation.[FN103] As such, this 'disorder' may mirror the type of behavior that could lead to an adjudication of delinquency in thejuvenile justice system. The nonaggressive manifestations of this behavior problem include chronic violations of rules athome or at school, truancy, running away, persistent lying, or stealing not involving personal confrontation. [FN104] Thus,the conduct required for this category is virtually parallel to conduct that could lead a judge to find that a minor is a statusoffender. These parallels have not escaped researchers, who have studied the similarities among juveniles in psychiatric andcorrectional facilities. [FN105] Several have posited that rising rates of juvenile psychiatric admission result from thetransinstitutionalization [FN106] of children from the juvenile justice to the mental health system. [FN107]

A second class of diagnoses frequently assigned to adolescent inpatients is that of the 'personality disorders.' This categoryincludes the 'oppositional disorder,' the 'identity disorder,' and the 'avoidant disorder.' Children exhibiting the behaviorrequired for a diagnosis of one of these disorders also are unlikely to be seriously mentally ill. For example, the oppositionaldisorder diagnosis requires a six month pattern of behavior such as stubbornness, violations of minor rules,argumentativeness, and temper tantrums. [FN108] Yet developmental researchers *791 often regard such nondangerousexpressions of oppositional behavior as a normal aspect of the transition from childhood to adolescence. [FN109] Similarclaims as to the nonpathological nature of the identity disorder and avoidant disorder can be made. An identity disorder isdefined by a pattern of 'severe subjective distress regarding uncertainty about a variety of issues relating to identity' (such aslong-term goals, career choice, and friendship patterns). [FN110] Many psychologists, however, view an 'identity crisis' as anessential step on the path to healthy psychological development. [FN111] Finally, although the excessive shyness thatcharacterizes an avoidant disorder [FN112] can interfere with social functioning, it also may represent one end of acontinuum of normal behavior. Research suggests that in a large percentage of cases, the presence of such behavior inchildhood is transitory. [FN113]

The symptoms associated with 'adjustment disorders' also do not suggest the presence of a serious mental disorder.Adjustment disorders, also called 'transitional disorders' or 'situational disorders,' are characterized by an 'overreaction' ofsome sort to identifiable social stressors (such as parental fighting), leading to impairment in social or occupationalfunctioning. [FN114] Incorporated into the formal definition of these disorders, however, is a recognition that 'thedisturbance will eventually remit after the stressor ceases or, if the stressor persists, when a new level of adaptation isachieved.' [FN115] This acknowledgment directly contradicts the notion that the disorders in this category represent seriousmental illnesses. Nonetheless, in 1975 they accounted for more than 30 percent of all juvenile admissions to public and



private psychiatric hospitals, and to psychiatric units of private general hospitals. [FN116]

*792 Still other children in psychiatric facilities may not be suffering from any psychological problems, transitional ornormative. [FN117]

In sum, the behaviors that characterize about half of the patients in juvenile psychiatric units do not reflect severe or acutemental illness. Despite the very real psychological pain that children assigned one of the diagnoses described in this sectionmay experience, most do not require the intensive intervention of a mental hospital. Although some proportion of juveniles insuch hospitals are psychotic or seriously emotionally disturbed, many more appear to be troublemakers, children reacting todisturbed or inadequate family situations, or adolescents experiencing nonpathological turmoil, rebellion, or identity crisis. Ifan emotionally disturbed adolescent is imminently dangerous to herself or to others, many argue that it is appropriate torestrain that individual in a mental institution until such time as she can be rendered nondangerous. [FN118] But mostchildren undergoing inpatient mental health treatment are not dangerous. And, some proportion of children who do present adanger to themselves or others may be successfully and safely treated outside of an institutional context. Home-based crisisintervention sometimes can substitute for the physical and chemical restraint of an institution, [FN119] thus rendering mentalhospitalization a less appropriate alternative in many instances.

2. The relative efficacy of hospital versus community-based treatment.

Studies that have examined the comparative efficacy of psychiatric hospitalization and alternative treatments consistentlyreveal that community- based alternatives are more effective than is institutional treatment. [FN120] While the majority ofthese studies focus on adult *793 populations, those few that examine comparative treatment efficacy with respect to childrenreach similar conclusions. [FN121]

Some recent studies have examined the efficacy of certain innovative community-based treatments for the particular types ofproblems for which many children are admitted to mental hospitals. [FN122] One such program is Homebuilders, [FN123]which has been instituted in several states. Its primary goal is to keep the child in the family home by providing support andcounseling to all family members and by linking parents with appropriate community resources. [FN124] Most contactsbetween the family and counselors occur within the home (rather than in a clinic), and counselors are constantly 'on-call' tothe family. Homebuilders not only responds to crises, but also trains family members in those skills necessary for livingtogether as a stable unit. Data reveal that in certain Homebuilders projects, the family unit was maintained (that is, the childwas not institutionalized or placed outside of the home) in 97 percent of the cases during the first three months followingintervention, [FN125] and in 82 percent of the cases during the first year following intervention. [FN126] In each of thesecases, families reported satisfaction with the crisis resolution in a follow-up assessment.

The Homebuilders' evaluations, however, are characterized by certain methodological limitations. For example, the studiesdo not directly compare the outcomes of children participating in the program with those of similar children treated ininstitutions. [FN127] Addressing these limitations, in part, is a study by researchers in Minnesota that *794 compared thepost- intervention placement patterns of children who participated with their families in a comprehensive home-basedprogram with those of children who did not participate in the program. [FN128] The researchers found that although theprogram participants, like comparison group members, often required out-ofhome placements during the follow-up period,the participants required significantly fewer days (about half as many) in such placements than did the comparison groupparticipants. [FN129]

Homebuilders, the Minnesota program, and a state-wide North Carolina program offering an array of home-based andclinic-based psychological, educational, and social support services [FN130] all focus on the delivery of services to the typesof children that currently populate juvenile units in mental hospitals. [FN131] Among other things, the programs all have incommon the goal of equipping families with the skills necessary to cope with their children's problems. Below, I attribute theincreasing demand by families for institutional services, in part, to a growing breakdown in families' abilities to handle theirinternal crises without the aid of external resources such as the mental health and juvenile justice systems. [FN132] Programsthat support and train families to handle their children's adjustment difficulties seem to have a greater likelihood of long-termsuccess than do programs that deal only with the children, and do so in isolation from the family. The author reporting theNorth Carolina study results states: ' R esidental services are overutilized for children and families that, in the long run, woulddo better not to be separated.' [FN133] Intensive home- and community-based services avoid problems 'such as reintegratingthe child into the family' and dealing with the reality that while the child is in residential treatment, 'sufficient change is notmade in the home environment' to maintain any gains made by the child after the child returns home. [FN134] In general, the



findings of these studies suggest that intensive home- and community-based services for emotionally disturbed andtroublesome adolescents are extremely promising alternatives to institutional and residential placements. Furthermore, thestudies reveal that these noninstitutional services can be provided at lower costs than can institutional *795 services. [FN135]

There also exists a range of other nontraditional interventions, elements of which were incorporated into the intensiveprograms described above. Certain outpatient family treatment approaches, for example, have succeeded in ameliorating arange of serious emotional and behavioral problems. [FN136] In addition, several 'behavioral' approaches that focus on thedevelopment of interpersonal and adaptive life skills and can be applied in an outpatient context have reported substantialsuccess. Skills taught range from training parents how to handle their aggressive children [FN137] to providing seriouslyemotionally disturbed individuals with basic social competencies. [FN138] 'Day treatment' programs, which providecomprehensive full-day care, have the advantages of an intensive residential program, but allow participants to return hometo their families at night. They have proven especially helpful to those adolescents with the kinds of special emotional andbehavioral problems that place them 'at risk for residential placement.' [FN139]

Despite the promise of these alternatives, in some instances, a child simply cannot remain at home. The parents may haveabandoned the child, may pose a danger to the child, or may be too seriously disturbed to create an adequate homeenvironment. Whereas most children from such homes live in foster placements, troublesome children from inadequate ordangerous homes are typically difficult to place in foster homes. They may be too hard for foster parents to handle, or mayrun away from nonsecure placements. Therefore, in some situations, a residential community placement, such as a 'grouphome,' provides the most appropriate alternative. Ideally, group home and similar programs, such as small residential centers,serve as substitute family living situations while providing the special educational and mental health care many of thesechildren need. [FN140] At the very least, these less restrictive *796 and less costly programs provide substantial benefits tomany adolescents who otherwise would spend most of their youth in institutions. [FN141]

In summary, it is clear that mental hospitalization generally is not more effective than are community-based methods foradult psychiatric patients. And, the limited number of studies that have compared inpatient and outpatient services forchildren reached similar conclusions. Finally, initial empirical results suggest that recent innovations in home- andcommunity-based programs for families with difficult children may be more effective than is institutional care.

3. The risks of psychiatric hospitalization.

Writers and researchers have identified substantial negative effects of the institutionalization experience. Charles Kiesler, aresearcher in the field of mental health policy, noted that institutional placements may foster dependency by reducingpatients' abilities to function competently outside of an institutional setting. [FN142] He also stated that: ' T he stigmatizationby others as being mentally ill, and the self-labeling as mentally ill . . . could interfere with the new learning and sence ofconfidence necessary to produce positive therapeutic change.' [FN143]

Feelings of powerlessness and helplessness also may result from mental hospitalization. [FN144] Research reveals that,beyond engendering discomfort, feelings of powerlessness and helplessness may foster clinical depression, [FN145] in partbecause an important component of positive psychological adjustment is a sense of control over one's life. [FN146] Datareveal that higher levels of anxiety and other problems that interfere with coping also may result from feelings ofpowerlessness and helplessness. [FN147] Thus, psychiatric hospitalization, while helpful to some individuals, is not withoutattendant risks. Patients may realize *797 improvements in one set of symptoms or problems at the cost of developing others,such as difficulties in coping with relationships and responsibilities from which one has been separated duringhospitalization.

Mental hospitalization also is more restrictive of individual liberty than are most treatment alternatives. [FN148] To theextent that a society values an individual's freedom to live in the community, it should maintain a presumption in favor ofnoninstitutional treatment alternatives. Most adult civil commitment statutes articulate this preference as a legal requirement.Some statutes governing the mental hospitalization of minors likewise mandate that the judge consider and deeminappropriate less restrictive alternatives before ordering or continuing the incarceration of an individual against his will.[FN149]

A recent review of psychological research concluded that certain degrees of freedom of movement, association, andcommunication are critical to the psychological well-being of children and adolescents. [FN150] Mental hospitalization mayentail substantial periods of isolation, particularly in the case of recalcitrant children and adolescents, [FN151] and may be



characterized by involuntary administration of heavy doses of psychotropic medication (that is, medication used to alterpsychological functioning), invasions of privacy, and social pressure to conform behavior to certain norms. [FN152] Onefacility not only punished children for commission of actual misdeeds, but also required the children to take polygraph testsand then punished them for having thought about engaging in misdeeds. [FN153]

Certain aspects of mental hospitalization can be extremely frightening for some children. Children who are not seriouslyemotionally disturbed may be greatly upset by exposure to children who are. [FN154] In addition to the possible assault onone's psychological well-being, an involuntary hospitalization may be harmful to one's physical health, as in the case of 15-year-old Marissa, who required high doses of fluids and vitamin B, as well as medication, to counteract the effects of theantipsychotic drugs given to her in the hospital. [FN155]

*798 4. Conclusion.

Mental hospitalization does not appear to be the most appropriate, or even an appropriate treatment option for a largeproportion of minors receiving such treatment. First, most juveniles currently in mental hospitals are not seriously mentallyill, and do not require the restraint provided by an inpatient setting. Second, research studies reveal that inpatient treatment istypically less effective than are focused community-based interventions. Third, the potential risks of mental hospitalizationare substantially greater than those present in community-based treatment and may outweigh any benefits of inpatienttreatment. [FN156]

For all of these reasons, the recent dramatic increases in adolescent admission rates are a cause for great concern. In thesections below, I will examine those factors that converged to create and encourage this overuse of inpatient services and willsuggest a legal policy framework to address this serious social problem.

III. THE INCREASED DEMAND FOR INSTITUTIONAL SERVICES FOR CHILDREN

Troublesome youth comprise a large proportion of those juveniles hospitalized in mental health facilities. I will argue belowthat rising rates of child and adolescent mental hospitalization are due, in part, to *799 the increasing difficulties that familiesare experiencing in copying with such youth. Changes in the American family structure, particularly increases in the rates ofdivorce and in the prevalence of single-parent households, have made it more likely that youth will experience adjustmentdifficulties and that their parents will be unable to cope effectively with those difficulties or other behavioral problems withinthe family unit. In the absence of intrafamilial resources adequate to handle troublesome youth, families and communityagencies, such as schools and police departments, seek assistance from sources external to the family, most frequently themental health or juvenile justice systems. Although the community-based interventions described above [FN157] mightadequately meet family and community needs, unavailability and lack of insurance coverage [FN158] reduce the likelihoodthat families will have access to such programs. Thus, institutional solutions for problematic juvenile behavior are typicallysought.

Whereas in prior years, the juvenile justice system institutionalized troublemaking youth as status offenders, recent legalreforms have closed the doors of juvenile justice institutions to a sizable population of difficult children. Families andcommunity agencies seeking intensive intervention have turned increasingly to mental hospitals: the only institutionalalternative that is available, provides easy access, [FN159] and is adequately funded by third-party payment. [FN160]

A. Changes in American Family Structure

Although the divorce rate has stopped rising after many years of dramatic increases, the rate remains high, [FN161] andAmerican society is likely to experience the repercussions of family division for some time. Researchers have estimated that,in California, 70 percent of divorces involve families with children under the age of twelve. [FN162] Despite the advantagesthat the present system of no-fault divorce holds for many marital partners and their children, the prevalence of divorce inrecent years also has had a negative impact.

Empirical studies examining children of divorce reveal that they run a higher risk of developing adjustment problems than dochildren of intact families. [FN163] Some researchers have concluded that the parental *800 conflict that precedes,accompanies, and follows divorce is the most significant risk factor. [FN164] Other factors, such as 'separation from anddiminished contact with one or both parents . . ., diminished parenting effectiveness . . ., decreased economic support . . ., andother life transitions such as changes in residence' also play a role. [FN165]



Mothers become primary custodians in 90 percent of divorces and separations that involve children. [FN166] In a substantialmajority of cases, children have little or no contact with their fathers after divorce. [FN167] This not only deprives thechildren of a relationship with one parent, but also places additional stress on the custodial mother, who may be unable toturn to her former spouse for even minimal assistance in child-rearing.

In addition, divorce has devastating economic consequences for most divorced women and their children. For example,households with children headed by divorced women are four times as likely to fall below the poverty line than are similarhouseholds headed by a married couple. [FN168] Research in California revealed that divorce raises the standard of living offathers by 42 percent while lowering the standard of living of mothers and children by 73 percent. [FN169]

These economic differences follow from the problems in our current systems of child and spousal support, and from thebarriers that *801 face newly divorced women whose married lives were devoted to their families and to assisting theirhusbands', rather than promoting their own, careers. Child support awards are frequently too small to enable custodial parentsto provide adequately for their children. [FN170] This problem is further compounded by the fact that more than 53 percentof custodial parents do not receive full court-ordered child support payments. [FN171] With minimal or no child supportfrom fathers, custodial mothers often must support their children on their own, a responsibility that is made more difficult bya range of obstacles.

For example, married women traditionally have subordinated their own vocational and educational training to that of theirhusbands, and most single mothers find it difficult to enter the labor market for the first time when in their thirties or forties.[FN172] With few marketable skills and little out-of-home work experience, divorced mothers often must accept low-payingjobs that offer minimal opportunity for advancement. [FN173] The need to earn a steady income in order to support childrentypically precludes these women from taking sufficient time away from work to obtain the kind of training that would allowthem to secure employment positions with superior remuneration. This reality, combined with the already impaired earningpotential that women face in the labor market, makes it particularly difficult for divorced mothers to extricate themselvesfrom their financial woes. [FN174] Because trends in recent years also have been away from court-ordered spousal support,divorced mothers cannot rely on such assistance as a way to sustain their families while improving their employmentpotential. [FN175] And, only about 43 percent of divorced spouses receive the full spousal support payments that have beenpromised to them. [FN176] Even rehabilitative alimony awards, designed specifically to provide temporary financialassistance to women needing time and funding for vocational training, [FN177] rarely are sufficient to enable single mothersto achieve substantial retraining. [FN178]

These factors often compel recently divorced mothers to move to less expensive neighborhoods. [FN179] Such movesusually require children *802 to change schools, and require both mothers and children to sever close ties with those whohave formed the family's social support network, such as friends, neighbors, and teachers. [FN180] Finally, in precariouslybalancing their typically full-time employment responsibilities with those associated with managing a household on theirown, single mothers often find themselves with substantially less time to meet their children's emotional needs than they hadwhen the marriage was intact. [FN181] Mothers' decreased availability removes yet another source of support from childrenwho are likely already to have lost some or all contact with their fathers and to have moved from their home communities.

Research findings reveal that a startlingly high percentage of children in residential treatment are from families in which thebiological parents no longer are living together. [FN182] Whether the behavior of these children represents normaladolescent turmoil, a more serious behavioral problem, or an adjustment difficulty in response to the divorce and itsaftermath, the reality is: Divorced single mothers often have less time, energy, and financial resources than do intacttwo-parent couples to cope with challenging child or adolescent behavior.

The fact that more American families require external assistance to manage difficult children does not explain why thesechildren are increasingly admitted to psychiatric hospitals. As noted above, most are not seriously mentally ill, and thereexists a range of other social and psychological interventions more likely to address the needs of the affected families. Thenext sections will address further the question of why these children are ending up in inpatient psychiatric facilities.

B. Legal Reforms in the Juvenile Justice System

Although the three primary systems of child care and control theoretically focus on different segments of the juvenilepopulation, in reality, these systems are quite interconnected. They deal with relatively interchangeable populations thatmove from one system to another in response to legal reforms, funding patterns, and changing social attitudes. Federal and



state attempts to move status offenders from juvenile justice institutions to the community, for example, appear to havestimulated recent increases in adolescent admissions to psychiatric units. I will review these reforms and their effects onpatterns of institutionalization *803 below, but first will discuss trends in institutionalization among the three primary childcare and control systems.

1. Patterns of use in the modern child welfare and juvenile justice systems.

At the beginning of the twentieth century, child welfare facilities housed the largest group of children institutionalized in theUnited States. [FN183] This pattern soon changed. In 1935, Congress authorized federal Aid to Families with DependentChildren ('AFDC'), which conditioned receipt of federal child welfare funds on the use of home care. [FN184] This fact,together with the emerging 'belief that 'normal children' do not require the expensive care and supervision associated withtraditional institutional programs,' led to the deinstitutionalization of children housed in welfare facilities. [FN185]

This shift in the treatment of 'normal' dependent children meant that institutionalization through the child welfare systemincreasingly was reserved for those children difficult to place: older children, emotionally disturbed children, truants, anddelinquents. [FN186] Rates of admission within the child welfare system were cut in half between the 1920s and 1970s.[FN187]

In contrast, the juvenile correctional system experienced steady increases in the numbers of residents in its short-termdetention and long-term facilities until the 1970s. [FN188] The rates of admission for all types of juvenile correctionalfacilities (that is, short- and long-term, public and private) increased nine-fold from 1923 to 1974. [FN189] The growing pushfor deinstitutionalization of youth in juvenile justice facilities prompted Congress to pass the Juvenile Justice andDelinquency Prevention Act ('JJDPA') in 1974. [FN190] Supporters of the JJDPA had hoped that the Act would conditionstate receipt of federal juvenile justice funds upon removal of all but the most serious offenders from juvenile correctionalfacilities. The legislation Congress eventually passed, however, mandated only the deinstitutionalization of nonoffenders(that is, dependent and neglected youth) and status offenders. [FN191]

*804 The effect of the the JJDPA on the dispositions of status offenders was dramatic. From 1974 to 1979, the arrest rate ofstatus offenders decreased by about 16 percent; from 1975 to 1979, the rate of status offense cases processed by juvenilecourts dropped more than 21 percent; and, most dramatically, from 1975 to 1979, the rate at which juvenile courts referredoffenders to detention facilities decreased by 68 percent. [FN192] Thus, not only has the number of status offendersprocessed by the juvenile justice system decreased, but those identified as status offenders are less likely to be sent tojuvenile justice institutions. These data suggest that states successfully implemented Congress' mandate to deinstitutionalizestatus offenders. However, a more cautious interpretation of these results is in order in light of the recent increases in rates ofadmission to psychiatric facilities and the discussion below.

2. Rates of institutionalization across child care and control systems.

The total rate of institutionalization of children across the three major child care and control systems more than doubled inthe fifty years between the 1920s and 1970s. [FN193] In addition, dramatic changes have occurred in the relative utilizationof the three child care and control systems. [FN194] The 'intersystem' trends suggest that the 50-year reduction *805 in use ofinstitutions for dependent or neglected children has been offset completely by the increased use of juvenile correctional andmental health facilities, particularly in the private sector. [FN195] The available data for the late 1970s reveal reductions injuvenile court processing and incarceration of status offenders [FN196] that may have been offset by recreases in admissionsto mental hospitals. [FN197] If this in fact occurred, many youth are not being deinstitutionalized, as policymakers intended,but are being 'transinstitutionalized.' [FN198] The term 'transinstitutionalization' refers to the transfer of a population fromone institutional system to another as an inadvertent consequence of policies intended to deinstitutionalize the targetpopulation. More specifically, the term refers either to the actual movement of specific individuals from one institutionalsystem to another, or to the assignment of newly institutionalized individuals to the 'receiving' institutional system instead ofthe 'deinstitutionalized' system to which they otherwise would have been assigned.

There is no way to be certain that shifting rates of institutionalization among the child care and control systems are, in fact,some form of transinstitutionalization. Yet, several factors support such a conclusion. First, studies conducted with referenceto populations other than youth strongly support the argument that the transinstitutionalization phenomenon may be anartifact of deinstitutionalization programs more generally. [FN199] Second, as described above, [FN200] institutions for the*806 care and control of children historically have handled a somewhat interchangeable population. Recent intersystem shifts



thus may represent simply a new manifestation of a familiar phenomenon. Third, the diagnoses given to a substantialproportion of children now in psychiatric facilities indicate that a label of status offender or juvenile delinquent could be justas easily applied to them as to those actually assigned such labels in the juvenile justice system. [FN201] Fourth, the 'casehistories' of many minors admitted to psychiatric facilities reveal either that they personally have been transferred from oneinstitutional system to another, or that they could have been processed in the juvenile justice or *807 child welfare system,given the behaviors and situations leading to their hospitalization. [FN202] Finally, some juvenile court and social welfarepractitioners specifically have acknowledged trying to 'get around' mandates not to institutionalize status offenders by havingminors before them diagnosed as mentally ill so that they may be hospitalized in psychiatric facilities. [FN203]

3. Conclusion.

Changes in the American family structure have significantly hampered the abilities of families to cope internally with theadjustment problems of their children and adolescents. Thus, families are relying increasingly upon external services to helpthem deal with unmanageable juvenile behavior. Concurrently, federal and state attempts to deinstitutionalize children injuvenile justice facilities have severely curtailed one heavily used external resource.

The increased limitations on the abilities of families to handle their troublesome youngsters, coupled with the decreasedavailability of a popular institutional 'solution,' created an acute demand for an alternative institutional service. As notedabove, the child welfare system *808 completed a relatively successful deinstitutionalization effort decades ago;consequently, it does not provide an immediately viable avenue. By contrast, the mental health system does. And, because ofthe convergence of a number of independent factors, discussed in the next section, mental hospitals clearly are the mostaccessible and convenient response to society's demand that troublesome youth be controlled.

IV. LEGAL, ECONOMIC, AND SOCIAL FACTORS CONTRIBUTING TO THE RISING RATES OFJUVENILE MENTAL HOSPITALIZATION

The search for an institutional means to handle troublesome youth is a search for some social mechanism to control theseyouth. And, as argued above with special reference to the three primary juvenile care and control systems, mechanisms ofsocial control are interdependent in this country. That is, when access to one social control system is blocked, persons whomight have been handled within that system are managed through remaining social control mechanisms. [FN204] If a newlegal label is required to allow access to the available system of social control, society may assign a new designation to thetroublesome behavior, as when adolescents who might have been called status offenders in prior years are diagnosed ashaving conduct disorders. [FN205] The different labels merely represent 'alternative rationales for containment and control'of the same persons. [FN206] Shifts from system to system, and the use of whatever labels are appropriate to the availablesystem, permit the retention of social control in the face of legal reforms designed to counteract that control. In short,whatever social control mechanism 'works' or is most convenient at a given point in time and in a given legal, economic, andsociocultural context may be the designation of choice.

A. Laissez-faire Legal Policies Governing Admission of Minors to Mental Hospitals

As the doors to juvenile justice institutions began to close to minors who did not commit criminal acts, and the doors to childwelfare facilities remained barely ajar, the doors to psychiatric hospitals were swung wide open by the United StatesSupreme Court. In 1979, in Parham v. *809 J.R., a divided Court declined to require states to take meaningful steps toprevent inappropriate use of juvenile psychiatric facilities. [FN207] The Court essentially endorsed unbridled discretion forparents (or state guardians) and admitting staffs in decisions concerning juvenile admissions to such facilities.

The result reached in Parham is inconsistent with trends the Court had established in the 1960s and 1970s toward greaterrecognition of minors' and psychiatric patients' rights. [FN208] It also stands in stark contrast to the Court's decision inBellotti v. Baird, [FN209] a case concerning minors' rights to obtain abortions without parental consent, decided just twoweeks after Parham.

When the legal interests of parents, their children, and the state collide, the courts have attempted to define and balance theseinterests. [FN210] Whereas such an analysis usually begins with the recognition that parents are entitled to exerciseconsiderable discretion in the upbringing of their children, [FN211] parental autonomy is not absolute. The existence of childabuse and neglect statutes in all states demonstrates that parental autonomy must yield when its exercise is viewed asdangerous to the health or well-being of children. [FN212] Furthermore, Supreme Court decisions empowering 'mature



minors' with rights of reproductive choice represent a limitation on parental discretion. [FN213] Even in Parham, *810 theCourt acknowledged that minors, like adults, have a 'substantial liberty interest in not being confined unnecessarily formedical treatment' and that the state's involvement in the commitment process constitutes state action under the due processclause of the fourteenth amendment. [FN214] Nonetheless, the Court was unwilling to extend to children *811 any facsimileof the procedural protections accorded adults.

In Parham, the Court relied on the traditional presumption that the 'natural bonds of affection' between parents and childrenlead parents to act in their children's best interests. [FN215] The Court assumed that the circumstances in Parham and thosethat characterize most instances in which hospitalization is sought for children could be analyzed within the framework ofthis presumption. [FN216] It held, therefore, that, absent a finding of abuse or neglect, parents should have 'a substantial, ifnot the dominant, role in the decision' of whether their child should be admitted to a mental hospital. [FN217]

Justice Brennan challenged this presumption in his dissent, citing studies indicating that decisions of parents toinstitutionalize their children often are the product of family turmoil unrelated to the children's problems. [FN218] Evidenceof family problems in the case histories of institutionalized children is overwhelming and calls into question the majority'sheavy reliance on the presumption of optimal family functioning in the absence of child abuse or neglect. [FN219] One neednot posit scenarios of dangerous or wholly inadequate parenting to give rise to real concerns about parental discretion forpsychiatric hospitalization of minors. Indeed, family chaos and psychological stress experienced by family members,phenomena that may precipitate or follow a child's troublesome or disturbed behavior, also can blur the judgment of even themost loving and diligent parent or guardian. [FN220] When a confused parent reaches out for help, he may gratefullyacquiesce to whatever treatment option seems most readily available. Because of *812 the vulnerable position in which hefinds himself, the parent may be unduly swayed by advertising or by the availability of insurance coverage, and may not beaware of, or have immediate access to, other more appropriate and less restrictive options. [FN221]

In seeking to insure that 'unnecessary procedural obstacles [do not] discourage the mentally ill or their families from seekingneeded psychiatric assistance,' the Court in Parham made a second key assumption. [FN222] It assumed that adversarialhearings were likely to be 'onerous,' 'embarassing,' and 'contentious' and would be more harmful than helpful to prospectivepatients, their families, and to family harmony. [FN223] Yet, an adequately staffed state advocacy office, working inpartnership with the court, can effect substantially different results than those envisioned by the Parham majority. Forexample, one study revealed that advocates often help to identify and obtain specialized treatment alternatives for children forwhom hospitalization is sought, and that parents are generally appreciative, not resentful, of advocate involvement. [FN224]

Another, and perhaps the most disturbing, assumption the Court made in Parham is that hospital staff are able to serve as'neutral factfinders.' The Court relied on this assumption in concluding that staff findings provide an adequate due processcheck on the discretion of parents or state custodians seeking to hospitalize a child. [FN225] ' S atisfied that the admittingstaff's evaluation will protect the child from an erroneous admission decision,' [FN226] the Court placed great faith both inthe accuracy of psychiatric and psychological decisionmaking and in the impartiality of hospital staff. [FN227] Assumingthat the staff have no vested interest in higher admission rates, substantial questions remain about the adequacy ofpresent-day methods for determining when a child or adolescent requires inpatient psychiatric treatment. [FN228] Given*813 the paucity of useful scientific guidance and the confused state of mental health practice regarding this subject, theCourt's sole reliance on the expertise of mental health practitioners clearly seems misplaced.

Moreover, the emergence and gradual domination of for-profit psychiatric hospital services for children and adolescentsundermines the Court's crucial assumption that admitting staff are impartial decisionmakers. The fact that these facilities'profits increase when beds are filled raises serious doubts about the ability of their staffs to function as 'neutral factfinders.'Thus, even if the Court were correct in its assessment of how state facility staff function in this protective role, the world haschanged since Parham was decided. Psychiatric hospitalization of juveniles no longer occurs primarily in state-run andnon-profit settings. The admission of juveniles for inpatient mental health treatment is now 'big business.' Private hospitaladmissions account for the large majority of juvenile psychiatric admissions, and the numbers continue to rise. [FN229] Thisshift in the locus of care seriously erodes the validity of the Parham Court's critical assumption that hospital staff will makedisinterested admission decisions.

In sum, the Supreme Court has adopted an implicit laissez-faire approach to the psychiatric hospitalization of children. It hasrejected state intervention in parenting and the business of providing mental health services. In so doing, it has left thewelfare of prospective patients in the hands of parties who may be burdened with conflicts of interest. The states, although attimes providing somewhat more protection, vary in their policies. [FN230] Rarely do state laws protect children as



vigorously as they do adults.

In the absence of meaningful scrutiny of juvenile mental hospital admissions, there are few obstacles to using mentalhospitals to deal with society's demand that something be done with or for troublesome youths. Most ironic about thisscenario is that the individuals whose judgment the Supreme Court substituted for impartial judicial over-sight-the hospitaladmitting staff--increasingly have become those with the most to gain from rising admission rates. The section belowdescribes those economic incentives that appear to encourage the use of inpatient mental health services.

*814 B. Economic Incentives: The Availability of Payment and the Rise of For-Profit Hospital Corporations

1. The availability of payment: insurance policies favoring inpatient mental health services.

The Supreme Court's decision in Parham has perpetuated a situation in which many juvenile admissions are only minimallyscrutinized. But the permissive legal context is only part of the reason why juvenile mental hospital admissions haveincreased so dramatically. Perhaps the most powerful factor encouraging the overuse of mental health hospital services is thatprivate and government funding of mental health services strongly favors inpatient over outpatient treatment. [FN231]

At the beginning of this decade, 70 percent of all mental health dollars were spent on inpatient care, despite extensive federalexpenditures on community programs and a formal federal policy of deinstitutionalization. [FN232] Kiesler and Sibulkinclaim that despite a de jure federal mental health policy favoring deinstitutionalization, [FN233] the de facto policy is one ofinstitutionalization because public insurance programs, such as Medicaid, and private insurance programs, such as BlueCross/Blue Shield, essentially have become 'the national de facto mental health policy.' [FN234]

Considering the dilemmas of families with problem children, one can understand why even those families who prefer to keeptheir children at home may choose inpatient mental health services, despite the existence of community-based alternativesthat may be more effective and less expensive: Inpatient treatment may be the only option adequately covered by theirinsurance. Thus, a more effective option is not really an option if the absence of any reimbursement or the presence of highdeductibles and copayment requirements makes access impossible. Although community-based services may be lessexpensive than inpatient services to provide, they are not less expensive to the consumer if the consumer can obtain 100percent coverage for inpatient services and significantly less coverage for community-based services.

Commentators familiar with the data indicating that community-based alternatives are more effective [FN235] andinexpensive [FN236] than hospitalization *815 have raised the obvious question of why inpatient treatment is still favored byinsurers. [FN237] Insurers may resist change because they fear that the increased availability of community services will leadto 'net-widening' effects. [FN238] That is, they may be concerned that, if easily accessible, community mental health serviceswill attract a new and broader clientele of policyholders to mental health services in addition to those who would takeadvantage of inpatient benefits. Such netwidening effects have the potential to increase the insurer's overall cost of providingthe 'cheaper' community-based services. Initial analyses do not provide support for the claim that availability of adequatecoverage for community-based mental health services must, in the long-run, be financially detrimental to insurers. [FN239]And, net-widening appears particularly unlikely to occur with respect to home-based community services. Such programsrequire a serious commitment from all family members; the family must permit a stranger to enter the home and manipulaterelationships. Families are unlikely to make this commitment unless motivated by a serious internal crisis.

Further complicating the reimbursement picture is the fact that consumer- oriented mental health advocacy groups have oftenlobbied for greater parity in insurance coverage between mental and physical health services. Partially as a result of suchlobbying, some state legislatures have enacted policies requiring private insurance companies to provide certain minimuminpatient and outpatient mental health benefits. [FN240] In Metropolitan Life Insurance v. Massachusetts, the Supreme Courtheld that federal statutes did not preempt such a law adopted in Massachusetts, thus reinforcing the states' authority toregulate the private insurance industry. [FN241] The Massachusetts statute, however, mandates minimum mental healthbenefit levels in proportions that continue to favor inpatient treatment. [FN242] Thus, the ostensibly 'forward-thinking' *816policies of jurisdictions that seek to discourage insurance-carrier discrimination against persons suffering from mental healthproblems may, in fact, be perpetuating a pattern of financial incentives that is detrimental to the well-being of the populationthey seek to assist.

2. The rise of for-profit hospital corporations: a trend that encourages inpatient adolescent admissions.



Arnold Relman, a physician and author, has suggested that a 'medical- industrial complex' arose during the 1970s. [FN243]He warned that the private sector's increased and unprecedented control of the health care industry had brought with it many'troubling implications.' [FN244] The proprietary hospital movement is increasingly dominated by large enterprises owningseveral institutions. [FN245] Businesspeople, such as the man responsible for the success of the Kentucky Fried Chickenchain, rather than physicians or hospital administrators, often direct these enterprises. [FN246] The business of for-profithealth care has proven financially profitable for investors, [FN247] and all indications suggest that corporate domination ofhealth care resources will continue to expand. [FN248]

The psychiatric hospital is a special target of health care corporations. Its profit margins are large, investment costs are low,[FN249] inpatient psychiatric care is now widely insured, and the complexity (and perhaps ambiguity) of psychiatricdiagnosis and treatment makes cost control efforts by insurers and the government difficult. [FN250] In 1968, for-profithospital chains were nonexistent in psychiatric care. [FN251] In 1980, investor chains owned 25 percent of privatepsychiatric hospitals and, just two years later, these corporations owned a full 43 percent *817 market share. [FN252]Between 1982 and 1983, the number of investor- owned psychiatric hospitals rose 42.5 percent, from 106 to 151. [FN253]The increase was partly attributable to investor groups' acquisition of existing facilities, but new construction of psychiatrichospitals, which grew 53.3 percent, accounted for most of the growth. [FN254] 'Ad-Psych' (Adolescent Psychiatry) units areso lucrative that corporations have closed units providing other types of services in order to establish the more profitableadolescent units. [FN255] Admission data reflect the current domination of the private sector in the provision of adolescentinpatient psychiatric services. In 1980, for example, private facilities admitted 61 percent of all adolescents who underwentpsychiatric hospitalization; since that time, juvenile admissions to these facilities have increased substantially. [FN256]

Perhaps the most problematic aspect of the increasing for-profit control of juvenile psychiatric facilities is the potentialconflict of interests experienced by referring professionals who have financial interests in the facilities to which they referprospective patients. Although the extent of physicians' direct proprietary interests in many major health-care corporations isnow known, there clearly are financial ties between community physicians and many of these corporations. [FN257] Onehospital corporation published a brochure indicating that it views each physician as a 'business partner,' an assertionsupported by its policy of recruiting young physicians and subsidizing their start in private practice. [FN258] This situationled Relman to call on the American Medical Association (AMA) to revise its code of ethics to mandate that physiciansshould derive no financial benefit from the health-care market except what they earn from their own professional services.[FN259]

A second problem that may affect physician impartiality is the implicit or explicit pressure a for-profit facility may placeupon its staff to contribute to the institution's profit-making goal. In a 1980 interview, the president of one of the largestcorporate hospital chains in the United States, stated that if physicians with admitting privileges at his facilities do notproduce business, '[t]hey can practice elsewhere.' [FN260] Although no evidence is available as to the prevalence of thisattitude, *818 the danger remains that staff physicians have incentives to increase profit-making and reduce unprofitablebusiness. [FN261] Such policies do not necessarily coincide with patient needs. For example, one mental health advocatecommented that minors admitted to private psychiatric hospitals often experience a remarkable and full recovery from theirdisorder just at the time when their health insurance benefits run out. [FN262] The implication, of course, is that mentalhealth professionals diagnose children's functioning in a manner dictated more by the financial interests of their employersthan by the objective manifestations of patients' conditions.

For-profit facilities typically make great use of certain 'discretionary' services, [FN263] a pattern that has led to speculationthat physicians are ordering additional services for the financial well-being of their employers, rather than for the physical orpsychological well-being of their patients. [FN264] These charges permits the for-profit hospitals, although lesscost-effective, to have higher profit margins than do nonprofit facilities. [FN265] Because these services are typically paidfor by insurers, hospitals *819 that order these services are virtually guaranteed payment, and patients are unlikely to knowthe difference.

The profit motive may be affecting juvenile admission rates in other ways as well. Private hospitals have enlisted a range ofstrategies, including professional marketing techniques, to help keep admission rates high. [FN266] But advertisementsaimed at parents who are having difficulty managing their children may induce a new and potentially inappropriatepopulation to use inpatient mental health services. For example, in Virginia, a television advertisement for a privatepsychiatric hospital encouraged parents to admit their children to the facility for engaging in premarital sex, using marijuana,or failing to perform adequately in school. Another advertisement told parents: 'You are at the end of your rope. You havedone everything you can think of, and nothing has worked. What your child needs is help-- professional help. And the best



place to get help is at . . ..' [FN267] A psychologist in Louisiana wrote a column in a professional newsletter after he and histwo sons became upset with the messages conveyed in a series of local television ads. [FN268] He stated:It all started one evening while watching T.V. with my 11 and 12 year old sons. A commercial came on showing a sad,tearfilled father talking about how he never listened to his son, how he never paid enough attention to him, and now that itwas too late. . . . The man pauses, swallows hard, and then states that his son committed suicide. A violin starts to play in thebackground framing the pathetic sighs of the father crying over his son's suicide. At this point the sales pitch comes on for alocal private for profit psychiatric hospital urging viewers to come in *820 for help if they are having difficulty with theirchildren. [FN269]

Unfortunately, advertisements such as these may lead well-meaning parents to believe that failure to react to normaladolescent adjustment problems with an intensive remedy such as hospitalization is poor parenting. [FN270]

Some facilities have sought to boost admissions by using slick marketing techniques aimed at teachers and other communityprofessionals. For example, some hospitals provide free mental health training programs to school teachers. [FN271] Suchtraining allows the hospitals to develop relationships with teachers and to plant seeds that may culminate in a teacher'srecommendation that a child needs mental hospitalization.

C. Social Processes Facilitating the Overuse of Juvenile Mental Hospitalization

The interchangeability of the social and legal labels defining 'bad' behavior (actions suitable for control in the criminal orjuvenile justice systems) and 'sick' behavior (actions suitable for control in the mental health system) has been the subject ofmuch scholarship. [FN272] Researchers have coined the phrase, 'the medicalization of deviance,' to describe society'sredesignation of certain behaviors (previously considered to be 'bad' or 'sinful') as 'sick.' [FN273] Joseph Gusfield, a notedsociologist, has emphasized that so-called 'deviance designations' often shift from one form to another over time: 'What isattacked as criminal today may be seen as sick next year . . ..' [FN274] At *821 times, specific criminal acts have also beenviewed as blameworthy or not, depending upon our conception of the offender as an ordinary wrongdoer or as the victim of amental illness or traumatic life experience. [FN275] Shifts in deviance designations may represent 'alternative rationales forcontainment and control' of the same persons, and the labels may change to accommodate the inaccessibility of a formersocial control mechanism and the availability of an alternative. [FN276]

The availability of reimbursement for services also relates to the types of labels placed upon behavior. Legal policies thatshift the eligibility of certain services for reimbursement provide 'increasing incentive to redefine youths in trouble accordingto diagnostic categories that will legitimate placement in facilities deemed appropriate for reimbursement.' [FN277]Professionals may 'identify the psychological 'label' that is receiving the most current funding, and 'relabel" childrenaccordingly. [FN278]

Shifts in deviance designations also may have 'symbolic' implications for society. [FN279] Our society's emphasis onhumanitarian values, such as benevolent care for those in distress, together with the 'optimism of science,' may support trendstoward medicalization. When medical terminology characterizes the nature of and interventions imposed on deviant behavior,we feel better about our treatment of deviants than we would if we thought we were 'punishing' them or that they were'hopeless.' [FN280] The characterization of a category of 'deviants' as having medical (and, preferably, biologically-based)disorders, rather than as simply being 'bad,' may be especially appealing to parents of the 'deviant' persons. The 'illness'designation makes parents the objects of sympathy and compassion, rather than the objects of blame as allegedly inadequateparents. [FN281] Some 'deviant' groups or their advocates may perceive the reclassification as leading to improvedcircumstances for the 'deviants.' They may be seeking the provision of arguably ameliorative, rather than punitive,placements.

The symbolism attributed to labels may not, however, in and of itself, explain shifting deviance categorizations. Changes inthe public *822 definition of deviance may result from 'reversals of political power, twists of public opinion, and thedevelopment of social movements and moral crusades.' [FN282] Indeed, the shifting designation of a group as 'sick' ratherthan 'bad' may require a political struggle among various organized interest groups. [FN283] Success in changing ormaintaining the widespread acceptance of a particular legally endorsed deviance label can enhance the status and power ofparticular groups in society and provide public affirmation of the values those groups characterize or espouse. [FN284] Manycommentators have argued that the medical profession generally, and psychiatry in particular, have served as a group of'moral crusaders' or 'moral entrepreneurs' in the quest to make the medical approach to deviance supreme. [FN285] Suchredesignations provide attractive opportunities and higher status, as well as financial rewards, for medical professionals. For



example, mental health practitioners may be struggling for legal autonomy in the treatment of 'mentally ill' persons (that is,freedom from policies that regulate their treatment of patients); mental health researchers may be hoping for theestablishment of a branch within the National Institute of Mental Health (NIMH) for the disorder upon which their workfocuses, accompanied by federal research funds.

It is unlikely that the medical characterization of troublesome behavior of children and adolescents would lead to increasingjuvenile psychiatric admissions, even in the presence of the legal and economic factors described above, if thatcharacterization were inconsistent with current social attitudes. The medical construction need not be the only culturallyacceptable formulation, but it must be at least minimally congruent with predominant values. For example, no matter howlegally accessible, convenient, and monetarily well-subsidized policymakers made it to control troublesome juveniles withpublic torture, this remedy simply would not be accepted in our current sociocultural milieu: It is alien to what the prevailingpopulace believes, or what it thinks it *823 should believe. [FN286] In the United States in the 1980s, we prefer to think ofourselves as providing solicitous care and treatment to troublesome children and other dependent persons who may manifestproblems.

Medicalization of certain behavioral forms, such as troublesome juvenile conduct, is aided by the fact that formal psychiatricdiagnostic categories are sufficiently manipulable to facilitate redesignation. These categories also command the socialrespect necessary to make the shift believable and acceptable to the public. Thus, extremely malleable categories ofpsychiatric diagnosis serve to facilitate sociological processes of shifting deviance designations.

Stedman's Medical Dictionary defines 'diagnosis' as '[t]he determination of the nature of a disease.' [FN287] Medicalconcepts of diagnosis and other aspects of the 'medical model' [FN288] have been imported into the *824 field of behavioraland interpersonal problems. Psychiatric concepts of medical diagnosis, 'codified' in the revised third edition of Diagnosticand Statistical Manual of Mental Disorders of the American Psychiatric Association ('DSM-III-R'), [FN289] currentlyconstitute the prevalent model by which professionals label persons who receive mental health services. This classificationsystem is widely used in mental health facilities, and diagnoses must be made according to it, or according to the closelyrelated International Classification of Diseases, [FN290] in order to qualify for most forms of insurance.

This application to the mental health field of concepts typically used in the study, assessment, and treatment of physicaldisorders has been harshly criticized on several grounds. Some critics have claimed that use of the disease model in general,and of psychiatric diagnostic categories in particular, is theoretically and scientifically unsupported. [FN291] *825 Othershave argued that the medical model leads to modes of social and professional treatment of persons with behavioral andinterpersonal problems that are counterproductive to the well-being of those persons and to the general public, [FN292]particularly in the predisposition of those using traditional diagnostic categories and techniques to find pathology. [FN293]Many researchers claim that much of what is identified as 'mental disorder' or 'mental illness' can, in fact, be characterized asnormal, transitory phenomena. For example, longitudinal studies of children exhibiting behavior problems have indicatedthat, without treatment, two-thirds of those problems improve spontaneously within two years. This suggests that, for some,temporary behavior problems may be a normal part of growing up. [FN294] Many researchers in the field *826 ofadolescence regard nondangerous expressions of oppositional behavior as a normal and healthy aspect of the transition fromchildhood to adulthood, whereas DSM-III-R has formally codified such behavior as indicating mental disorder. [FN295] Insum, traditional psychiatric diagnoses are quite malleable. Their reach may be extended to label as 'sick' many forms ofbehavior that, albeit troublesome, are relatively normative and not in need of intensive intervention.

D. Conclusion

A combination of factors, including laissez-faire judicial policies, insurance coverage favoring inpatient treatment, the rise ofcorporate medicine, a mental health establishment willing to assume control over troublesome youth, and the symbolic appealof a medical perspective on deviance appear to have converged to promote the inappropriate use of inpatient mental healthservices for the management of difficult children and adolescents. Below, I will propose a series of legal reforms designed toreduce this misuse of resources and to promote the availability of appropriate and effective services for troublesome youthand their families.

V. PROPOSALS FOR REFORM

Policymakers are faced with the challenge of reducing the overuse of inpatient psychiatric treatment for juveniles whosebehavior, while troublesome, does not reflect illness. Providing minors with due process protections may make access to



mental health institutions more difficult, and thereby reduce admissions, but due process is likely to be insufficient toguarantee the success of a deinstitutionalization program. Not only must admissions be scrutinized so that only minors forwhom hospitalization is appropriate are admitted, but policymakers concurrently must address the underlying problems thatfuel the demand *827 for institutional services. They must provide, fund, and encourage use of services for troublesomechildren and their families that reinforce, rather than erode, the family system. Ideally, public policies should view children asintegral members of their families and communities. Intervention programs should seek to work within these relationships,rather than isolating the child from them.

Below, I propose a four-part reform package. Each element of the package is necessary if we are to reduce inappropriatejuvenile admissions to mental hospitals without also stimulating unintended and deleterious consequences such as thetransinstitutionalization that resulted from the implementation of the JJDPA. The reform package consists of: (1) fundamentalreform in private and governmental insurance reimbursement policies; (2) development of a network of accessible andeffective community-based alternatives to institutional mental health services; (3) state-mandated review of theappropriateness of juvenile mental hospital admissions; and (4) heightened state monitoring of the growth and activities offor-profit mental hospitals.

A. Shifting Financial Incentives: The Need for Fundamental Reform in Private and Government Funding for andReimbursement of Mental Health Services

The role of financial incentives in encouraging or maintaining certain patterns of institutionalization anddeinstitutionalization must not be underestimated. As noted above, federal mandates to deinstitutionalize child welfare[FN296] and juvenile justice [FN297] facilities were successful when Congress conditioned federal funding upon suchsuccess.

Although an 'antiinstitutional ideology' preceded deinstitutionalization, the 'timing and acceleration of depopulation trends'among institutional systems is best explained by funding trends: 'New economic incentives provided support for anideological position that had emerged at an earlier date.' [FN298]

As noted above, Kiesler and Sibulkin suggest that 'insurance programs, quite unintentionally, so dominate the national scenethat they in effect have become the national de facto mental health policy.' [FN299] Without fundamental reform in patternsof reimbursement for inpatient versus outpatient and traditional versus nontraditional forms of intervention, it is unlikely thatany reductions in the inappropriate use of mental hospitals will occur. The data on cost-effectiveness of community-basedtreatments [FN300] seems sufficiently persuasive to encourage insurance providers to experiment with changes in coverage.Yet, *828 whether because of concerns about potential net-widening effects or because of other factors, neither the privateinsurance industry nor the federal government has initiated such reforms.

Currently, most private insurance policies provide extensive coverage for inpatient mental health services, [FN301] whileproviding limited coverage for outpatient services. [FN302] These policies frequently do not reimburse subscribers for familytherapy, [FN303] and rarely cover innovative or nontraditional services. [FN304] These patterns of coverage deny familiesaccess to the community-based services that are most likely to help them cope with their troublesome children at home andavoid the need for institutional services. Because increases in juvenile mental hospital admissions occur primarily in theprivate sector, [FN305] changes in private insurance coverage are likely to have the greatest impact on admission rates.

State statutes mandating private insurance reimbursement, such as the legislation upheld by the Supreme Court inMetropolitan Life Insurance, [FN306] can help influence the development and use of effective community- based alternativesby requiring private insurance coverage for innovative services such as home-based and family oriented interventions.Statutory maximums limiting reimbursement for hospital services would also reduce the use of such services. However,given that some individuals with severe or acute mental disorders may benefit from mental hospital services, in some casesfor extended periods, across-the-board state-mandated maximum levels of coverage may be ill-advised.

It is likely, however, that if state laws require private insurance providers to compensate subscribers adequately forcommunity-based mental health services, insurers will seek to cut costs in other areas. Ideally, insurers will more carefullyscrutinize the appropriateness of mental hospital admissions and will develop criteria that limit reimbursement for inpatientservices to those cases in which such services are, in fact, necessary. Whereas determinations of what is an appropriate or anecessary admission are always fraught with subjectivity, the AACAP standards, for example, were developed, in part, toinform reimbursement decisions and ppolicies, and appear to be well- suited for this purpose. [FN307]



*829 Changes in coverage provided by Medicaid (which funds health services for low income children and families)[FN308] of the same type proposed for private insurance would make community-based and nontraditional mental healthservices increasingly accessible to those who rely on public, rather than private, insurance.

B. Creating a Network of Accessible, Effective, Community-Based Mental Health Services

Most states fail to provide intensive noninstitutional mental health services for children and families. [FN309] Thus, in mostjurisdictions, mental hospitals are the only option available within the mental health system for most troublemaking youth.[FN310] Families with no insurance, or with coverage that inadequately reimburses community-based services, must rely onstate provision of services, and most cannot find adequate alternatives to institutionalization within the state network.

One way to establish an affordable network of community-based and innovative services is through direct federal and statefunding of such services. Currently, federal funding for state-provided mental health services is disbursed through blockgrants that permit the states to exercise discretion in allocating the funds to particular types of services. [FN311] In enactingthe Omnibus Budget Reconciliation Act of 1981, which authorized the block grant disbursements, Congress repealed theMental Health Systems Act ('MHSA'). [FN312] Congress had passed the *830 MHSA specifically to discourageinappropriate use of institutional mental health services while encouraging the provision and use of more appropriatecommunity-based mental health services. [FN313] These thrusts followed directly from the recommendations of thePresident's Commission on Mental Health, [FN314] and were consistent with goals of the Community Mental Health CentersAct of 1963, [FN315] the first of several Acts providing targeted federal support for community mental health services. TheMHSA authorized federal grants to states to fund a range of community-based mental health programs serving 'underserved'or poorly served populations such as children and adolescents. [FN316] The legislation also authorized grants to fund'innovative' mental health care projects. [FN317] Unfortunately, the MHSA was repealed only nine months after itsenactment, in the first round of Reagan Administration budget cuts, [FN318] and before any funds had been distributed.

The continued existence and adequate funding of the MHSA might have encouraged states to provide adequatecommunity-based alternatives to institutional mental health treatment. Some states have been able to develop innovativeprograms in the absence of targeted federal funds. [FN319] With federal funding, other states might have achieved similarresults, and might have learned that alternatives to institutionalization are frequently cost- effective in the long-run. TheMHSA offers a model for future congressional initiatives.

Even in the absence of the federal guidance and support for alternative services explicit in the MHSA, states can begin todivert funds away from institutional services, experimenting with community-based services, while evaluating their efficacyand cost-effectiveness. [FN320]

*831 C. Reducing Inappropriate Admissions Through State-Mandated Review: A Model Statutory Framework

An overruling of the Parham decision would greatly facilitate efforts to close the doors of juvenile psychiatric units toinappropriate admissions. Such a reversal may be unlikely, but fortunately it is unnecessary if the states are willing to provideadequate statutory protection. The possible permutations characterizing such statutes are numerous. [FN321] The statutoryframework proposed here attempts to strike a balance between protecting the interests of juveniles and giving adequateweight to parental and state interests.

1. The review process.

The cornerstone of a statutory structure protecting minors against inappropriate admissions must be a mechanism for someform of relatively neutral scrutiny. Adversarial judicial hearings constitute our country's traditional vehicle for protecting theliberty interests of its citizens. Of course, tradition is an insufficient reason, by itself, for perpetuating a policy. [FN322] And,without question, policies mandating various forms of due process risk diverting attention and resources from substantiveconcerns. [FN323] As Professor Mnookin points out in his analysis of several landmark cases concerning the interests ofchildren: ' S ubstantive disputes about policy may be transmuted into due process claims. Rather than resolving a disputeabout what the appropriate policy should be, the result instead involves the specification of the structure of the decisionprocess.' [FN324] There is also the risk that whatever mechanisms are established simply with become a 'rubber stamp' forwhatever policies are deemed by the decisionmakers or citizens to be socially desirable. [FN325] Keeping in mind thelimitations and risks inherent in a due process solution, I recommend a particular type of adversarial hearing as themechanism most likely to balance equitably in interests of children, parents, and the state. [FN326]



*832 A juvenile court judge or magistrate might serve as decisionmaker. [FN327] The requirement that the decisionmakerwork regularly with the juvenile court increases the likelihood that she will be familiar with the unique legal issues andpsychosocial factors characterizing problems experienced by families and children. However, a statutory structureempowering as decisionmaker a multidisciplinary review board composed of professionals (psychologists, psychiatrists,social workers, attorneys, ethicists) and lay- persons (lay advocates, clergy,) representatives of concerned consumer groups)selected, in part, because they do not have the conflicts of interest that admitting staff may have, might have some advantagesover judicial review. In particular, the combined membership of such a review board probably will have greater knowledgeabout the relevant psychosocial issues and treatment alternatives. In addition, the availability of a range of perspectives maydecrease the likelihood that discriplinary or other biases will affect the outcome of a decision, or that the procedure will benothing more than a 'rubber stamp.'

How similar the review process should be to the adversarial proceedings required by most civil commitment statutes foradults is unclear. Given the liberty interests at stake, children should have the opportunity for representation by counsel or layadvocates, notice of the hearing, and the opportunity to confront witnesses. Because the goal of this scrutiny is to avoidinappropriate hospitalizations, the hearing should take place prior to, rather than after, the admission. Although apost-admission hearing may remedy an inappropriate admission, the child's liberty already will have been violated, andnegative psychological and physical effects already may have occurred.

*833 2. The substantive inquiry: the appropriateness of hospitalization.

Broad-based substantive criteria such as those articulated in Parham, permitting mental hospitalization upon therecommendation of admitting mental health professionals that a child has a mental disorder and is in need of treatment,[FN328] provide insufficient protections against inappropriate hospitalization. That is, existence of a DSM-III-R mentaldisorder is not, in and of itself, an indication of a need for hospitalization, [FN329] and hospitalization is often not the mostappropriate treatment option. [FN330] The court or review panel must conduct a thorough and independent inquiry into theappropriateness of hospitalization in each particular case.

Given its inherent restrictiveness and risks, and the unfavorable data on its efficacy, [FN331] mental hospitalization shouldbe an option of last resort, and therefore, a juvenile commitment statute should incorporate a statutory presumption againstinstitutional alternatives. Those seeking to hospitalize a minor should be required to demonstrate, with clear and convincingevidence, [FN332] that less restrictive alternatives are inappropriate, and that hospitalization is likely to provide resources orapproaches that are necessary to treat the problem and are available only in the hospital setting, or are essential, in the presentor immediate future, to protect the physical safety of the individual or others. [FN333] Demonstration that less restrictivealternatives are not appropriate should include documentation of those alternatives that were tried and were shown to beunsuccessful. [FN334] Only in a situation of imminent danger to the child or others should this requirement be waived, andthen only until the imminent danger subsides.

A state-funded legal advocacy staff, modeled after the New Jersey system, [FN335] is necessary to ensure the effectivenessof the judicial or panel review. Advocates should be assigned to each case, either to represent*834 children directly, or toserve as guardians ad litem or as amici curiae. Furthermore, they would work with the children and families to obtainmeaningful professional evaluations, assess funding resources, and locate appropriate alternative services. Claims by thosefavoring hospitalization that no appropriate community-based services are available may be refuted with evidence suppliedby the advocacy staff--provided, of course, that the state has in fact made available a range of alternatives to institutionaltreatment. [FN336]

3. Triggering mechanisms for hearings.

The key advantage of a mandatory hearing structure (as contrasted with one in which hearings are triggered by petition orobjection to admission by the juvenile or other interested party) is that a court or administrative panel reviews all admisions.One important disadvantage of this structure is that it precludes a mature minor who seeks self-admission from obtaininginpatient treatment without going through the hearing process. Despite the existence of data revealing that minors agedfourteen and older are probably competent to make independent treatment decisions, [FN337] I recommend a mandatoryhearing structure for the reasons stated below. The nature of the inquiry should differ, however, in the case of a mature minorseeking self-admission. Rather than focus on the appropriateness of treatment alternatives in this latter instance, thedecisionmakers would consider whether the minor had been adequately informed about the alternatives and was capable ofmaking a 'voluntary' choice regarding admission. [FN338]



Research data suggest that social and familial influence may restrict adolescents' abilities to make decisions about treatmentand psychiatric hospitalization voluntarily; pressures from family members, the judge, or others may render invalid anyso-called 'voluntary' adolescent admission. [FN339] Further, it is not clear that minors seeking self-admission are *835sufficiently well-informed about alternative treatments to make a meaningful decision, despite their possession of the abstractcapability to choose among the options. For example, an adolescent may agree to hospitalization because he realizes that heis not behaving constructively and consequently is suffering painful emotional experiences. Or, he may wish to be removedfrom a problematic family unit, particularly if he is being victimized physically, sexually, or psychologically. But, he may beunaware that his problem might be better addressed through a specialized or home-based program.

Thus, a mandatory review is necessary also to protect minors whose decisions to admit themselves are the product ofcoercive influences or who are not adequately informed about more appropriate treatment alternatives. But to ignore thepreferences of an informed mature minor acting voluntarily to admit himself is an affront to the right of decisional autonomy,a right some commentators assert is embedded in the right of privacy. [FN340] Therefore, for minors age fourteen and olderwho seek or agree to self-admission, the judge or review panel should determine whether the minor's decision is sufficiently'voluntary' and informed to constitute a legally valid self- admission. Although the competency of minors over age fourteen ispresumed, the presumption may be rebutted in a particular case. In order to ensure that the minor's interests are adequatelyrepresented, a state advocate should be appointed, and that individual should be required to do the following: obtain andprovide to the child information about alternative interventions, interview the child and his family members to ascertainwhether any factors may be coercing the child in his decision and to determine whether a competency assessment isnecessary, and provide evidence to the court or review panel on these matters when necessary. If a minor's self-admission isjudged not to be voluntary or competent, a review similar to that automatically provided for younger and/or unwilling minorsunder this system should be triggered.

D. Monitoring For-Profit Facilities: Controlling Their Growth and Scrutinizing Their Activities

For-profit hospitals increasingly dominate the juvenile psychiatric hospital market, a trend that may gradually encouragegreater numbers of health care providers and facilities to place economic concerns above *836 patient needs. [FN341]Advertising may alter public attitudes about child, adolescent, and family problems in ways that are not in the best interestsof juveniles and their families. [FN342] The trend toward corporate medicine also may have a deleterious effect on thequality of care provided, particularly in a specialty such as juvenile mental health where individualized treatment planstailored to unique patient needs are important to efficacy. [FN343] Furthermore, these facilities tend to be more expensive forpatients because of their higher direct care charges, and more expensive to run than their nonprofit counterparts. [FN344]

Some states have attempted to discourage for-profit psychiatric facilities from setting up business within their borders. Inparticular, certificate-of- need statutes [FN345] and rate-setting commissions [FN346] have *837 checked the growth offor-profit facilities in areas where such measures have been enacted. [FN347] States in which the growth of private sectorfacilities has been particularly rapid should consider similar legislation.

States must directly regulate private inpatient mental health services for children and adolescents. Currently, state licensingmechanisms are used to ensure that facilities provide a minimal level of quality of care. [FN348] States should incorporateinto these statutes and/or attendant regulations provisions specifically designed to address areas of potential abuse in mentalhealth facilities such as the use of confinement and the overuse of medication. A network of state-employed advocates, alsomandated by statute, could monitor compliance by all state and private mental health facilities. [FN349]

VI. CONCLUSION

The de facto policy of institutionalization in this country has been difficult to change. Even when it is clear that the goals ofinstitutional systems have not been achieved, the convenience of incarceration as a method of social control has workedagainst a change in policies. [FN350]

Deinstitutionalization policies must combat not only our bad habit of turning first to the more convenient custodial care, butalso must overcome the enticing but fallacious notion that most difficulties in social functioning are symptoms of physicaldiseases. The latter inclination leads us to the belief that if we defer to medical expertise, problems will magically be solved.[FN351] Labeling of turbulent adolescent behavior as disease permits society to transfer responsibility for the welfare of itschildren to the mental health establishment, a group that is increasingly controlled by corporate executives and treatingprofessionals with conflicts of interests.



*838 But the growth of a 'therapeutic state' presents even greater dangers than a societal divestment of responsibility for itstroubled members. In addition, our government invests the medical and mental health establishments with substantialdiscretion and power, as the Supreme Court did in Parham. This power is particularly dangerous because it is disguised.Policies consistent with the reasoning in Parham create the illusion that because goals are therapeutic, and because decisionsare made by 'professionals,' we need not scrutinize carefully the power conferred under these policies. Observations by thelate Justice Brandeis poignantly characterize the risks we encounter when placing unbridled discretion in the hands of thosewho allegedly have our best interests in mind:Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Menborn to freedom are naturally alert to repel investion of their liberty by evil-minded rulers. The greatest dangers to liberty lurkin insidious encroachment by men of zeal, well-meaning but without understanding. [FN352]

In light of the analysis presented in this note, I suggest that the relevant inquiry is not, as stated by the Parham Court, whetherparents and mental health professionals are well-meaning, but whether the interests of children are best served by currentlegal policies. All available evidence indicates that children are poorly served by present policies. In the long run, thesepolicies also work to the disadvantage of the families and communities of troublesome children because the policies do notaddress the underlying problems that create the need for services. Only by diverting financial resources to more appropriateinterventions, making these alternatives readily available to desperate families and communities, adopting effective legalscrutiny of admissions, and monitoring for-profit facilities can this disturbing abuse of mental health resources be reversed.

[FNa] Law student, Stanford Law School; Ph.D. (Psychology), University of Pittsburgh, 1980. Formerly Assistant Professorin Psychology, University of Virginia (1983-1985); Assistant Professor of the General Faculties of Law and Psychology,University of Virginia (1981-1983).

Author's dedication: This note is dedicated to the memory of my mother, Professor Corinne J. Weithorn, whose penetratinginsights and loving guidance and support stimulated my pursuit of the empirical research that ultimately led to the writing ofthis note.

Acknowledgments: I would like to think my colleagues Valerie Hans, John Monahan, and Elizabeth Scott, my professorsRobert Mnookin and Michael Wald, and my fellow Stanford Law Review editors Gia Cincone, Daniel Collins, and StephenOdell for their reviews of this note and helpful suggestions throughout its preparation. I would also like to think Paul Lomio,reference librarian at Stanford Law School, for his extraordinary assistance, and Barry Krisberg and Ira Schwartz for theirconsultation and sharing of unpublished materials.

[FN1]. The term 'rates of admission,' as used in this note, refers to rates of admission per 100,000 persons in the specifiedpopulation. Therefore, these figures take into account changes in population size over time.

[FN2]. 'Deinstitutionalization' refers to a federal, state, or local policy of discharging to the community persons housed infacilities such as mental hospitals. C. KIESLER & A. SIBULKIN, MENTAL HOSPITALIZATION: MYTHS AND FACTSABOUT A NATIONAL CRISIS 19 (1987) ('Expected outcomes of a successful deinstitutionalization policy include fewerpeople hospitalized and each for a shorter period of time.').

[FN3]. See note 68 infra and accompanying text.

[FN4]. The term 'psychiatric' admissions will be used interchangeably with the term 'mental hospital' admissions.Furthermore, unless otherwise specified, both terms refer to admissions for inpatient mental health treatment, whether thoseadmissions are to psychiatric units of general hospitals or to free- standing psychiatric hospitals.

[FN5]. See notes 64-70 infra and accompanying text.

[FN6]. The scholarly literature contains no uniformly applied definition of the term 'institutions.' In this note, 'institutions'refers to self-contained public or private residential facilities that are usually set off from the community, such as mentalhospitals, juvenile detention homes, jails, and prisons. P. LERMAN, DEINSTITUTIONALIZATION AND THE WELFARESTATE 19-29 (1982).

[FN7]. L. FRIEDMAN, A HISTORY OF AMERICAN LAW 212-17 (2d ed. 1985); D. ROTHMAN, THE DISCOVERY OFTHE ASYLUM; SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC 31 (1971).



[FN8]. D. ROTHMAN, supra note 7, at 31, 36.

[FN9]. Id. at 43-45.

[FN10]. Id. at 48-51.

[FN11]. Id. at 79-154, 180-236.

[FN12]. Id. at 207-09.

[FN13]. Id. at 207.

[FN14]. Id. at 210.

[FN15]. Id. at 76-77, 209.

[FN16]. Id. The reach of juvenile court jurisdiction to disobedient and other 'wayward' children resembles modern-dayjurisdiction over status offenders. See texts accompanying notes 22 & 34-35 infra.

[FN17]. D. ROTHMAN, supra note 7, at 257.

[FN18]. Id.

[FN19]. D. ROTHMAN, CONSCIENCE AND CONVENIENCE: THE ASYLUM AND ITS ALTERNATIVES INPROGRESSIVE AMERICA 205-35 (1980).

[FN20]. Id. at 215.

[FN21]. See P. LERMAN, supra note 6, at 107.

[FN22]. D. ROTHMAN, supra note 19, at 252.

[FN23]. Id. at 223.

[FN24]. P. LERMAN, supra note 6, at 113-14. For example, in 1923, 50% of the minors in secure detention facilities in thiscountry were labeled 'dependent.' The author of a 1923 census noted: 'The dividing line between dependency anddelinquency is often so vague that in practice both types of children may be found in the care of organizations intendedprimarily for the the care of a single class.' Id. at 114.

[FN25]. Id. at 109-10.

[FN26]. Id. at 110.

[FN27]. See generally S. FOX, THE LAW OF JUVENILE COURTS IN A NUTSHELL (3d ed. 1984); R. MNOOKIN,CHILD, FAMILY AND STATE (1978); W. WADLINGTON, C. WHITEBREAD & S. DAVIS, CASES ANDMATERIALS ON CHILDREN IN THE LEGAL SYSTEM (1983).

[FN28]. See S. FOX, supra note 27, § 15; JUVENILE JUSTICE STANDARDS PROJECT, INSTITUTE OF JUDICIALADMINISTRATION, AMERICAN BAR ASSOCIATION, STANDARDS RELATING TO ABUSE AND NEGLECT § 1.2& commentary, at 38-39 (1977) [hereinafter STANDARDS]; R. MNOOKIN, supra note 27, at 277-97, 306-40, 495-594; W.WADLINGTON, C. WHITEBREAD & S. DAVIS, supra note 27, at 713-965.

[FN29]. See S. FOX, supra note 27, § 15; R. MNOOKIN, supra note 27, at 277- 97, 306-40, 495-594; W. WADLINGTON,C. WHITEBREAD & S. DAVIS, supra note 27, at 713-965.

[FN30]. See S. FOX, supra note 27, § 17; STANDARDS, supra note 28, §§ 8.1-.3 & commentary, at 148-57; W.WADLINGTON, C. WHITEBREAD & S. DAVIS, supra note 27, at 851-93.



[FN31]. See S. FOX, supra note 27, § 15; R. MNOOKIN, supra note 27, at 277- 97, 306-40, 495-594; W. WADLINGTON,C. WHITEBREAD & S. DAVIS, supra note 27, at 713-965.

[FN32]. See J. GOLDSTEIN, A. FREUD & A. SOLNIT, BEFORE THE BEST INTERESTS OF THE CHILD (1979);STANDARDS, supra note 28, § 1.3 & commentary, at 40-41.

[FN33]. See J. GOLDSTEIN, A. FREUD & A. SOLNIT, supra note 32; J. GOLDSTEIN, A. FREUD & A. SOLNIT,BEYOND THE BEST INTERESTS OF THE CHILD (1973); STANDARDS, supra note 28, § 1.3 & commentary, at 42-44.

[FN34]. See S. FOX, supra note 27, §§ 11-12; F. MILLER, R. DAWSON, G. DIX & R. PARNAS, THE JUVENILEJUSTICE PROCESS 59 (3d ed. 1985) [hereinafter JUVENILE JUSTICE PROCESS]: W. WADLINGTON, C.WHITEBREAD & S. DAVIS, supra note 27, at 516-93, 602-48.

[FN35]. W. WADLINGTON C. WHITEBREAD & S. DAVIS, supra note 27, at 602-48.

[FN36]. See generally B. KRISBERG & J. AUSTIN, THE CHILDREN OF ISHMAEL (1978); A. PLATT, THE CHILDSAVERS (2d ed. 1977).

[FN37]. See, e.g., Feld, Criminalizing Juvenile Justice: Rules of Procedure for the Juvenile Court, 69 MINN. L. REV. 141,272-76 (1984); Walkover, The Infancy Defense in the New Juvenile Court, 31 UCLA L. REV. 503 (1984).

[FN38]. Kent v. United States, 383 U.S. 541 (1966) (a juvenile court must provide alleged delinquents with a hearing andassistance of counsel before it can waive its jurisdiction and transfer a juvenile to adult criminal court); In re Gault, 387 U.S.1 (1967) (states must provide notice of charges to juvenile defendants and parents or guardians, must inform them of the rightto counsel, must apply the privilege against self-incrimination, and must give them the opportunity to cross-examinewitnesses in juvenile court hearings); In re Winship, 397 U.S. 358 (1970) (a juvenile court must apply the evidentiarystandard of beyond a reasonable doubt when trying a minor for an offense that would constitute a criminal act); Breed v.Jones, 421 U.S. 519 (1975) (trying a juvenile in both juvenile and criminal court for the same offense violates the doublejeopardy clause).

[FN39]. See E. SCHUR, RADICAL NONINTERVENTION: RETHINKING THE DELINQUENCY PROBLEM 5, 118-20(1973); Seidman, The Adolescent Passage and Entry into the Juvenile Justice System, in CHILDREN, MENTAL HEALTH,AND THE LAW 233, 239-41 (N. Reppucci, L. Weithorn, E. Mulvey & J. Monahan eds. 1984).

[FN40]. See P. LERMAN, supra note 6, at 41-43; OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS,CHILDREN'S MENTAL HEALTH PROBLEMS AND SERVICES 79- 86 (1986).

[FN41]. See A. STONE, MENTAL HEALTH AND LAW: A SYSTEM IN TRANSITION 45 (1975).

[FN42]. Id.

[FN43]. See e.g., O'Connor v. Donaldson, 422 U.S. 563 (1975) (psychiatric confinement of nondangerous mentally illpersons who are capable of surviving outside of an institution is unconstitutional); Addington v. Texas, 441 U.S. 418 (1979)(application of the 'clear and convincing' rather than the 'preponderance' evidentiary standard is required in civil commitmentproceedings).

[FN44]. See Ellis, Volunteering Children: Parental Commitment of Minors to Mental Institutions, 62 CALIF. L. REV. 840(1974).

[FN45]. See id. at 840-41 & n.1.

[FN46]. See generally Rodham, Children Under the Law, 43 HARV. EDUC. REV. 487 (1973); Wadlington, Consent toMedical Care for Minors: The Legal Framework, in CHILDREN'S COMPETENCE TO CONSENT 57 (G. Melton, G.Koocher & M. Saks eds. 1983); Wilkins, Children's Rights: Removing the Parental Consent Barrier to Medical Treatment ofMinors, 1975 ARIZ. ST. L.J. 31.

[FN47]. Ellis, supra note 44, at 840-41.



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[FN48]. See, e.g., Institutionalized Juveniles v. Secretary of Pub. Welfare, 459 F. Supp. 30 (E.D. Pa. 1978), rev'd, 442 U.S.640 (1979); Poe v. Califano, Civ. No. 74-1800 (D.D.C. Sept. 25, 1978); J.L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976),rev'd sub nom. Parham v. J.R., 442 U.S. 584 (1979); Brown v. Allerton, Civ. No. 75-0450-R (E.D. Va. Apr. 19, 1976); In reRoger S., 19 Cal. 3d 921, 569 P.2d 1286, 141 Cal. Rptr. 298 (1977).

[FN49]. Kent v. United States, 383 U.S. 541 (1966), was the first of several Supreme Court decisions recognizing the rightsof minors, beginning a trend that culminated in the recognition that children have certain rights that are independent of therights of their parents. In Kent, the Court held that a juvenile court had to provide to an alleged delinquent certain due processprotections, including the right to a hearing and assistance of counsel, before it could waive its jurisdiction over the juvenileand transfer him to adult criminal court. Speaking with specific reference to the juvenile justice system, the Court stated:'[T]here may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protectionsaccorded to adults nor the solicitous care and regenerative treatment postulated for children.' Id. at 556.One year later, in In re Gault, 387 U.S. 1 (1967), the Court dramatically expanded the due process protections available tojuveniles charged with the commission of delinquent acts, holding that the Constitution requires that they be provided noticeof charges and granted the right to counsel, the right to confront witnesses, and the right against self-incrimination. In sodoing, the Court emphasized that 'neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.' Id. at 13.The Court has subsequently affirmed this position in a variety of contexts. See, e.g., Carey v. Population Servs. Int'l, 431 U.S.678, 692 & n.14 (1977) (plurality opinion) (expansion of rights to obtain contraceptive services and devices); PlannedParenthood v. Danforth, 428 U.S. 52, 72-75 (1976) (expansion of rights to obtain abortions); Tinker v. Des Moines Indep.Community School Dist., 393 U.S. 503, 511 (1969) (expansion of first amendment rights, asserting that high school andjunior high school students 'are 'persons' under our Constitution').In the early cases, the Court recognized two sets of independent and potentially, conflicting interests, those of the family (asrepresented by the parents) and those of the state. See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska,262 U.S. 390 (1923). Many later cases, such as Gault, continued to view the conflict as dyadic, balancing the interests of thefamily (as represented by the child) against those of the state. Not until the 1970s did the members of the Court begin toseparate the interests of parents and child, recognizing that at times three independent and potentially conflicting sets ofinterests are at stake. See, e.g., Danforth, 428 U.S. at 75 (family harmony may be 'fractured' when a minor seeks an abortionbut a parent refuses consent); Wisconsin v. Yoder, 406 U.S. 205, 243-47 (1972) (Douglas, J., dissenting) (parents' decisionsthat constant exposure to Amish life and culture is more critical to their children's upbringing than is a public high schooleducation may not represent the wishes of the children: 'It is the future of the student, not the future of the parents, that isimperiled by today's decision. . . . The child, therefore, should be given an opportunity to be heard . . ..' Id. at 245-46.).

[FN50]. See note 43 supra.


[FN52]. 442 U.S. 584 (1979).

[FN53]. See notes 54-62 infra and accompanying text; see also J. KNITZER, UNCLAIMED CHILDREN 113-29 (1982).

[FN54]. See, e.g., VA. CODE ANN. § 37.1-67.3 (Supp. 1987), § 16.1- 241(B) (1982) & VIRGINIA DEPARTMENT OFMENTAL HEALTH AND MENTAL RETARDATION, DEPARTMENTAL INSTRUCTION NO. 60 (Jan. 22, 1979) (onfile with the Stanford Law Review).

[FN55]. See, e.g., ARIZ. REV. STAT. ANN. §§ 36-518, 36-519 (Supp. 1986) (permitting admission of a minor uponapplication of a parent, guardian, or custodian, following a determination by the medical director of the admitting facilityboth that the 'child needs an inpatient evaluation or will benefit from care and treatment of a mental disorder or otherpersonality disorder or emotional condition in the agency' and that 'the evaluation or treatment goals can[not] beaccomplished in a less restrictive setting').

[FN56]. Compare, e.g., IDAHO CODE § 66-318 (Supp. 1987) (permitting admission of a minor upon application by a parentor guardian after a finding by the medical director of the accepting facility that the minor is mentally ill and thathospitalization is medically necessary) with VA. CODE ANN. § 37.1-67.3 (Supp. 1987), § 16.1-241(B) (1982) (requiring ajudicial commitment hearing for any person, including a minor, who is unwilling to accept voluntary admission or who isincapable of making a voluntary admission decision).



































































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[FN57]. Compare, e.g., VA. CODE ANN. §§ 37.1-67.1, -67.3 (Supp. 1987), § 16.1-241(B) (1982) (requiring that the judicialcommitment hearing precede admission, and requiring a judicial order for a 48-hour pre-admission emergency detention)with N.C. GEN. STAT. § 122C-223(a) (1986) (requiring a judicial hearing within 10 days after a minor is admitted).

[FN58]. Compare, e.g., N.C. GEN. STAT. § 122C-223(a) (1986) (requiring a post-admission judicial hearing in all cases)with LA. REV. STAT. ANN. §§ 25:54, : 57(F)-(G) (West Supp. 1987) (requiring a post-admission judicial hearing only uponobjection by the minor or the minor's parent or guardian).

[FN59]. Those state statutes that provide for a judicial hearing generally also provide for a right to counsel, although someare silent on this matter. J. KNITZER, supra note 53, at 113-29 (summary of statutory provisions regarding review ofadmissions and access to counsel). Some statutes explicitly grant a range of procedural rights. See, e.g., VA. CODE ANN. §37.1-67.3 (Supp. 1987), § 16.1-241(B) (1982) (providing for: an adversarial hearing with representation by counsel who willbe court-appointed if the prospective patient cannot afford one, notice of the standard upon which commitment may beordered, the right to appeal to circuit court for jury trial, the right to obtain independent evaluation, and the right to presentwitnesses at the hearing); CONN. GEN. STAT. §§ 17-205c(d)-(e), -205d(a) (Supp. 1987) (providing for the following rights:appointment of counsel, appointment of a three-judge court of which a judgment of at least two judges is necessary tocommit a child, the opportunity to be present at hearing, the opportunity to present evidence and cross-examine witnesses,and notice to child and parent).

[FN60]. Compare, e.g., VA. CODE ANN. § 37.1-67.3 (Supp. 1987), § 16.1- 241(B) (1982) (requiring for commitment ajudicial finding that the minor '(i) presents an imminent danger to himself or others as a result of mental illness, or (ii) hasbeen proven to be so seriously mentally ill as to be substantially unable to care for himself, and (iii) that alternatives toinvoluntary confinement and treatment have been investigated and deemed unsuitable and there is no less restrictivealternative to institutional confinement and treatment') with N.M. STAT. ANN. § 43-1-16.1(G) (1978) (requiring forcommitment a judicial finding '(1) that as a result of mental disorder or developmental disability the minor needs and is likelyto benefit from the treatment or habilitation services proposed; and (2) that the proposed commitment is consistent with thetreatment needs of the minor and with the least drastic means principle') and CONN. GEN. STAT. § 17-205d(e) (Supp. 1987)(requiring a judicial finding that 'the child suffers from a mental disorder, is in need of hospitalization for treatment, and suchtreatment is available, and such hospitalization is the least restrictive available alternative') and IOWA CODE ANN. § 229.2(West 1985) (requiring a judicial finding that the admission is 'in the best interests of the minor and is consistent with theminor's rights,' although the latter requirement is not defined).

[FN61]. Compare, e.g., VA. CODE ANN. § 37.1-67.3 (Supp. 1987), § 16.1- 241(B) (1982) & VIRGINIA DEPARTMENTOF MENTAL HEALTH AND MENTAL RETARDATION, DEPARTMENTAL INSTRUCTION NO. 60 (Jan. 22, 1979)(on file with the Stanford Law Review) (permitting minors of any age to request pre-admission review) with ILL. ANN.STAT. ch. 91 1/2 , paras. 3-505, 3-507 (Smith-Hurd Supp. 1986) (permitting minors age 12 or older to requestpost-admission review).

[FN62]. Compare, e.g., N.C. GEN. STAT. §§ 122C-3(14), -221 (1986) (defining 'facility' under the admission statute toinclude private facilities) with OR. REV. STAT. § 426.220(1) (1987) (applying admission statute to state facilities only) andALASKA STAT. § 47.30.690 (1984) (leaving 'designated treatment facility' undefined and therefore rendering ambiguouswhether private facilities are subject to the reach of the statute).


[FN64]. The admission rate per 100,000 for a 12-month period in 1922-1923 was 13, whereas the rate for 1971 was 111. P.LERMAN, supra note 6, at 138. These figures underestimate the rate of increase because the 1920s data reflect the rate ofadmission for youth up to age 20, whereas the 1971 data reflect rates of admission only for youth up to age 18. Id.

[FN65]. Id. at 134.

[FN66]. The rate of psychiatric admission for individuals under age 18 to all inpatient facilities (including state and countymental hospitals, private psychiatric hospitals, and nonfederal general hospitals) rose from approximately 111 per 100,000 in1971, id. at 138; NATIONAL INSTITUTE OF MENTAL HEALTH, USE OF PSYCHIATRIC FACILITIES BYCHILDREN AND YOUTH, UNITED STATES 1975, at 17 (1981) [hereinafter NIMH 1975], to approximately 128 per100,000 in 1980, NATIONAL INSTITUTE OF MENTAL HEALTH, USE OF INPATIENT PSYCHIATRIC SERVICES















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BY CHILDREN AND YOUTH UNDER AGE 18, UNITED STATES, 1980, at 12 (1986) [hereinafter NIMH 1980], anincrease of approximately 15%. Most striking, however, is that while juvenile psychiatric admissions to state and countymental hospitals and general hospitals decreased by approximately 39% between 1971 and 1980 (from 44,153 in 1971,NATIONAL INSTITUTE OF MENTAL HEALTH, UTILIZATION OF MENTAL HEALTH FACILITIES 1971, at 31(1973) [hereinafter NIMH 1971] to 27,032 in 1980, NIMH 1980, supra, at 12), juvenile psychiatric admissions to privatemental hospitals and general hospitals increased by 52% (from 32,754 in 1971, NIMH 1971, supra, at 31, to 49,910 in 1980,NIMH 1980, supra, at 12).

[FN67]. In 1971, of the 87,588 psychiatric admissions of individuals under age 18 in the United States, 32,754, or 37%, wereto private hospitals (6,420 to free-standing private psychiatric hospitals and 26,334 to private general hospitals). NIMH 1971,supra note 66, at 31. In 1980, of the 81,532 psychiatric admissions of individuals under age 18 in the United States, 49,910,or 61% were to private hospitals (16,735 of free-standing private psychiatric hospitals and 33,175 to private generalhospitals). NIMH 1980, supra note 66, at 12. Because of the dramatic increases since 1980 in juvenile admissions to privatepsychiatric hospitals, see note 68 infra, and to private general hospitals, see note 69 infra, it is likely that private facilitiesnow account for a substantially higher percentage of the total number of juvenile admissions than the 1980 data reflect.

[FN68]. Between 1980 and 1984, admissions of adolescents to private psychiatric hospitals rose from 10,764 to 48,375.Emerging Trends in Mental Health Care for Adolescents: Hearings Before the House Select Comm. on Children, Youth, andFamilies, 99th Cong., 1st Sess. 5 (1985) [hereinafter Hearings] (fact sheet introduced by Rep. George Miller, CommitteeChairman, citing data provided by the National Association of Private Psychiatric Hospitals ('NAPPH')). Inasmuch as thesedata reflect raw numbers, not per capita rates of admission, they are not corrected for changes in population size. The UnitedStates Census Bureau reports, however, that between 1980 and 1984, the national population of persons under age 18dropped 1.6%, from 63,682,000 to 62,688,000. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITEDSTATES 1986, at 27 (106th ed.). These census data reveal that changes in population size cannot account for the four andone-half-fold increase in juvenile psychiatric admissions.Also available are data from the state of California reporting admissions of 5- to 14-year-olds to 'all mental hospitals in thestate,' public and private, between 1981 and 1984. See Taub, A Raggedy System of Caring for Kids, CAL. J., Feb. 1987, at68, 68-69. These data reveal a more than seven-fold increase, up from 586 to 4265, during this period.

[FN69]. See Hearings, supra note 68, at 11 (prepared statement of Ira M. Schwartz, Director, Center for the Study of YouthPolicy, Hubert H. Humphrey Institute of Public Affairs, University of Minnesota). Because NAPPH is composed of onlyfree-standing private psychiatric hospitals, its data do not include juvenile psychiatric admissions to private general hospitals.Schwartz' comments suggest that the largest number of juvenile admissions to private psychiatric facilities are to generalhospitals. Id. at 7 (statement of Ira M. Schwartz). The fact that the rate of juvenile psychiatric admission to private generalhospitals in 1980 was approximately twice that for free- standing private psychiatric hospitals (33,175 versus 16,735)supports Schwartz' argument that general hospitals account for the majority of private juvenile psychiatric admissions. NIMH1980, supra note 66, at 12. His research revealed a tripling in rates of juvenile psychiatric admission to Minnesota privategeneral hospitals between 1976 and 1984 (from 91 to 299). Hearings, supra note 68, at 11 (prepared statement of Ira M.Schwartz). Most startling is the fact that a large proportion of the increase occurred in Schwartz' final year of research,between 1983 and 1984, when admissions in his sample group increased from 184 to 299, suggesting that the rate of increasehad dramatically steepened. Id. Data not yet tabulated for the mid-1980s may reveal even more dramatic increases than aredisclosed by current figures.

[FN70]. Lerman, Trends and Issues in the Deinstitutionalization of Youths in Trouble, 26 CRIME & DELINQ. 281, 282-83,292-92 (1980).

[FN71]. See, e.g., Hearings, supra note 68, at 21 (statement of Dr. James Egan, Chairman, Department of Psychiatry,Children's Hospital National Medical Center, Washington, D.C.) (arguing that admissions to adolescent psychiatric units areup because there are more impaired adolescents); id. at 169 (statement of Dr. Ira Lourie, Director, Child and AdolescentService System Program, National Institute of Mental Health) (stating that most of the admissions reflected in the increasesare medically necessary).

[FN72]. A review of data from several states suggests that 'at least 40 percent of the hospital placements of children areinappropriate.' J. KNITZER, supra note 53, at 46. 'Inappropriateness' apparently was judged on the basis of factors such aswhether 'the children could have been served as outpatients' or in day treatment, and whether the severity of the children'sdiagnoses warranted inpatient treatment. Id.












[FN73]. Those data that do exist derive from samplings of a particular population at one point in time, See, e.g., Achenbach& Edelbrock, Behavioral Problems and Competencies Reported by Parents of Normal and Disturbed Children Aged FourThrough Sixteen, 46 MONOGRAPHS OF THE SOCIETY FOR RESEARCH IN CHILD DEVELOPMENT, issue 1 (1981);Links, Community Surveys of the Prevalence of Child Psychiatric Disorders: A Review, 54 CHILD DEV. 531 (1983);Offord, Child Psychiatric Disorders: Prevalence and Perspectives, 8 PSYCHIATRIC CLINICS N. AM. 637 (1985). There isno way to compare reliably across studies conducted by different researchers because of differences in assessment andcategorization methods.

[FN74]. Between 1960 and 1984, the suicide rate increased 140% (from 5.2 to 12.5 per 100,000) in the 15- to 24-year-old agegroup. Berman, The Problem of Adolescent Suicide, Newsletter of the Division of Child, Youth, and Family Services of theAmerican Psychological Association, Spring 1987, at 1, col. 1.

[FN75]. The rate of divorce increased sharply in this country between 1970 and 1980. Kantrowitz, Wingert, Gordon,Michael, Witherspoon, Calonius, Gonzalez & Turque, How to Stay Married, NEWSWEEK, Aug. 24, 1987, at 52, 54 (citingUnited States Center for Health Statistics data). Although the rate subsequently stabilized and appears now to be droppingslightly, id., those children whose behavior and well-being are the focus of this note are those whose families, if touched bydivorce, are likely to have seen parental marriages dissolve in the 1970s and early 1980s. As will be described in greaterdetail below, studies reveal that divorce, the family conflict that often accompanies it, and related social and economicchanges experienced by family members can lead to adjustment difficulties in children and adolescents. See notes 163-182supra and accompanying text.

[FN76]. See, e.g., AMERICAN ACADEMY OF CHILD AND ADOLESCENT PSYCHIATRY, CHILD ANDADOLESCENT PSYCHIATRIC ILLNESS: GUIDELINES FOR TREATMENT RESOURCES, QUALITY ASSURANCE,PEER REVIEW AND REIMBURSEMENT (1987) [hereinafter AACAP GUIDELINES]; JOINT COMMISSION ONACCREDITATION OF HOSPITALS, CONSOLIDATED STANDARDS MANUAL/87 (1986) [hereinafter JCAHSTANDARDS]; NATIONAL ASSOCIATION OF PRIVATE PSYCHIATRIC HOSPITALS, GUIDELINES FORPSYCHIATRIC HOSPITAL PROGRAMS: CHILDREN AND ADOLESCENTS (1984) [hereinafter NAPPHGUIDELINES].

[FN77]. The Division of Child, Youth, and Family Services of the American Psychological Association recently establishedthe Task Force on Residential Treatment in order to examine the need for such criteria. See K. Wells, Draft Report of theDivision 37 Task Force on Residential Treatment (Oct. 12, 1987) (on file with the Stanford Law Review). The AmericanPsychiatric Association relies on the JCAH Standards. Telephone interview with Susan Heffner, Librarian at the AmericanPsychiatric Association (Nov. 14, 1986). The latter standards are designed as general criteria for adequate hospitalfunctioning and do not serve as guides to clinicians on how to distinguish appropriate from inappropriate admissions. JCAHSTANDARDS, supra note 76.

[FN78]. For a discussion of the financial interests of private psychiatric hospitals, see notes 243-265 infra and accompanyingtext.

[FN79]. NAPPH GUIDELINES, supra note 76.

[FN80]. Id. at 3-4.

[FN81]. Id. at 4.

[FN82]. Id. Specifically, the standards define choice of community resources as relating to 'avocational interests in school,church activities, scouting activities, the expression of hobbies and/or special interest in the community, as well as theindividual's choice of peers for nonstructured community activities.' Id.

[FN83]. AACAP GUIDELINES, supra note 76.

[FN84]. Id. at 30, Core Guideline A.1.

[FN85]. The Supreme Court, in O'Connor v. Donaldson, 422 U.S. 563 (1975), enunciated the standard that nondangerousindividuals may not be confined in mental hospitals involuntarily when less restrictive treatment alternatives exist. State










statutes have incorporated the notion that options less invasive of individual liberty than mental hospitalization should betried if appropriate and available, and also have required that judges find individuals to be imminently dangerous tothemselves or others before authorizing certain hospitalizations. See, e.g., CAL. WELF. & INST. CODE §§ 5150, 5250(a),5260, 5300 (West 1984); VA. CODE ANN. § 37.1-67.3 (Supp. 1987); see also note 149 infra and accompanying text.The doctrine of the least restrictive alternative found in mental health law has its roots in basic constitutional doctrine. A stateimposed burden on a 'fundamental' right, such as certain liberty rights, is constitutional only if the burden is necessary tofurther a compelling government interest. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 388-89 (1978); Shapiro v. Thompson,394 U.S. 618, 634, 637 (1969). Thus, if the government's interest can be promoted by a means that imposes a lesser burdenon the right, the more burdensome means is constitutionally impermissible. See Zablocki, 434 U.S. at 388-89; Shapiro, 394U.S. at 637.

[FN86]. AACAP GUIDELINES, supra note 76, at 30, Core Guideline A.2.a.

[FN87]. C. KIESLER & A. SIBULKIN, supra note 2, at 148.The effects of total institutions are often seen as fostering institutional dependence in various ways. Such dependenceprogressively leads to loss of social and vocational competencies, thereby undercutting one's ability to manage one's life anddeal independently with the world outside the institution. The confinement also involves loss of meaningful contact withothers who could provide social and other forms of support.Id.


[FN89]. See notes 135 & 236 infra and accompanying texts.


[FN91]. AACAP GUIDELINES, supra note 76, at 34-35, Specific Guideline I.A.

[FN92]. Id. at 34-35, Specific Guidelines I.A.1., I.A.2. & I.A.8 (emphasis added).

[FN93]. Id. at 41-42, 44, Specific Guidelines III.A. & IV.A.

[FN94]. Beyond its intuitive logic, the notion that a treatment should be expected to ameliorate the identified behavioralproblem underlies the entire field of 'outcome' literature in the mental health and medical fields. See, e.g., OFFICE OFTECHNOLOGY ASSESSMENT, U.S. CONGRESS, THE EFFICACY AND COST EFFECTIVENESS OFPSYCHOTHERAPY (1980); OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, ASSESSING THEEFFICACY AND SAFETY OF MEDICAL TECHNOLOGIES (1978).

[FN95]. A 1975 national study revealed that less severe disorders such as neuroses, personality disorders, childhooddisorders, and transitional situational disorders comprised more than 60% of the diagnoses assigned to the patient populationin mental hospitals; psychotic and organic disorders comprised less than 21%. P. LERMAN, supra note 6, at 135. Although aCalifornia study demonstrated differences in the proportions of patients with particular admitting diagnoses hospitalized inprivate versus public hospitals and in facilities serving populations of different socioeconomic levels, the proportion ofpatients sampled that suffered from severe disorders generally was about 20%. Warren & Guttridge, Adolescent PsychiatricHospitalization and Social Control, in MENTAL HEALTH AND CRIMINAL JUSTICE 119, 123 (L. Teplin ed. 1984). A1980 national survey yielded similar proportions. NIMH 1980, supra note 66, at 15.

[FN96]. According to a 1975 national study, 67.8% of all patients admitted to general hospital psychiatric units and 51.6% ofthose admitted to state and county mental hospitals suffered from psychotic, depressive, or organic disorders. P. LERMAN,supra note 6, at 135.

[FN97]. Schwartz, Jackson-Beeck & Anderson, The 'Hidden' System of Juvenile Control, 30 CRIME & DELINQ. 371,375-76 (1984).

[FN98]. Warren & Guttridge, supra note 95, at 122-23, 131-33. This pattern is attributable, in part, to the greater availabilityof private insurance coverage for admissions of children to private hospitals. Id. at 127-28, 131-33.



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[FN99]. A California study revealed that about 53% of hospitalized juveniles suffered from disorders defined by antisocial orrunaway behavior or general personality problems, while those hospitalized because of depression comprised another 17%.Warren & Guttridge, supra note 95, at 123. One 1966 study found that approximately 71% of the adolescents admitted tostate mental hospitals in Nebraska were hospitalized primarily for socially deviant behaviors such as 'truancy, vandalism,robbery, sexual offenses, and other violations of law and socialmoral codes.' Miller & Kennedy, Adolescent Delinquency andthe Myth of Hospital Treatment, 12 CRIME & DELINQ. 38, 43 (1966). Data that I collected between 1983 and 1986 inVirginia (publication of which is forthcoming) suggest that 36 to 70% of that jurisdiction's juvenile state hospital populationsuffer from no more than 'acting out' problems and a range of less serious difficulties, depending upon facilities and agegroups.

[FN100]. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTALDISORDERS 45-50 (3d ed. 1980) [hereinafter DSM-III]; AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTICAND STATISTICAL MANUAL OF MENTAL DISORDERS 53-55 (3d ed.-Revised 1987) [hereinafter DSM-III-R]. Themanual in use at the time much of the date reported here was collected, DSM-III, supra, was revised in 1987. DSM-III-R,supra. The revisions altered slightly the names and symptoms required for diagnosis of some of the categories described here.I will continue to refer to the old, as well as the new, manual because the former guided many of the diagnoses that are thebasis of the research reported in this section.

[FN101]. DSM-III, supra note 100, at 45-50; DSM-III-R, supra note 100, at 53-55.


[FN103]. DSM-III, supra note 100, at 47-49.

[FN104]. Id. at 48-50. Two examples of patients who were diagnosed as having a nonaggressive conduct disorder are 'Sheila'and 'Lisa.' Sheila was a 12-year-old girl who participated in the research project that I conducted in Virginia. See note 99supra. She was hospitalized in a state psychiatric facility after spending a week in a juvenile detention center on the basis thatshe was a 'Child in Need of Supervision' (that is, a status offender). Her problem behaviors included running away fromhome, temper tantrums, verbal abuse of authority figures, and depressed feelings. She had already been in two different grouphomes and one private psychiatric hospital. Sheila's parents had separated when she was a young child, and her mother wasgranted custody. Just one month before the state hospitalization, her mother gave temporary custody to Sheila's natural fatherbecause she felt that she was unable to control her.Lisa was a 16-year-old who 'seduced' older men, drank vodka, skipped school, ran away from home, and disobeyed herdivorced mother, who eventually had Lisa admitted to a private psychiatric hospital. Ostroff, Growing Up Behind LockedDoors, ROLLING STONE, NOV. 20, 1986, at 71, 71-72.

[FN105]. See, e.g., Lewis, Shanok, Cohen, Kligfeld & Frisone, Race Bias in the Diagnosis and Disposition of ViolentAdolescents, 137 AM. J. PSYCHIATRY 1211 (1980). This study examined adolescents in psychiatric and juvenile justicefacilities and found that they did not differ in the frequency with which they exhibited aggressive behavior or psychiatricsymptomatology. Rather, race distinguished the groups. Black adolescents were more likely to be incarcerated in correctionalfacilities while white adolescents were more likely to be hospitalized in psychiatric facilities. Id. at 1215.

[FN106]. For a definition of 'transinstitutionalization,' see note 198 infra and accompanying text.

[FN107]. Schwartz, Jackson-Beeck & Anderson, supra note 97, at 383; Warren & Guttridge, supra note 95, at 129; see alsoP. LERMAN, supra note 6, at 136; notes 198-203 infra and accompanying text.

[FN108]. DSM-III, supra note 100, at 63-65. The revised manual changed this category somewhat. DSM-III-R, supra note100, at 56-58. The disorder is now called the 'oppositional defiant disorder,' and whereas only two of five rather mild formsof disobedience were necessary for a diagnosis under DSM-III, five of nine forms of disobedience are now necessary for adiagnosis according to DSM-III-R. For an examination of other revisions, compare DSM-III supra note 100, at 63-65 withDSM-III-R supra note 100, at 56-58.

[FN109].Normatively then it is within the framework of an ongoing sustaining parental relationship that we view the adolescent's innerturmoil, transient self-esteem problems, and conflicts with parents. This brings us to a crucial issue . . ., that conflict is a



necessary condition for growth. Within certain limits it is to be expected and ought not to be denied. . . . It is, after all,conflict which allows for continued development.Siegel, Personality Development in Adolescence, in HANDBOOK OF DEVELOPMENTAL PSYCHOLOGY 537, 543 (B.Wolman ed. 1982).

[FN110]. DSM-III, supra note 100, at 65-67, DSM-III-R, supra note 100, at 72-73.

[FN111]. See E. ERIKSON, CHILDHOOD AND SOCIETY 261-63 (1963); Siegel, supra note 109, at 543, 546-47.

[FN112]. DSM-III, supra note 100, at 53-55; DSM-III-R supra note 100, at 61- 62.

[FN113]. Morris, Soroker & Burrus, Followup Studies of Shy Withdrawn Children: Evaluation of Late Adjustment, 24 AM.J. ORTHOPSYCHIATRY 743 (1954).


[FN115]. DSM-III, supra note 100, at 301.

[FN116]. NIMH 1975, supra note 66, at 49. The problems experienced by Marissa, a 15-year-old honor student, cheerleader,and gymnast, may represent an adjustment reaction. Hearings, supra note 68, at 16 (prepared statement of Barbara DeFoe).Marissa had become emotionally upset after attending an anti- abortion rally. Because she had trouble sleeping, her mothercontacted their new pediatrician to find out about options such as counseling or sedatives. The pediatrician's recommendationled to Marissa's psychiatric hospitalization. Her discharge was achieved only after her family engaged a mental healthadvocate to obtain a court order for her release. Subsequent evaluation of Marissa by a psychologist suggested that theadmission was inappropriate.

[FN117]. One girl, although admittedly a 'punk rocker,' did not engage in self-destructive behaviors, such as using drugs oralcohol or staying out overnight. The Child Fixers (British Broadcasting Corporation radio documentary examining risingadolescent admissions to private psychiatric hospitals in the United States, Feb. 1985) (tape on file with the Stanford LawReview). Yet, her father, who was disturbed with her lifestyle, had her admitted against her will to a private psychiatricfacility. Another child, of small stature, 'daydreamed' in school about being a football player. Id Because of the unrealisticnature of these thoughts, he was diagnosed as psychotic, the psychiatric staff regarded his fantasy as a delusion. He wasadmitted to a private psychiatric hospital.

[FN118]. See, e.g., O'Connor v. Donaldson, 422 U.S. 563 (1975); Roth, A Commitment Law for Patients, Doctors, andLawyers, 136 AM. J. PSYCHIATRY 1121, 1124-25 (1979).


[FN120]. See the following summaries and collections of studies: ALTERNATIVES TO MENTAL HOSPITALTREATMENT (L. Stein & M. Test eds. 1978); C. KIESLER & A. SIBULKIN, supra note 2, at 152-80; Braun, Kochansky,Shapiro, Greenberg, Gudeman, Johnson & Shore, Overview: Deinstitutionalization of Psychiatric Patients, a Critical Reviewof Outcome Studies, 138 AM. J. PSYCHIATRY 736 (1981); Kiesler, Mental Hospitals and Alternative Care, 37 AM.PSYCHOLOGIST 349, 352-60 (1982) [hereinafter Mental Hospitals]; Kiesler, Public and Professional Myths About MentalHospitalization, 37 AM. PSYCHOLOGIST 1323, 1326-27 (1982) [hereinafter Myths]. See also Gordon, Special Study onAlternative Mental Health Services, in 2 REPORT TO THE PRESIDENT FROM THE PRESIDENT'S COMMISSION ONMENTAL HEALTH 376 (1978); Platman, Report of the Task Panel on Deinstitutionalization, Rehabilitation, andLong-Term Care, in 2 REPORT TO THE PRESIDENT FROM THE PRESIDENT'S COMMISSION ON MENTALHEALTH 369 (1978).A 'meta-analysis' (that is, a statistical analysis using data derived from different studies) revealed that '[a]cross . . . 10 studies,the effects of alternative care were consistently more positive than those of mental hospitalization. In addition, there wasclear evidence of self-perpetuation of mental hospitalization' (that is, persons admitted to mental hospitals were more likely tobe readmitted than were persons who had never been admitted). Myths, supra at 1326-27.

[FN121]. G. MELTON & W. SPAULDING, NO PLACE TO GO: CIVIL COMMITMENT OF MINORS (forthcoming).










[FN122]. J. KNITZER, supra note 53, at 28-32; Behar, Changing Patterns of State Responsibility: A Case Study of NorthCarolina, 14 J. CLINICAL CHILD PSYCHOLOGY 188 (1985); Hinckley, Homebuilders: The Maine Experience,CHILDREN TODAY, Sept.-Oct. 1984, at 14; Home Treatment for Families, PRAC. DIG., Autumn 1983, at 19; Kinney,Madsen, Fleming & Haapala, Homebuilders: Keeping Families Together, 45 J. CONSULTING & CLINICALPSYCHOLOGY 667 (1977) [hereinafter Homebuilders]; P. AuClaire & I. Schwartz, An Evaluation of the Effectiveness ofHome-based Services as an Alternative to Placement for Adolescents and Their Families (Dec. 1986) (unpublished report onfile with the Stanford Law Review).

[FN123]. See Hinckley, supra note 122; Hombuilders, supra note 122.

[FN124]. Hinckley, supra note 122; Homebuilders, supra note 122.

[FN125]. Homebuilders, supra note 122, at 671.

[FN126]. Hinckley, supra note 122, at 17.

[FN127]. In addition, although the ability of the program to prevent out-ofhome placements is critical, it is not the onlyoutcome variable of relevance. Measures of how the family and child are functioning as a unit and in various spheres (such asschool and the community) also are important indices of the success of the program, and were not included in theHomebuilders' evaluations.Furthermore, it is not clear that Homebuilders families are directly comparable to families seeking out-of-home placementsfor their children, because referral to Homebuilders was based on 'high potential for removal to another living situation' ratherthan the actual seeking of such a placement by the family.

[FN128]. P. AuClaire & I. Schwartz, supra note 122, at 4-5.

[FN129]. Id. at 60.

[FN130]. Behar, supra note 122.

[FN131]. Behar, supra note 122, at 190-91; Homebuilders, supra note 122, at 671; P. AuClaire & I. Schwartz., supra note122, at 91.


[FN133]. Behar, supra note 122, at 194.

[FN134]. Id.

[FN135]. Hinckley, supra note 122, at 17; Homebuilders, supra note 122, at 672; see also note 236 infra.

[FN136]. J. HALEY, LEAVING HOME (1980); S. MINUCHIN, FAMILIES AND FAMILY THERAPY (1974).

[FN137]. G. PATTERSON, FAMILIES: APPLICATIONS OF SOCIAL LEARNING TO FAMILY LIFE (1971).

[FN138]. A. BELLACK, SCHIZOPHRENIA: TREATMENT, MANAGEMENT, AND REHABILITATION (1984);Bellack, Hersen & Turner, Generalization Effects of Social Skills Training in Chronic Schizophrenics: An ExperinentalAnalysis, 14 BEHAVIOUR RES. & THERAPY 391 (1976); Matson, Behavior Modification Procedures for TrainingChronically Institutionalized Schizophrenics, in 9 PROGRESS IN BEHAVIOR MODIFICATION 167 (M. Hersen, R. Eisler& P. Miller eds. 1980).

[FN139]. County of Ventura, California, Executive Summary, First Annual Report, July 1, 1985 through June 30, 1986,Ventura County Children's Mental Health Services Demonstration Project 10-11 (Aug. 1986) (unpublished report)[hereinafter County of Ventura Annual Report] (on file with the Stanford Law Review). For descriptions of model daytreatment programs see J. KNITZER, supra note 53, at 22-26.

[FN140]. For example, 'Frye House' served as a substitute home for six adolescents with severe behavioral problems.



Gordon, Group Homes: Alternative to Institutions, 23 SOC. WORK 300, 300-01 (1978). Two lay counselors, who reportedlydeveloped a 'deep affection for the teenagers who lived there as well as an abiding concern for their welfare,' tried to providean environment for the teenagers that was as close to that of a family as was possible. Id. at 301-02.

[FN141]. Fixsen, Wolf & Phillips, Achievement Place: A Teaching Family Model of Community-Based Group Homes forYouth in Trouble, in BEHAVIOR CHANGE: METHODOLOGY, CONCEPTS, AND PRACTICE 241 (L. Hamerlynck, L.Handy & E. Mash eds. 1973); Gordon, supra note 140, at 301; County of Ventura Annual Report, supra note 139, at 8-9.


[FN143]. Mental Hospitals, supra note 120, at 351.

[FN144]. Rosenhan, On Being Sane in Insane Places, 179 SCIENCE 250, 255- 58 (1973).

[FN145]. See, e.g., E. JACOBSON, DEPRESSION 137-64 (1971); M. SELIGMAN, HELPLESSNESS: ON DEPRESSION,DEVELOPMENT, AND DEATH 75-106 (1975); Seligman, Depression and Learned Helplessness, in THE PSYCHOLOGYOF DEPRESSION: CONTEMPORARY THEORY AND RESEARCH 83 (R. Friedman & M. Katz eds. 1974).

[FN146]. See, e.g., Abramson, Seligman & Teasdale, Learned Helplessness in Humans: Critique and Reformulation, 87 J.ABNORMAL PSYCHOLOGY 49 (1978); Miller, Why Having Control Reduces Stress: If I Can Stop the Roller Coaster, IDon't Want to Get Off, in HUMAN HELPLESSNESS (J. Garber & M. Seligman eds. 1980); Weithorn, Children's Capacitiesfor Treatment Decision-Making, in EMERGING ISSUES IN CHILD PSYCHIATRY AND THE LAW 23, 26-28 (D.Schetky & E. Benedek eds. 1985). See generally HUMAN HELPLESSNESS, supra.

[FN147]. H. LEFCOURT, LOCUS OF CONTROL 79-95 (1976); M. SELIGMAN, supra note 145, at 107-33.

[FN148]. The Supreme Court has limited the state's power to place adults in psychiatric facilities involuntarily, recognizingthat such confinement constitutes a severe restriction of individual liberty. Addington v. Texas, 441 U.S. 418 (1979);O'Connor v. Donaldson, 422 U.S. 563 (1975). See generally Chambers, Alternatives to Civil Commitment of the MentallyIll: Practical Guides and Constitutional Imperatives, 70 MICH. L. REV. 1108, 1145- 68 (1972).

[FN149]. See, e.g., CONN. GEN. STAT. § 17-205d(e) (Supp. 1987) (requiring a finding that 'hospitalization is the leastrestrictive available alternative'); VA. CODE. ANN. § 37.1-67.3 (Supp. 1987), § 16.1- 241(B) (1982) (requiring a findingthat 'there is no less restrictive alternative to institutional confinement and treatment and that the alternatives to involuntaryhospitalization were investigated and were deemed not suitable').

[FN150]. G. MELTON & W. SPAULDING, supra note 121.

[FN151]. Id.

[FN152]. Id.

[FN153]. Id.

[FN154]. See The Child Fixers, supra note 117.

[FN155]. See Hearings, supra note 68, at 17 (prepared statement of Barbara DeFoe). Although the case of Marissa isprobably not typical, it provides an example of the way in which an inappropriate hospitalization can negatively affect anindividual. Marissa reported:I cooperated with [the hospital staff] until they insisted I take oral drugs. . . . I refused. Five or six people came into my roomand held me down and took all my clothes off and put me in a hospital gown. I stiffened up and they carried me screaming toa cold white room and locked me in. I prayed to get out. They came back and pinned me to the floor and gave me aninjection. I let them this time, hoping that they would leave me alone. In a few minutes they came back with another injectionand left.. . ... . . [T]hey were giving me shots. I grew more and more tired. I lost my appetite and could hardly swallow. . . .






































One night, I could barely move . . ..I had wet my pants. I couldn't stop drooling and my nose was clogged with dried blood. I couldn't focus my eyes . . ... . . I was so sleepy I could barely walk.Id. at 20 (prepared statement of Marissa DeFoe). Marissa's mother reported that upon discharge, Marissa was unable to walkand had to be removed from the hospital in a wheelchair. See id. at 16 (prepared statement of Barbara DeFoe). 'Her lips andtongue were swollen and she could hardly talk or swallow.' Id. One year after her hospitalization, Marissa reported that shecontinued to have nightmares and was unable to 'forget the pain.' See id. at 20 (prepared statement of Marissa DeFoe). For adescription of the circumstances leading to Marissa' hospitalization, see note 116 supra.

[FN156]. Community-based alternatives are not without drawbacks, however. For example, research reports reveal thatrunaway and homeless youth often are emotionally disturbed. See Robertson, Mental Disorder Among Homeless Persons inthe United States: An Overview of Recent Empirical Research, 14 ADMIN. MENTAL HEALTH 14, 23 (1986).Community-based services, because they allow more freedom of movement than do hospitals, are less likely to preventcertain behaviors, such as running away from home, that eventually may expose children to serious threats to their health andsafety. Many feel that this risk is worth taking when balanced against the disadvantages of hospitalization, but it remains arisk.

[FN157]. See notes 122-135 supra and accompanying text.



[FN160]. See notes 231 & 234-235 infra and accompanying texts.


[FN162]. COMMITTEE ON THE FAMILY, GROUP FOR ADVANCEMENT OF PSYCHIATRY, DIVORCE, CHILDCUSTODY, AND THE FAMILY 7 (1980) (citing Ware, Joint Custody: One Way to End the War, NEW WEST, Apr. 1979,at 42).

[FN163]. See J. WALLERSTEIN & J. KELLY, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPEWITH DIVORCE (1980); Emery, Interparental Conflict and the Children of Discord and Divorce, 92 PSYCHOLOGICALBULL. 310 (1982); Hetherington, Cox & Cox, The Aftermath of Divorce, in CONTEMPORARY READINGS IN CHILDPSYCHOLOGY 234 (E. Hetherington & R. Parke 2d ed. 1981) [hereinafter The Aftermath of Divorce]; Hetherington, Cox& Cix, Effects of Divorce on Parents and Children, in NONTRADITIONAL FAMILIES 233 (M. Lamb ed. 1981); Kurdek,An Integrative Perspective on Children's Divorce Adjustment, 36 AM. PSYCHOLOGIST 856 (1981); Zill, Divorce, MaritalHappiness and the Mental Health of Children: Findings from the FCD National Survey of Children (paper presented at theNational Institute of Mental Health Workshop on Divorce and Children, Bethesda, Maryland, Feb. 1978) (on file with theStandford Law Review).

[FN164]. See, e.g., Emery, supra note 163; The Aftermath of Divorce, supra note 163; Zill, supra note 163, at 53-54. Somecommentators who consider family conflict to be a central explanation for adjustment difficulties in children of divorce haveargued that the adversarial nature of the custody disputes accompanying some divorces contribute significantly to suchproblems. See Emery & Wyer, Divorce Mediation, 42 AM. PSYCHOLOGIST 472, 473-74 (1987); Scott & Emery & Wyer,Dispute Resolution: The Adversarial System and Divorce Mediation, in PSYCHOLOGY AND CHILD CUSTODYDETERMINATIONS 23, 23-29, 39 (L. Weithorn ed. 1987).

[FN165]. Emery & Wyer, supra note 164, at 473.

[FN166]. Glick, Marriage, Divorce, and Living Arrangements, 5 J. FAM. ISSUES 7, 23 (1984). Census Bureau data for theyear 1981 reveal that 20% of all children under age 18 lived with only one parent. Id. Approximately 70% of those childrenlived in households where the parents were separated or divorced. Id. The remaining 30% lived in single-parent householdswith a parent who was never married or who was widowed. Id.

[FN167]. Furstenberg, Nord, Peterson & Zill, The Life Course of Children of Divorce: Marital Disruption and Parental



Contact, 48 AM. SOC. REV. 656, 663 (1983). This study reported that, within its national sample, 51.8% of divorced fatherswho did not live with their children had not seen their children for at least the last year (35% had had absolutely no contactfor the last five years and 16.3% had most recently been in contact some time between one and five years before). Id. About15% of the fathers had had contact with their children between one and 11 times during the last year, 16.7% had been incontact between 12 and 51 times during that period, and 16.4% had been in contact at least 52 times. Id.

[FN168]. Glick, Children of Divorced Parents in Demographic Perspective, 35 J. SOC. ISSUES 170, 180 (1979); Zill, supranote 163, at 20.

[FN169]. L. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMICCONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 339 (1985); see also Fineman, Illusive Equality: OnWeitzman's Divorce Revolution (Book Review), 1986 AM. B. FOUND. RES. J. 781.

[FN170]. Id. at 278. In California, for example, the mandatory child support minimum that judges must order is guided by thestandards developed for the federal Aid to Families with Dependent Children legislation, requiring no support above thefederally determined 'powerty level.' CAL. CIV. CODE §§ 4720-4724 (West Supp. 1987).

[FN171]. M. GRAETZ, FEDERAL INCOME TAXATION 473 (1985) (citing U.S. Census Bureau Statistics); L.WEITZMAN, supra note 169, at 262.

[FN172]. L. WEITZMAN, supra note 169, at 210, 212, 372-74.

[FN173]. Id. at 206-07, 372-74.

[FN174]. Id. at 206-07.

[FN175]. Id. at 185; Weitzman, Bringing the Law Back In, 1986 AM. B. FOUND. RES. J. 791, 795-96.

[FN176]. M. GRAETZ, supra note 171, at 473.

[FN177]. See, e.g., CAL. CIV. CODE § 4801(a)(1)(A)-(C), (e)-(f) (West Supp. 1987).

[FN178]. L. WEITZMAN, supra note 169, at 184-214.

[FN179]. J. WALLERSTEIN & J. KELLY, supra note 163, at 25-26; L. WEITZMAN, supra note 169, at 319-21.

[FN180]. See J. WALLERSTEIN & J. KELLY, supra note 163, at 25-26; L. WEITZMAN, supra note 169, at 318-21.

[FN181]. L. WEITZMAN, supra note 169, at 319-20.

[FN182]. See summary of studies reported by Wells, supra note 77, at tables 1-4. Three investigations revealed that over 80%(83%, 84%, and 90% respectively) of children in studied facilities were from homes in which the biological parents were nolonger living together. Id. One study found the proportion to be only 29% in its sample. Id. These proportions are comparedwith census data that reveal that approximately 20% of children in the general population live in homes with only one parent.See Glick, supra note 166, at 23; note 166 supra.

[FN183]. See P. LERMAN, supra note 6, at 115-18.

[FN184]. Social Security Act of 1935, ch. 531, 49 Stat. 627 (codified as amended at 42 U.S.C. §§ 601-609 (1982)).Specifically, if a 'normal' child needed the help of the child welfare system because her family had inadequate financialresources, the AFDC legislation provided direct economic support to the family to enable it to continue providing care withinits home. Id. §§ 401, 406, 49 Stat. 627, 629 (codified as amended at 42 U.S.C. §§ 601, 606(a) (1982)).

[FN185]. P. LERMAN, supra note 6, at 115-19. Lerman has predicted that by the year 2000, these facilities will be but amemory.

[FN186]. Id. at 121.



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[FN187]. Id. at 140.

[FN188]. Id. at 125.

[FN189]. Id. at 132.

[FN190]. Juvenile Justice and Delinquency Prevention Act of 1974, Pub. L. No. 93-415, 88 Stat. 1119 (codified in relevantpart at 42 U.S.C. $ 5633- 5637 (1982)).

[FN191]. A central provision of the JJDPA made the disbursement of federal grants to state juvenile justice program thatwere available under the Act contingent upon deinstitutionalization of status offenders and nonoffenders (that is, dependentand neglected children). Id. § 223, 88 Stat. 1119, 1121 (codified at 42 U.S.C. § 5633(a)(12) (1982)). Other provisions of theAct required the states to devote 75% of their federal funds to a range of programs designed, in part, to foster a morecommunity-based approach to juvenile delinquency prevention and rehabilitation. Id. § 223, 88 Stat. 1119, 1120 (codified at42 U.S.C. § 5633(a)(10) (1982)). See Krisberg & Schwartz, Rethinking Juvenile Justice, 29 CRIME & DELINQ. 333,334-35 (1983).Some states have psssed legislation with even more 'teeth' than the JJPDA. For example, in 1977 an absolute bar to theplacement of status offenders in secure detention facilities went into effect in California. CAL. WELF. & INST. CODE §601.1(b) (West Supp. 1987).

[FN192]. The rate of arrests for status offenses in the United States dropped from 1,928 per 100,000 in 1974 to 1,624 per100,000 in 1979, at 15.8% decline. Krisberg & Schwartz, supra note 191, at 340. The number of status offense casesprocessed by juvenile courts dropped from 1,142 per 100,000 in 1975 to 901 per 100,000 in 19798 a decrease of 21.1%. Id. at341. The rate at which status offenders were referred to detention centers dropped from 487 per 100,000 in 1975 to 156 per100,000 in 1979, a decrease of 67.9%. Id.There are some interesting gender differences in these data as well. Because status offense violations are typically the basisfor detention of female adolescents, a more dramatic drop in the institutionalization of female versus male offenders in thejuvenile justice system might be expected. Id. at 342, 344. This prediction is in fact supported by the data. Although thefigures within the status offender population are not broken down by gender, general data on rates of detention are. Thus,while there was an overall decrease of 26.9% from 1975 to 1979 in the rate of detention for juveniles in all categories ofstatus offenses, the female detention rate decreased by 44.4%, whereas the male detention rate decreased by only 19.5%. Id.at 341-42. Confirming this finding, United States Census Pureau data on admission rates to public juvenile correctionalfacilities reveal a 12.3% drop in short-term detention rates between 1974 and 1979, 80.5% of which was a result of loweredadmission rates for females. Id. at 341-42. Examination of data on admissions to training schools (i.e., long-term detention),reveals relatively stable overall rates from 1974 to 1979, although the gender composition shifted. Id. at 343-44. Femaleadmissions dropped by 37%, while male admissions actually increased by 8.8%. Id.

[FN193]. P. LERMAN, supra note 6, at 123.

[FN194]. Lerman calculated a statistic he referred to as 'custody-care- treatment episodes,' which takes into account bothresidence and admission statistics. Id. at 123. Using this statistic as the basis of a 50-year comparison of rates in the threeprimary child care and control systems, he found that the total rate of institutionalization across systems rose from 685 to1,518 between the 1920s and 1970s, an increase of more than 120%. Id. at 140. Child welfare rates were approximatelyhalved during that period, dropping from 441 to 228, while juvenile corrections rates increased almost five-fold from 221 to1,094. Mental health rates increased more than eight-fold, from 23 to 196. Even within the child welfare system, a shiftoccurred in that the entire institutionalized population was labeled as dependent or neglected in the 1920s, whereasapproximately half of the juveniles in that system in the 1970s were labeled as emotionally disturbed. The child welfaresystem clearly has certain ideological and professional links to the mental health system. Id. at 140-41.

[FN195]. Id. at 141.

[FN196]. See note 192 supra and accompanying text.


[FN198]. 'Transinstitutionalization' is a term apparently coined by a New York Times reporter, see Altman, Release of



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Mentally Ill Spurring Doubts, N.Y. Times, Nov. 20, 1979, at B1, col. 2, and used by social policy researchers, see, e.g.,Warren, Labeling the Mentally Ill, in LAW AND DEVIANCE 159, 175 (H. Ross ed. 1981); Warren, New Forms of SocialControl: The Myth of Deinstitutionalization, 24 AM. BEHAVIORAL SCIENTIST 724, 726-30 (1981) [hereinafter NewForms of Social Control]. Several researchers have contended that this phenomenon accounts, at least in part, for theincreasing rates of psychiatric hospitalization of minors. See, e.g., P. LERMAN, supra note 6, at 134, 136; Schwartz,Jackson-Beeck & Anderson, supra note 97, at 372; New Forms of Social Control, supra, at 728-30; Warren & Guttridge,supra note 95, at 133-34; see also Costello & Worthington, Incarcerating Status Offenders: Attempts to Circumvent theJuvenile Justice and Delinquency Prevention Act, 16 HARV. C.R-C.L. L. REV. 41, 61-72 (1981).

[FN199]. The most convincing data track reductions in psychiatric hospitalization of older persons and correspondingincreases in nursing home use. Between 1950 and 1970, the number of persons age 65 and older in mental hospitalsdecreased more than 50%, from 1,150 per 100,000 to 563 per 100,000. Yet, the rate at which such persons entered homes forthe aged or dependent grew nearly 125%, from 1,769 to 3,966, and the rate at which they were admitted to chronic hospitalsincreased by an even greater percentage, from 72 to 175, or 145%. P. LERMAN, supra note 6, at 36-38. Commentators havealso attributed the dramatic increases in the number of beds in long-term care facilities for elderly persons (from 25,000 in1939 to 450,000 in 1954 to 1.2 million in 1974) to a complex interaction of factors including the absence of adequatecommunity resources, see Brody, Lawton & Liebowitz, Senile Dementia: Public Policy and Adequate Institutional Care, 74AM. J. PUB. HEALTH 1381, 1383 (1984), increases in the population of older persons, the large-scale discharge of elderlypersons from state mental hospitals, and a series of federal statutes that provide funding for long-term care and the buildingof new facilities, see Brody, The Formal Support Network: Congregate Treatment Settings for Residents with SenescentBrain Dysfunction, in CLINICAL ASPECTS OF ALZHEIMER'S DISEASE AND SENILE DEMENTIA 301, 305 (N.Miller & G. Cohen eds. 1981). An examination of the diagnostic characteristics of the nursing home population revealed thata substantial proportion is experiencing mental, as well as physical, health disorders, suggesting that many in that populationmight have been admitted to mental hospitals in earlier years. Id. at 309; see also Estes & Harrington, Fiscal Crisis,Deinstitutionalization, and the Elderly, in 24 AM. BEHAVIORAL SCIENTIST 811 (1981).Scholars also have linked increases in state prison populations with mental health system deinstitutionalization. A decrease inresident counts in state mental hospitals of approximately 64% between 1968 and 1978 as a result of the deinstitutionalizationmovement was accompanied by a corresponding increase of approximately 65% in state prison populations during the sameperiod. Steadman, Monahan, Duffee, Harstone & Robbins, The Impact of State Mental Hospital Deinstitutionalization onUnited States Prison Populations, 1968-1978, 75 J. CRIM. L. & CRIMINOLOGY 474, 475 (1984) [hereinafter Impact ofDeinstitutionalization]. Steadman and his colleagues concluded that only a small part of these shifts were attributable to theactual movement of specific individuals from mental hospitals to state prisons. Nonetheless, they posited that thesecomplementary changes in institutional systems may be the result of effects, such as social labeling, see notes 272-276 supra,and social tolerance of deviance, more indirect than can be tracked by examining individual case histories of institutionalizedpersons. The Steadman group also noted that transinstitutionalization can occur in either direction between the mental healthand criminal justice systems. Id. at 476.Another researcher, also arguing that deinstitutionalization of mental patients has led to increased processing of such personsin the criminal justice system, reported that in the first two years after a more stringent civil commitment law went intoeffect, one county experienced a more than 100% increase in persons found incompetent to stand trial. Abrahamson, TheCriminalization of Mentally Disordered Behavior: Possible Side-Effect of a New Mental Health Law, 23 HOSP. &COMMUNITY PSYCHIATRY 101, 104 (1972).Others have suggested that the imposition of sentences to be served in local jails also operates as a form of social control ofdeinstitutionalized mental patients. See, e.g., Melick, Steadman & Cocozza, The Medicalization of Criminal BehaviorAmong Mental Patients, 20 J. HEALTH & SOC. BEHAV. 228 (1979).


[FN201]. Lerman has suggested that a variety of 'acting out' or 'deviant' behaviors which previously could have led to afinding of 'delinquency' or a 'need for supervision' (as a status offender) are serving as the basis for hospitalizing children as'mentally ill.' P. LERMAN, supra note 6, at 134, 136; see also notes 95-107 supra and accompanying text.

[FN202]. 'Roger,' a participant in the research study that I conducted in Virginia, see note 99 supra, was 15 at the time of histhird psychiatric hospitalization. He had traveled across all three child care and control systems. The view that Roger wasself-destructive and had 'poor impulse control' led to his mental health admissions. He had been in the custody of theDepartment of Social Services for the four years preceding this hospitalization because his mother had voluntarily
























relinquished custody after a Child Protective Services investigation classified him as a neglected child. Roger had neverknown his father, and had lived in several foster homes. He had also been before the juvenile court several times, and was onprobation for a 'breaking and entering' offense at the time of this hospitalization. Roger clearly could have been handled byany of the three child care and control systems; his placement in a psychiatric facility appeared to be more a function of itsaccessibility rather than of its unique suitability for the treatment of his problems.Fifteen-year-old 'Crystal' had been sexually abused by her stepfather. Ostroff, supra note 104, at 71, 72. She used cocaine,shoplifted, and was hospitalized in a psychiatric facility by her mother. Although Crystal was admitted to a psychiatrichospital, but her problems just as easily could have been addressed in the juvenile justice or child welfare systems.The stories of Roger and Crystal suggest that, even when children have not actually moved among the systems, the potentialremains for classification according to whatever system provides the easiest access.Data from a 1981 national survey support the notion that children in the various care and control systems resemble each otherquite a bit. Large numbers of children who had been labeled as delinquents, as status offenders, or who had committedproperty crimes were found in the mental health and child welfare, as well as juvenile justice, systems. Surprisingly, moreabused children were housed in juvenile justice facilities than in child welfare or mental health facilities. Equal numbers ofchildren with 'thought disorders' (manifestations of some psychotic disorders) were institutionalized in juvenile justice andmental health facilities, and more children labeled as suicidal or depressed resided in juvenile justice than in mental healthfacilities. Interestingly, the most prevalent 'problem, condition, or pattern' across the three groups was the existence of familyproblems, present in 73% of the cases examined. U.S. GENERAL ACCOUNTING OFFICE, RESIDENTIAL CARE:PATTERNS OF CHILD PLACEMENT IN THREE STATES 30 (1985) [hereinafter GAO] (citing University of ChicagoSchool of Social Service Administration, The National Survey of Residential Group Care Facilities for Children and Youth:Some Preliminary Findings (unpublished study)).

[FN203]. Warren & Guttridge, supra note 95, at 122.

[FN204]. See, e.g., E. SCHUR, THE POLITICS OF DEVIANCE 147-49 (1980); Spector, Beyond Crime: Seven Methods toControl Troublesome Rascals, in LAW AND DEVIANCE 127, 127-29, 138-41, 152-54 (H. Ross ed. 1981); New Forms ofSocial Control supra note 198, at 724-30. Parsons defines mechanisms of social control as society's attempts to return a socialsystem to a state of equilibrium after normative patterns are disturbed by deviant behavior. Parsons, The Social System, INTHE SOCIOLOGY OF MENTAL ILLNESS 17, 17, 21 (O. Grusky & M. Pollner eds. 1981). Thus, according to this theory,the social system takes steps to counteract deviance and, if one avenue of control is closed, society will find some othermeans to return to its perceived state of 'normal' functioning.

[FN205]. Schwartz, Jackson-Beeck & Anderson, supra note 97, at 383; Warren & Guttridge, supra note 95, at 129-31.

[FN206]. E. SCHUR, supra note 204, at 147-49.

[FN207]. Parham v. J.R., 442 U.S. 584 (1979).

[FN208]. See notes 43 & 49 supra.

[FN209]. 443 U.S. 622 (1979).

[FN210]. See, e.g., Bellotti v. Baird, 442 U.S. 622, 647-48 (1979) (plurality opinion); see also Parham, 442 U.S. at 600-06.

[FN211]. See Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (recognizing the right of parents to 'direct theupbringing and education of children under their control,' free from unreasonable interference by the state); see also Meyer v.Nebraska, 262 U.S. 390, 401 (1923); Goldstein, Medical Care for the Child at Risk: On State Supervention of ParentalAutonomy 86 YALE L.J. 645 (1977). These rights of family privacy and parental autonomy were vigorously reinforced inWisconsin v. Yoder, 406 U.S. 205, 232 (1972), in which the Court stated that the 'primary role of the parents in theupbringing of their children is now established beyond debate as an enduring American tradition.'

[FN212]. See note 28-29 supra and accompanying text.

[FN213]. See City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Bellotti, 443 U.S. at 642-43;Carey v. Population Servs. Int'l, 431 U.S. 678 (1977); Planned Parenthood v. Danforth, 428 U.S. 52 (1976). These casesextended to minors the right of privacy concerning reproductive choice that originally was defined in Griswold v.



























































































Connecticut, 381 U.S. 479 (1965), and Roe v. Wade, 410 U.S. 113 (1973). The right of privacy has been defined as theindividual's 'interest in independence in making certain kinds of important decisions,' Whalen v. Roe, 429 U.S. 589, 599-600(1977), and 'the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters sofundamentally affecting a person as the decision whether to bear or beget a child,' Eisenstadt v. Baird, 405 U.S. 438, 453(1972) (emphasis omitted). The Court has not clearly delineated which decisions are sufficiently 'important' or 'fundamental'to be considered as within the scope of the right of privacy. On a case by case basis, the Court has indicated whether certaintypes of conduct are protected, but has stopped short of endorsing a more comprehensive concept of the right of privacy suchas the 'right to be let alone.' Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). This 'case by case'approach to defining the right of privacy led Professor Ely to comment wryly that the Court has substituted a 'lengthy andundifferentiated string' of citations for a conceptual analysis of what is protected by the right. Ely, Foreword: On DiscoveringFundamental Values, 92 HARV. L. REV. 5, 11 n.40 (1978).The Court repeatedly has held that 'mature' minors have a privacy interest in decisional automomy. See Akron Center ForReproductive Health, 462 U.S. at 439-40; Bellotti, 443 U.S. at 642-43 (plurality opinion); Carey, 431 U.S. at 693; Danforth,428 U.S. at 74-75. Arguably, the types of decisions in which the Court has extended to minors a right of privacy (forexample, decisions whether to use contraception or terminate a pregnancy), are no more 'important' or 'fundamental' than is adecision whether to enter an inpatient facility. Clearly, each of these decisions has serious ramifications for the health,general well-being, and future of the minors affected. In his Parham dissent, Justice Brennan suggested that psychiatrichospitalization of minors should be governed by Danforth: 'The right to be free from wrongful incarceration, physicalintrusion, and stigmatization has significance for the individual surely as great as the right to an abortion.' 442 U.S. at 631(Brennan, J., dissenting).The right to exercise decisional autonomy requires, however, that the decisionmaker be capable of exercising autonomy.Thus, in Bellotti, for example, the Court conditioned a minor's right to choose whether to have an abortion upon herdemonstration that 'she is mature and well enough informed to make intelligently the abortion decision on her own.' 443 U.S.at 647 (plurality opinion).Neither the Court nor other legal sources has suggested a single clear standard for judging the competency of an individual toconsent to or refuse treatment. See Roth, Meisel & Lidz, Tests of Competency to Consent to Treatment, 134 AM. J.PSYCHIATRY 279 (1977); see also Weithorn & Campbell, The Competency of Children and Adolescents to Make InformedTreatment Decisions, 53 CHILD DEV. 1589, 1590 (1982). The Restatement (Second) of Torts provides the best articulationof current standards: 'If a person consenting is a child or one of deficient mental capacity, the consent may still be effective ifhe is capable of appreciating the nature, extent and probable consequences of the conduct consented to . . ..'RESTATEMENT (SECOND) OF TORTS § 892A(2) comment b (1979). See Roth, Meisel & Lidz, supra, and Weithorn,Developmental Factors and Competence to Make Informed Treatment Decisions, 5 CHILD & YOUTH SERVS. 85, 88-95(1982), for further elaboration of various legal notions of competency.The findings of an empirical study comparing the capacities (to consent to treatment) of minors of different ages with thoseof adults suggested that, across various competency standards, adolescents generally do not differ statistically from adults.Weithorn & Campbell, supra, at 1594-95. The research results also revealed statistically significant differences, according tomost tests of competency, between a younger age group (9-year-olds) and adults. Id. at 1594-96. These results suggest that,whereas most adolescents might be capable of exercising the right of privacy, some younger children might not. Thus, onepotential limitation of an analysis applying decisional autonomy, or privacy, in the context of mental hospitalization, assuggested by Brennan, is that younger minors and minors experiencing psychological problems that might interfere with theirability to make decisions may be unable to exercise competently their privacy rights. However, because the overwhelmingproportion of minors in mental hospitals are adolescents, GAO, supra note 202, at 31-35, age is unlikely to be a disability formost minors. In addition, research on the effects of serious mental disorders on competency suggest that, contrary to morestereotypic perceptions, persons with psychological problems often are as capable of making personal treatment decisions asare medical patients or nonpatients. For a summary of relevant research, see Weithorn, supra note 146, at 30-32. Publicationof a study examining the competency of children, adolescents, and adults to consent to mental hospitalization that Iconducted in Virginia, see note 99 supra, is forthcoming.

[FN214]. 442 U.S. at 599-600. A similar liberty interest was the basis of the opinion in In re Gault, 387 U.S. 1 (1967), inwhich the Court held that the state must provide certain due process protections in delinquency proceedings that could resultin the deprivation of liberty. The district court in Parham characterized this liberty interest as relating to freedom from bothphysical restraint and the 'emotional and psychic harm' caused by institutionalization. J.L. v. Parham, 412 F. Supp. 112, 136(M.D. Ga. 1976), rev'd sub nom. Parham v. J.R., 442 U.S. 584 (1979).

[FN215]. Parham, 442 U.S. at 602. Melton identified 14 erroneous assumptions the Parham majority made about the






























































































































functioning of people and institutions. See Melton, Family and Mental Hospitals as Myths: Civil Commitment of Minors, inCHILDREN, MENTAL HEALTH, AND THE LAW 151, 153 (N. Reppucci, L. Weithorn, E. Mulvey & J. Monahan eds.1984).

[FN216]. Consistent with current-day family law jurisprudence, the Court in Parham began its analysis with the traditionalnotion of the family as a unit in which dependent children can rely upon loving, capable, and responsible parents for support,care, nurturance, and protection. Parham, 442 U.S. at 602. Absent some overt indication (such as the existence of child abuseor neglect) that this traditional presumption was inaccurate, the Court was content not to disturb the discretion of parentsregarding the well-being of their children. Id. at 602-04.

[FN217]. Id. at 604.

[FN218]. Id. at 632 (Brennan, J., dissenting). Justice Brennan characterized the decision by parents 'to surrender custody oftheir child to a state mental institution' as signaling an existing 'break in family autonomy.' Id. at 631.

[FN219]. Results of various studies, in addition to those cited by Justice Brennan, reinforce his theory that turmoil frequentlyexists in familities that seek mental hospitalization for their children. For example, Melton and Spaulding reviewed datarevealing that a high proportion of the parents of children admitted to psychiatric hospitals have a history of mental disordersor related problems (such as alcoholism) and that there are unusually high levels of family 'distress,' 'dysfunction,' and'instability' in these homes. G. MELTON & W. SPAULDING, supra note 121. And, a 1981 national survey examiningchildren and adolescents in all three primary child care and control systems revealed family problems in 73% of the cases.GAO, supra note 202, at 30.

[FN220]. See Weithorn, supra note 146, at 86-87; see also note 116 supra.

[FN221]. Justice Brennan made this point in his Parham dissent: '[E]ven well-meaning parents lack the expertise necessary toevaluate the relative advantages and disadvantages of inpatient as opposed to outpatient psychiatric treatment. Parentaldecisions to waive hearings in which such questions could be explored, therefore, cannot be conclusively deemed eitherinformed or intelligent.' 442 U.S. at 632 (Brennan, J., dissenting).

[FN222]. Parham, 442 U.S. at 605.

[FN223]. Id. at 605, 610.

[FN224]. Perlin, An Invitation to the Dance: An Empirical Response to Chief Justice Warren Burger's 'Time-ConsumingProcedural Minuets' Theory in Parham v. J.R., 9 BULL. AM. A. PSYCHIATRY & L. 149, 156-62 (1981). This study of theNew Jersey Mental Health Advocates Office found that, in serving as guardians ad litem or amicus curiae, state employedadvocates were able to open many doors for children and their families. These advocates obtained independent clinicalevaluations of the children, investigated alternatives less restrictive than hospitalization, opened funding channels, andfacilitated family contact with community agencies. Id.

[FN225]. Parham, 442 U.S. at 606-16.

[FN226]. Id. at 607.

[FN227]. Id. at 607-16.

[FN228]. See K. Wells, supra note 77; see also notes 76-77 supra and accompanying text; notes 291-295 infra andaccompanying text. The draft report of the American Psychological Association Division of Child, Youth, and FamilyServices Task Force on Residential Treatment underscores that low levels of agreement typically characterize decisions bymental health professionals as to whether a particular child should be treated in a residential setting. K. Wells, supra note 77,at 2. The report also notes that there is a virtual absence in the mental health fields of well-developed theoretical rationalesthat link factors about the child (such as diagnosis or prognosis) to decisions about placement in residential settings. Id. at1-2.














































[FN231]. See C. KIESLER & A. SIBULKIN, supra note 2, at 20-24; P. LERMAN, supra note 6, at 150; Mental Hospitals,supra note 120, at 349-50; Myths, supra note 120, at 1323-24; Lerman, Deinstitutionalization and Welfare Policies, 479ANNALS 132, 142-51 (1985); Mosher, Alternatives to Psychiatric Hospitalization: Why Has Research Failed to beTranslated into Practice?, 309 NEW ENG. J. MED. 1579, 1580 (1983). Kiesler and Sibulkin point out that insurance policiesdisfavor outpatient therapy by imposing on reimbursement for such treatment 'deductibles,' maximum dollar limits, limits onthe number of sessions per year, and requirements for coinsurance. By contrast, inpatient treatment typically is covered fully.C. KIESLER & A. SIBULKIN, supra note 2, at 21.

[FN232]. See Mental Hospitals, supra note 120, at 349-50; Myths, supra note 120, at 1323-24.

[FN233]. C. KIESLER & A. SIBULKIN, supra note 2, at 17-20.

[FN234]. Id. at 20.


[FN236]. According to almost all empirical studies examining cost, community-based alternatives to mental hospitalizationare less expensive than is institutional treatment. See, e.g., Mental Hospitals, supra note 120, at 357; Myths, supra note 120,at 1327; Mosher, supra note 231, at 1579; see also note 135 supra and accompanying text.

[FN237]. See, e.g., Mosher, supra note 231, at 1579.

[FN238]. See C. KIESLER & A. SIBULKIN, supra note 2, at 251; J. LINNEY, Deinstitutionalization in the Juvenile JusticeSystem, in CHILDREN, MENTAL HEALTH, AND THE LAW 211, 223 (N. Reppucci, L. Weithorn, E. Mulvey & J.Monahan eds. 1984).

[FN239]. See C. KIESLER & A. SIBULKIN, supra note 2, at 251-53.

[FN240]. See, e.g., MASS. GEN. LAWS ANN. ch. 175, § 47B (West Supp. 1987). As of 1985, 13 states had laws mandatingcoverage for psychiatric care, 21 for alcoholism treatment, and 11 for treatment of drug addiction. Hearing, supra note 68, at6 (fact sheet introduced by Rep. George Miller, Committee Chairman). Because of the recent Supreme Court decisionupholding the Massachusetts statutory scheme, Metropolitan Life Ins. v. Massachusetts, 471 U.S. 724 (1985), additionalstates may enact laws requiring private insurance providers to cover psychiatric and chemical dependency treatment. Id.

[FN241]. Metropolitan Life, 471 U.S. at 758.

[FN242]. For example, the Massachusetts statute requires insurers to cover a minimum of 60 days of inpatient care per year,but only $500 of annual outpatient visits. MASS. GEN. LAWS ANN. ch. 175, § 47B (West Supp. 1987). The outpatientcoverage probably would pay for about 10 psychotherapy sessions with a 20% copayment, or 17 sessions with a 50%copayment. By contrast, the inpatient coverage entitles the beneficiary to 60 days of round-the-clock care.

[FN243]. Relman, The New Medical-Industrial Complex, 303 NEW ENG. J. MED. 963, 963 (1980).

[FN244]. Id.

[FN245]. See P. STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE 420- 49 (1982); Eisenberg,The Case Against For-Profit Hospitals, 35 HOSP. & COMMUNITY PSYCHIATRY 1009, 1009-10 (1984); Gaylin, TheComing of the Corporation and the Marketing of Psychiatry, 36 HOSP. & COMMUNITY PSYCHIATRY 154, 154 (1985);Groner, Investor-Owned Chain Concept: Challenge to the Nonprofit Sector, HEALTH CARE MGMT. REV., Summer 1979,at 37, 37; Levenson, Issues Surrounding the Ownership of Private Psychiatric Hospitals by Investor- Owned Hospital Chains,34 HOSP. & COMMUNITY PSYCHIATRY, 1127, 1127-30 (1983); Relman, Investor-Owned Hospitals and Health-CareCosts, 309 NEW ENG. J. MED. 370, 370 (1983) [hereinafter Investor-Owned Hospitals]; Relman, supra note 243, at 963-65.

[FN246]. See Groner, supra note 245, at 39.



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[FN247]. See Gaylin, supra note 245, at 154; Relman, supra note 243, at 965- 66.

[FN248]. See Relman, supra note 243, at 965-66.

[FN249]. See Gaylin, supra note 245, at 154. Investment costs are low, in part, because there is little need for expensiveequipment, such as radiological and laboratory technologies, that often is required for adequate care of physical disorders.

[FN250]. See Hearings, supra note 68, at 48 (prepared statement of Mark Schlesinger, Research Coordinator, Center forHealth Policy and Management, Harvard University).

[FN251]. See Levenson, supra note 245, at 1127.

[FN252]. Id.

[FN253]. See Gaylin, supra note 245, at 154.

[FN254]. Id.



[FN257]. In the private market setting where the 'hospital is the seller, the physician is the purchasing agent for the patient,'financial relationships between referring physicians and hospitals may be inconsistent with optimal patient care. Relman,supra note 243, at 968.

[FN258]. Id.

[FN259]. Id. '[T]he public's perception of the doctor as an honest, disinterested trustee . . . is bound to be shaken by anyfinancial association between practicing physicians and the new medical-industrial complex.' Id. at 967.

[FN260]. Kinkead, Humana's Hard-Sell Hospitals, FORTUNE, Nov. 17, 1980, at 68, 80 (quoting Wendell Cherry, Presidentof Humana, Inc.).

[FN261]. See COMMITTEE ON IMPLICATIONS OF FOR-PROFIT ENTERPRISE IN HEALTH CARE, INSTITUTE OFMEDICINE, FOR-PROFIT ENTERPRISE IN HEALTH CARE 152-54 (1986); Veatch, Ethical Dilemmas of For-ProfitEnterprise in Health Care, in THE NEW HEALTH CARE FOR PROFIT 125, 144-49 (B. Gray ed. 1983).

[FN262]. The Child Fixers, supra note 117.

[FN263]. Those studies comparing patient costs in hospital chains with those in nonprofit hospitals found that the highercosts per admission in private chains were not a function of higher charges for basic services (such as daily room charges).Rather, the higher costs resulted from more use of, and higher mark-up on, ancillary services such as laboratory tests,radiology, and supplies. See Lewin, Derzon & Margulies, Investor-owneds and Nonprofits Differ in Economic Performance,HOSPITALS, July 1, 1981, at 52, 56-58; Pattison & Katz, Investor-Owned and Not-for-Profit Hospitals, 309 NEW ENG. J.MED. 347, 349-50 (1983); Investor-Owned Hospitals, supra note 245, at 370-71.

[FN264]. Investor-Owned Hospitals, supra note 245, at 370-71.

[FN265]. 'As businesses, the investor-owned chain hospitals may have been more successful at generating net income . . . fortheir owners, but only by virtue of charging more per admission, not by operating less expensively.' Id. at 371-72. Whencompared with nonprofit hospitals, investor-owned hospital chains are more costly to the consumer (or her insurer) and havehigher operating expenses. See Lewin, Derzon & Margulies, supra note 263, at 56-58; Pattison & Katz, supra note 263, at349-50; Investor-Owned Hospitals, supra note 245, at 370-71. These differences cannot be accounted for by arguing that thefor-profit chains see 'sicker' patients or provide a higher quality of care than do their not-for-profit counterparts inasmuch asdata indicate that for-profit hospitals employ significantly fewer personnel per patient. See Lewin, Derzon & Margulies,supra note 263, at 52; Investor-Owned Hospitals, supra note 245, at 371. Furthermore, this latter hypothesis is inconsistent



with a pattern referred to as 'cream skimming.' That is, researchers have observed that private chains tend to reject patientswith difficult-to-treat problems if provision of the necessary treatment is less profitable than it is for higher frequency, moreeasily treatble, problems. Eisenberg, supra note 245, at 1011; Relman, supra note 243, at 968.These findings are not surprising in light of special characteristics of health care services that make them less responsive tothe natural mechanisms of the competitive free market. Specifically, patients are not consumers 'in the Adam Smith sense,'but are really 'claimants.' Relman, supra note 243, at 966. For 90% of all Americans, health insurance of some type coversbasic medical expenses. Id. Thus, they may seek medical care with virtually no concern for the price of each individualservice. Those who are ill may not be inclined to shop for the best bargain, as they may be more concerned with factors suchas receiving immediate care and receiving it from doctors referred by reputable sources. 'Hence, the classic laws of supplyand demand do not operate because health-care consumers do not have the usual incentives to be prudent, discriminatingpurchasers.' Id. These findings are accentuated in mental health practice, as inpatient psychiatric treatment is typically anemergency service. Thus, contrary to medical hospital care, which includes a high proportion of elective and plannedprocedures, psychiatric admissions are almost never planned.The medical marketplace also differs from other markets in that the consumer is usually dependent upon the advice andjudgment of the physician in choosing services--perhaps 70% of all expenditures for personal health care are the decisions ofdoctors. Id. Thus, as contrasted with decisions to purchase ordinary commodities, consumers usually do not make their owndecisions about how much and what type of medical services they need. Id. Furthermore, citizens in current-day Americansociety perceive receipt of medical services to be a 'right,' a perception they do not maintain relative to most consumer goods.Id. at 967.All these special characteristics of the medical market conspire to produce an anomalous situation when private businessenters the scene. A private corporation in the health-care business uses technology often developed at public expense, and itsells services that most Americans regard as their basic right--services that are heavily subsidized by public funds, largelyallocated through the decisions of physicians rather than consumers, and almost entirely paid for through third-partyinsurance. The possibilities for abuse and for distortion of social purposes in such a market are obvious.Id. at 966-67.

[FN266]. Veatch, supra note 261, at 147.

[FN267]. The Child Fixers, supra note 117.

[FN268]. Dawley, A Commentary on Advertising, Newsletter of Division 18 of the American Psychological Association,Winter 1985, at 2, col. 3 (on file with the Stanford Law Review).

[FN269]. Id.

[FN270]. Another example of an advertisement that might have such an effect on parents is one produced by theComprehensive Care Corporation that displays a series of snapshots of an individual as he grows from baby to teenager,culminating in 'mug shots.' Cox, Juvenile Lock-Ups Flourish in Private For- Profit Settings, L. A. Daily J., Jan. 27, 1986, at1, col. 6. A narrator's voice urges parents to seek professional help 'before it is too late.' Id.


[FN272]. See generally S. HALLECK, PSYCHIATRY AND THE DILEMMAS OF CRIME (1967); N. KITTRIE, THERIGHT TO BE DIFFERENT: DEVIANCE AND ENFORCED THERAPY (1971); Melick, Steadman & Cocozza, supra note199; Morse, Crazy Behavior, Morals, and Science: An Analysis of Mental Health Law, 51 S. CAL. L. REV. 527 (1978);Spector, supra note 204; Impact of Deinstitutionalization, supra note 199. Steadman and colleagues concluded that 'the beliefthat the criminal justice and mental health systems are functionally interdependent has gained widespread acceptance amongcommentators and researchers' commencing with Penrose, a British researcher who studied the relationship between thecorrectional and mental health systems in several European countries, in 1939: '[A]s a general rule, if the prison services areextensive, the asylum population is relatively small and the reverse tends to be true.' Id. at 474 (quoting Penrose, MentalDisease and Crime: Outline of a Comparative Study of European Statistics, 18 BRIT. J. MED. PSYCHOLOGY 1 (1939)).

[FN273]. See generally P. CONRAD & J. SCHNEIDER, DEVIANCE AND MEDICALIZATION (1980); Conrad, TheDiscovery of Hyperkinesis: Notes on the Medicalization of Deviant Behavior, 23 SOC. PROBS. 12 (1975); Melick,Steadman & COCOZZA, supra note 199; Schneider, Deviant Drinking as Disease: Alcoholism as a Social Accomplishment,25 SOC. PROBS. 361 (1978); Schneider & Conrad, The Medical Control of Deviance: Contests and Consequences, 1 RES.



SOC. HEALTH CASE 1 (1980).

[FN274]. Gusfield, Moral Passage: The Symbolic Process in Public Designations of Deviance, 15 SOC. PROBS. 175, 187(1967).

[FN275]. See generally S. HALLECK, supra note 272; N. KITTRIE, supra note 272; Morse, supra note 272.

[FN276]. E. SCHUR, supra note 204, at 148.

[FN277]. P. LERMAN, supra note 6, at 150.

[FN278]. M. Rosenberg, Psychological Maltreatment of Children and Youth 7 (August 1985) (Unpublished paper presentedat American Psychological Association Convention) (on file with the Stanford Law Review).

[FN279]. Gusfield, supra note 274, at 179.

[FN280]. Schneider & Conrad, supra note 273, at 3.

[FN281]. A current example of this phenomenon may be the strong support given by organizations of patients' parents to theposition that mental disorders are biologically-based. In particular, the American Mental Health Fund (founded and directedby the man whose son, John Hinckley, shot President Reagan in 1981) emphasizes in its public education campaigns that'mental illness is a medical illness that requires medical attention. Some forms can be caused by a biological disorder. . . .Learn to see the sickness.' Denton, Ads Take Aim on Stigma, Am. Psychological A. Monitor, Jan. 1987, at 17, col. 1.

[FN282]. Gusfield, supra note 274, at 187.

[FN283]. J. GUSFIELD, SYMBOLIC CRUSADE: STATUS POLITICS AND THE AMERICAN TEMPERANCEMOVEMENT 180-88 (2d ed. 1986); Schneider & Conrad, supra note 273, at 7, 11, 13. In an analysis of howoverconsumption of alcohol became labeled as a disease, for example, Schneider concluded that: 'The disease concept owesits life to . . . variously interested parties, rather than to substantive scientific findings. As such, the disease concept ofalcoholism is primarily a social rather than a scientific or medical accomplishment.' Schneider, supra note 273, at 370-71.Shifts away from the 'sickness' label also entail political struggles. This is evident from House committee hearings testimonyon the increasing rates of private mental hospitalization of minors, largely a 'battle' between social scientists and children'srights advocates on the one side, see Hearings, supra note 68, at 7-12, 47, 52, 127, 154, and psychiatrists and private hospitalassociations on the other, id. at 21, 106, 159. The latter groups have the most to lose from any deviation from the currenttrend of medicalizing child and adolescent problems.

[FN284]. Gusfield, supra note 274, at 182-83.

[FN285]. P. CONRAD & J. SCHNEIDER, supra note 273, at 10-14, 23; A. SCULL, MUSEUMS OF MADNESS 125-63(1979).

[FN286]. P. CONRAD & J. SCHNEIDER, supra note 273, at 34 (emphasizing the so-called 'humanitarian and scientific'aspects of medical definitions and intervention). Compare the medical approach to seriously troublesome juveniles with theChinese approach. Consistent with Chinese culture, intervention with troublesome juveniles in China, like other deviants, isfirst attempted at the community level. S. LENG & H. CHIU, CRIMINAL JUSTICE IN POST-MAO CHINA 143 (1985).Parents, schools, residential groups, and others all organize efforts to alter the behavior of the juvenile. If this approach fails,children are sent to residential camps for 're-education through labor,' a policy consistent with socialist ideology. Id.; Epstein,Reformatory Education in Chinese Society, 30 INT'L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 87, 89-90(1986). Even though the goals of some juvenile correctional centers in the United States may be similar to those of theChinese labor camps, those holding the cultural attitudes now predominant in the United States are unlikely to accept anintervention strategy with such a strong socialist formulation.

[FN287]. STEDMAN'S MEDICAL DICTIONARY 386 (23d ed. 1976).

[FN288]. The 'medical model' of psychopathology treats behavioral and interpersonal problems as diseases. As such, it views



such problems as having discrete and discernable etiologies, as susceptible to precise identification and differentiation (fromone another and from nondisease states) through diagnosis, and, once identified, as responsive to particular treatments thathave been developed for diseases within those categories. Albee, Emerging Concepts of Mental Illness and Models ofTreatment: The Psychological Point of View, 125 AM. J. PSYCHIATRY 870, 870 (1969); Blaney, Implications of theMedical Model and Its Alternatives, 132 AM. J. PSYCHIATRY 911, 911 (1975). The basis of the model's diagnostic systemis that the observation of certain symptoms can permit one to generalize more globally about the individual's functioning. SeeLazare, Hidden Conceptual Models in Clinical Psychiatry, 288 NEW ENG. J. MED. 345, 346 (1973). Thus, on the basis oflimited information, a clinician makes 'predictions' about other features of the 'disease' process that have not been directlyobserved or reported. Zubin, Classification of the Behavior Disorders, 18 ANN. REV. PSYCHOLOGY 373, 373-75 (1967).Currently, in the United States, there are two schools of the medical model within psychiatry. One is the organic school,which views mental disorders as actual physical diseases with biological origins. See, e.g., Kaplan & Sadock,Neurochemistry of Behavior, in 1 COMPREHENSIVE TEXTBOOK OF PSYCHIATRY 177 (A. Freedman, H. Kaplan & B.Sadock 3d ed. 1980); Kaplan & Sadock, Neurophysiology of Behavior, in 1 COMPREHENSIVE TEXTBOOK OFPSYCHIATRY, supra, at 189; Rainer, Genetics and Psychiatry, in 1 COMPREHENSIVE TEXTBOOK OF PSYCHIATRY,supra, at 135. The other is the dynamic school, which views mental disorder as having psychological causes, such asunresolved Oedipal conflicts. See, e.g., Meissner, Theories of Personality and Psychopathology: Classical Psychoanalysis, in1 COMPREHENSIVE TEXTBOOK OF PSYCHIATRY, supra, at 631. While the dynamic school does not presume aphysical basis for behavioral and interpersonal problems, it does adopt the medical terminology and framework, and thusimplies that psychological problems can be viewed in a manner analogous to physical illnesses.Empirical evidence suggests that biological factors may play a role in the development of certain forms of emotionalproblems, such as manic-depressive disorder and schizophrenia. See, e.g., Klerman, Overview of Affective Disorders, in 2COMPREHENSIVE TEXTBOOK OF PSYCHIATRY, supra, at 1305; Lazare, supra, at 348; Weiner, Schizophrenia:Etiology, in 2 COMPREHENSIVE TEXTBOOK OF PSYCHIATRY, supra at 1121; Wolpert, Major Affective Disorders, in2 COMPREHENSIVE TEXTBOOK OF PSYCHIATRY, supra at 1319. But the use of the medical model typically is notrestricted to those disorders for which such evidence exists. Rather, it is used as a metaphor in describing the entire spectrumof behavioral and interpersonal problems.

[FN289]. DSM-III-R, supra note 100.

[FN290]. WORLD HEALTH ORGANIZATION, THE INTERNATIONAL CLASSIFICATION OF DISEASES (9th ed.1978).

[FN291].Beyond arguments about the legitimacy of the metaphor drawn between the medical model and psychotherapy, one can alsoargue that there is voluminous data to support the view that the medical model is not useful and must be purged from ourscientific approaches to behavior change. . . . [The] literature . . . demonstrates the inability of the model to generate a systemfor classifying disorders which reaches a respectable level of reliability and validity; the failure of the model to yield anintervention approach which is effective; and even the failure of the model to provide a valid method of refuting erroneoushypotheses about problematic behavior.R. STUART, TRICK OR TREATMENT 8 (1970); see also Albee, A Competency Model To Replace the Defect Model, inCOMMUNITY PSYCHOLOGY 213, 213-14 (M. Gibbs, J. Lachenmeyer & J. Sigal eds. 1980); Albee, supra note 288, at872-74; Albee, Models, Myths, and Manpower, 52 MENTAL HYGIENE 168, 168-69 (1968); Morse, supra note 272, at535-54; Shah, Crime and Mental Illness: Some Problems in Defining and Labeling Deviant Behavior, 53 MENTALHYGIENE 21, 24-27 (1969).For critiques of prevalent diagnostic systems and methods, see, e.g., G. FRANK, PSYCHIATRIC DIAGNOSIS: A REVIEWOF RESEARCH (1975), R. STUART, supra, at 68-85, Ennis & Litwack, Psychiatry and the Presumption of Expertise:Flipping Coins in the Courtroom, 62 CALIF. L. REV. 693 (1974), Schacht & Nathan, But is It Good for the Psychologists?Appraisal and Status of DSM-III, 32 AM. PSYCHOLOGIST 1017, 1022 (1977), and Zubin, But is It Good for Science?,CLINICAL PSYCHOLOGIST, Winter 1977-1978, at 1.Alternative assessment approaches not based on the medical model include behavioral strategies, see, e.g., BEHAVIORALASSESSMENT OF ADULT DISORDERS (D. Barlow ed. 1981); BEHAVIORAL ASSESSMENT OF CHILDHOODDISORDERS (E. Mash & L. Terdal eds. 1981); CONCEPTUAL FOUNDATIONS OF BEHAVIORAL ASSESSMENT (R.Nelsen & S. Hayes eds. 1986); S. HAYNES, BEHAVIORAL ASSESSMENT: RECENT ADVANCES IN CONCEPTS,METHODS, AND APPLICATIONS (1979); J. QUIRK & J. WORZBYT, THE ASSESSMENT OF BEHAVIORPROBLEM CHILDREN: A SYSTEMATIC BEHAVIORAL APPROACH (1983), and family-oriented strategies, see, e.g.,



S. MINUCHIN, supra note 136; Simmonds, Children's Rights and Family Dysfunction: 'Daddy, Why Do I Have To Be theCrazy One?,' in CHILDREN'S RIGHTS AND THE MENTAL HEALTH PROFESSIONS 33 (G. Koocher ed. 1976).Scientists have identified several limitations on the use of psychiatric diagnostic categories with children. Achenbach andEdelbrock reviewed a series of studies on the reliability of child behavior assessments (across raters and over time). Theirmost striking finding was that when different raters observed the same children in different situations, there was an extremelylow level of agreement among raters. Achenbach & Edelbrock, The Classification of Child Psychopathology: A Review andAnalysis of Empirical Efforts, 85 PSYCHOLOGICAL BULL. 1275, 1288 (1978). These low reliability levels suggest thatchildren are likely to behave differently in different situations and with different people. Id. at 1296. This observationconforms with the results of an earlier review of research that indicated that behavior is influenced by situational factors andmay not be consistent across different contexts. W. MISCHEL, PERSONALITY AND ASSESSMENT 41-72 (1968). Thus,because traditional diagnostic procedures with children may take into account only a small range of relevant behavior, suchprocedures may lead to inaccurate and overbroad generalizations concerning psychological functioning.A review of inter-rater reliabilities of the major DSM-III diagnostic categories for children and adolescents yielded generallylow coefficients, leading one author to make the following recommendations for the next revision of the Diagnostic andStatistical Manual: '(1) Diagnostic categories which are empirically unverified and which are unreliably used should beexcluded. (2) Those remaining should be sharpened and their defining characteristics should be brought more into line withresults of multivariate statistical studies. (3) The operational criteria . . . should be based on empirical research.' Quay, ACritical Analysis of DSM-III as a Taxonomy of Psychopathology in Childhood and Adolescence, in CONTEMPORARYDIRECTIONS IN PSYCHOPATHOLOGY 151, 164 (T. Millon & G. Klerman eds. 1984); see also Garmezy, Never Mindthe Psychologists: Is It Good for the Children? (pts. 3 & 4), CLINICAL PSYCHOLOGIST, Spring/Summer 1978, at 1;Phillips, Draguns & Bartlett, Classification of Behavior Disorders, in 1 ISSUES IN THE CLASSIFICATION OFCHILDREN 26 (N. Hobbs ed. 1975).

[FN292]. T. SZASZ, THE MYTH OF MENTAL ILLNESS (1964); Albee, supra note 288, at 874; Bazelon, The Perils ofWizardry, 131 AM. J. PSYCHIATRY 1317, 1320 (1974); Morse, supra note 272, at 577-90; Shah, supra note 291, at 28-31.

[FN293]. See Garmezy, supra note 291, at 4-6; Shah, supra note 291, at 26- 27; see also Rosenhan, supra note 144, at 251-52.In Rosenhan's study, eight individuals with no psychiatric disorder presented themselves for admission to differentpsychiatric hospitals, stating that they had been hearing voices, after which they behaved completely 'normal.' The hospitalstaff did not identify these individuals as psychiatrically healthy (although, interestingly, other patients did). Subsequently,the investigator informed a psychiatric hospital that 'pseudopatients' would be admitting themselves sometime in the nextthree months. Although, in reality, no such individuals were admitted, 41 out of 193 patients were identified as being 'sane'by at least one member of the staff.

[FN294]. The often-cited 'Berkeley Guidance Study' examined a large sample of children between 21 months and 14 years ofage from the general population (i.e., not a patient population). J. MACFARLANE, L. ALLEN & M. HONZIK, ADEVELOPMENTAL STUDY OF THE BEHAVIOR PROBLEMS OF NORMAL CHILDREN BETWEEN TWENTY-ONE MONTHS AND FOURTEEN YEARS (1954). The investigators reported that a wide range of behavioral problems,including temper outbursts, destructiveness, fears, lying, irritability, and disturbing dreams, occurred rather frequently amongthe children in their sample. Furthermore, the study showed that these problems tended to subside with age and changes incircumstances. Entrance into school and the beginning of adolescence--developmental periods of great stress forchildren--were characterized by a high frequency of behavioral disorder. These findings suggest that, applying a statisticalconcept of normality (that is, based upon how typical its occurrence is in the general population), many forms of behavioraldisorder must be considered normal from a developmental perspective. Moreover, psychiatric and psychological interventiondo not appear to be necessary in the great proportion of these cases.The results of a second study, which examined 482 randomly selected 6- to 12- year-olds, support the Berkeley findings. Theauthors of the study found that almost half of the children had temper outbursts at least twice a week, were overactive, or hadseven or more fears or worries. Lapouse & Monk, An Epidemiological Study of Behavior Characteristics of Children, in 48AM. J. PUB. HEALTH 436 (1958). Findings of other studies support the hypothesis that many types of problematic childbehavior improve over time, and without intervention. For example, one study found that of 515 children whose teachers hadrated them as 'disturbed' at one time, only 30% were so rated two years later. Similar findings were reported in a study thatcompared 50 children being treated at an outpatient clinic with 50 children exhibiting similar behavioral problems who werenot treated. Within two years, two-thirds of both groups had improved significantly. H. CLARIZIO & G. McCOY,BEHAVIOR DISORDERS IN CHILDREN 14 (3d ed. 1983); see also Clarizio, Stability of Deviant Behavior Through Time,52 MENTAL HYGIENE 288 (1968); Garmezy, supra note 291, at 4-6.






[FN298]. See P. LERMAN, supra note 6, at 13.

[FN299]. See C. KIESLER & A. SIBULKIN, supra note 2, at 20.

[FN300]. See notes 135 & 236 supra.

[FN301]. For a survey of employer-sponsored private insurance plans, see OFFICE OF ECONOMIC AFFAIRS,AMERICAN PSYCHIATRIC ASSOCIATION, THE COVERAGE CATALOG 21-358 (1986).

[FN302]. Id.

[FN303]. Id.

[FN304]. Id.; see also Mosher, supra note 231.

[FN305]. See notes 66-70 & 195 supra and accompanying texts.


[FN307]. See notes 76 & 84-93 supra and accompanying texts. An adaptation of the concept of 'diagnosis related groups'('DRGs') also could be applied to private insurance compensation for psychiatric hospitalization. DRGs, which are part of theprospective payment system incorporated into Medicare in 1983, Pub. L. No. 98-21, § 601, 97 Stat. 65, 149-52 (codified at42 U.S.C. 1395ww (Supp. III 1985)), altered the manner in which the federal government reimburses hospitals for theirtreatment of Medicare patients. Rather than reimbursing a hospital for the actual costs incurred in providing treatment to eachparticular patient, the government now pays the hospital a fixed amount, predetermined by the government to be theappropriate cost of treatment for all patients with a particular diagnosis. For a description of the system, see Verville,Medicare Rate Setting and Its Problems: A Fixed Price Per Bundled Product, 6 J. LEG. MED. 85 (1985).At present, reimbursement to psychiatric hospitals and psychiatric units of general hospitals is excluded from this system. SeeFrank & Lave, Per Case Prospective Payment for Psychiatric Inpatients: An Assessment and Alternatives, 11 J. HEALTHPOL. 83, 84 (1986). Thus, such facilities are still reimbursed on an actual cost basis. Critics of inclusion argue that, in themental health field, 'diagnosis alone is not a good indicator of treatment.' Id. at 85. And, in general, experts in childpsychology and psychiatry have emphasized that the presence of particular types of problem behavior and the severity of adisorder are more important indicators of the need for and length of specific forms of treatment than are diagnoses. See, e.g.,AACAP GUIDELINES, supra note 76, at 17. Notwithstanding the apparent validity of this observation, somediagnosis-based generalizations about the appropriateness of inpatient psychiatric treatment (and various lengths of suchtreatment) may be meaningful. For example, although such generalizations may be problematic when children are diagnosedas having psychotic or serious depressive disorders, diagnosis-wide limitations on the use of inpatient services seemwarranted for children diagnosed as having certain personality or adjustment disorders. See notes 108-116 supra andaccompanying text.

[FN308]. 42 U.S.C. § 1396 (1982).

[FN309]. J. KNITZER, supra note 53, at 44-48.

[FN310]. Id.

[FN311]. The Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97- 35, §§ 901, 1911, 95 Stat. 357, 543 (codified asamended at 42 U.S.C. § 300x (Supp. III 1985)).

[FN312]. Mental Health Systems Act, Pub. L. No. 96-398, 94 Stat. 1564 (1980) (originally codified at 42 U.S.C. §§9401-9523 (1982), largely replaced by the Onmibus Budget Reconciliation Act of 1981, Pub. L. No. 97- 35, § 902(c)(1), 95












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Stat. 357, 560).

[FN313]. Mental Health Systems Act, Pub. L. No. 96-398, § 2, 94 Stat. 1564, 1565-66 (1980).

[FN314]. REPORT TO THE PRESIDENT FROM THE PRESIDENT'S COMMISSION ON MENTAL. HEALTH (1978).

[FN315]. The Community Mental Health Centers Act of 1963, Pub. L. No. 88- 164, §§ 201-207, 77 Stat. 282, 290-94.

[FN316]. Mental Health Systems Act, Pub. L. No. 96-398, §§ 201-204, 94 Stat. 1564, 1571-81.

[FN317]. Id. § 207, 94 Stat. 1564, 1583-84.

[FN318]. See Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97- 35, § 902(e)(1), 95 Stat. 357, 560.


[FN320]. See notes 135 & 236 supra and accompanying texts. A model for state experiments testing the cost-effectiveness ofcommunity-based services is described in G. MELTON, L. WETTHORN & C. SLOBOGIN, COMMUNITY MENTALHEALTH CENTERS AND THE COURTS: AN EVALUATION OF COMMUNITY-BASED FORENSIC SERVICES(1985). The Virginia legislature, with a consensus of fiscal conservatives and civil libertarians, mandated that the state courtsand Department of Mental Health and Mental Retardation cooperate in an empirical study to test the cost- efficacy,effectiveness, and quality of community-based, compared with institutional, mental health evaluations of criminaldefendants. Faculty at the University of Virginia conducted the study, which was funded by the state. The findings showedthe community-based system to be superior on all variables, leading the legislature to require that outpatient evaluations beconducted in place of the previously common 30- to 60-day state hospital evaluations. See VA. CODE ANN. §§19.2-169.1.B, 19.2-169.5.B (Supp. 1987).

[FN321]. See notes 53-62 supra and accompanying text. Several sets of model statutes have been developed as well. Formodel statutes proposed by the American Psychiatric Association and the Division of Child, Youth, and Family Services ofthe American Psychological Association respectively, see Guidelines for the Psychiatric Hospitalization of Minors, 139 AM.J. PSYCHLATRY 971 (1982) and Model Act for the Mental Health Treatment of Minors, reprinted in Melton & Spaulding,supra note 121.

[FN322]. See Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897) ('It is revolting to have no better reason fora rule of law than that so it was laid down in the time of Hanry IV.').

[FN323]. R. MNOOKIN, IN THE INTEREST OF CHILDREN 519-20 (1985).

[FN324]. Id. at 519.

[FN325]. See, e.g., id. at 262-64 (reviewing judicial application of Massachusetts statute regulating adolescents' access toabortions); N. Ehrenreich, V. Roddy & E. Baxa, Civil Commitment in Virginia: Variations Between Law and Practice 26(June 1982) (unpublished manuscrip on file with the Stanford Law Review) (reviewing judicial application of Virginia civilcommitment criteria).

[FN326]. In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court articulated the factors relevant to determinationof whether administrative procedures are constitutionally sufficient to protect the various interests affected by theproceedings. In particular, the Court required that the following factors be considered in making such determinations: (1) 'theprivate interest that will be affected by the official action'; (2) 'the risk of an erroneous deprivation of such interest throughthe [nonjudicial] procedures used, and the probable value, if any, of additional or substitute procedural safeguards'; and (3)'the Government's interest, including the function involved and the fiscal and administrative burdens that the additional orsubstitute procedural requirement would entail.' Id. at 335.Although the Court, in Parham v. J.R., considered these factors and rejected the need for adversarial judicial proceedings, Isuggest that such proceedings, or those conducted by an interdisciplinary review panel, are indicated by such consideration.The Parham Court acknowledged children's interest in liberty and freedom from unnecessary bodily restraint, 442 U.S. 584,601 (1979). Contrary to the Court's analysis, I would not give greater weight to the interests of parents to exercise discretion














































in child-rearing, id. at 601-04, particularly in the case of mental hospital admission decisions, for the reasons explicatedabove, see notes 218-221 supra and accompanying text. For similar reasons, I would differ with the Court's assessments thatthe risk of erroneous admission decisions by parents is small, and that the provision of 'neutral factfinders' (the admittinghospital staff) provides sufficient protection to guard against inappropriate admissions. Id. at 606-17. Although adversarialhearings are costly to the state, the interest involved, liberty, is sufficiently valued within our society to justify suchexpenditures. Furthermore, inappropriate admissions are costly in their failure to remedy the problems that lead tohospitalization and because they may exacerbate these, or create new, problems.

[FN327]. See, e.g., VA. CODE ANN. § 16.1-241(B) (1982).

[FN328]. Parham, 442 U.S. 613-15.




[FN332]. Consistent with Addington v. Texas, 441 U.S. 418 (1979), which held that the standard of proof in a civilcommitment hearing must be 'clear and convincing' evidence or 'beyond a reasonable doubt,' most state statutes that providejuvenile with a judicial hearing also mandate the use of the 'clear and convincing' standard. See, e.g., ARIZ. REV. STAT.ANN. § 36-540 (1986) (same standard for juveniles and adults); N.C. GEN. STAT. § 122C- 223(b) (1986). In addition, somestates that previously required proof beyond a reasonable doubt reduced the burden to clear and convincing evidence after theCourt's decision in Addington. See, e.g., IDAHO CODE § 66- 329(i) (1980) (amending IDAHO CODE § 66-329(k) (Supp.1986)).

[FN333]. Most state statutes that provide juveniles with a judicial hearing require the court to determine that less restrictivealternatives are not appropriate prior to issuing an order of admission. See, e.g., VA. CODE ANN. § 37.1-67.3 (Supp. 1987),§ 16.1-241(B) (1982) (same standard for juveniles and adults).

[FN334]. This requirement that less restrictive alternatives actually be tried and shown to be unsuccessful prior tocourt-ordered admission is a protection against undocumented medical 'conclusions' that less restrictive alternatives will notbe effective.



[FN337]. See, e.g., Weithorn & Campbell, supra note 213.

[FN338]. The law of informed consent generally requires that a patient's treatment decision be 'informed,' 'voluntary,' and'competent' in order to be legally valid. See Meisel, Roth & Lidz., Toward v. Model of the Legal Doctrine of InformedConsent, 134 AM. J. PSYCHLATRY 285, 286-87 (1977).

[FN339]. Developmental research suggests that minors of certain age groups may be particularly vulnerable to pressure frompersons such as parents or authority figures. See, e.g., Grisso & Vierling, Minors' Consent to Treatment: A DevelopmentalPerspective, 9 PROF. PSYCHOLOGY 412, 421-24 (1978); Scherer, The Effects of Parental Influence and MedicalDilemmas on Adolescent Treatment Decisions (1986) (unpublished Master's thesis, University of Virginia) (On file with theStanford Law Review). Furthermore, even if minors were not more likely to defer to pressure based on their psychologicaldevelopment, they may still be more manipulable than adults because of their position of relative dependence. Minors, unlikeadults, generally are dependent upon their families to provide for their basic needs. Thus, the possibility of alienating thoseproviders may seem unconscionable to many minors, or contrary to their short- term interests, or both.Research that I conducted in Virginia state psychiatric facilities, see note 99 supra, revealed that many minors admitted on a'voluntary' basis (that is, they and their parents agreed to admission) report that they did not actually desire admission. Rather,because of pressures from family (e.g., a parent's saying, 'If you don't admit yourself, I'll send you to foster care') or the court(e.g., a judge's saying, 'If you agree to admission, I won't have to commit you'), they agreed to admit themselves. These





































































phenomena underscore the inherent problems with statutes that provide protections for involuntary admissions while leavingallegedly voluntary admissions unscrutinized. Under such statutory schema, the protection accorded an individual whoseadmission decision is primarily a product of familial or judicial pressure is illustory.




[FN343]. Little is known about differences in quality of care between chain- owned private hospitals and nonprofit facilities.The available data only indirectly address quality issues, such as the finding in one study that investor-owned hospitalsemployed significantly fewer professional staff per patient. Lewin, Derzon & Margulies, supra note 263, at 52, 58; see alsonote 265 supra. Thus, absent more specific data, one must speculate about quality of care on the basis of more generaldifferences between for-profit chains and traditional providers.First, corporately owned hospitals have 'fewer formal and informal connections with the communit[ies] in which theyoperate.' Hearings, supra note 68, at 45 (statement of Mark Schlesinger, Research Coordinator, Center for Health Policy andManagement, Harvard University). This fact touches on only one aspect of the larger issue of accountability. The corporatelyowned hospital is accountable to its investors and stockholders, and the measure of success is profit. By contrast, thenonprofit hospital is accountable to its typically unpaid board of directors (which represents the community served by thefacility), and the measure of success is responsiveness to the medical needs of that community while maintaining financialviability. Id.Second, because proprietary providers tend to be more sensitive to financial incentives, they offer fewer services than dotraditional providers and typically in the form of a standardized 'package.' Id. at 47. One commentator has referred to thisdistinction as the 'franchise' model (investor-owned facilities) versus the 'skilled craftsman' model (traditional providers). Id.Thus, to the extent that patients with particular types of problems (such as psychological problems) require individuallytailored approaches and the availability of a broad range of services, the 'franchise' model might offer less appropriate, andtherefore, lower quality, care.Third, investor-owned hospitals tend not to serve as centers for training and medical education, a factor that can affect qualityof care negatively or positively, depending upon one's perception of the relative benefits and costs of integrating medical andacademic functions. See Eisenberg, supra note 245, at 1011-12 (arguing that teaching hospitals serve an essential educationaland scientific function).In sum, the current state of knowledge about private hospital chains suggests that they provide patients with less appropriateand lower quality services because of decisions made in the interest of profits.


[FN345]. Certificate-of-need statutes require any existing or proposed facility to apply to and obtain from the statecertification before undertaking substantial capital expenditures. The facility must demonstrate that any such proposedexpenditures are to provide services the community needs. See Blumstein & Sloan, Health Planning and Regulation ThroughCertificate of Need: An Overview, 1978 UTAH L. REV. 3. New hospitals to which the state denies certification also may bedenied a state license, thus precluding their operation in the state. Alternatively, if the state does allow an uncertified hospitalto open, the facility may be unable to receive certain types of government and third-party reimbursement for services. Id. at21.

[FN346]. State rate-setting commissions may set a ceiling on the total revenues that particular private facilities may earnduring a given year. See, e.g., ANNUAL REPORT: 1986 HEALTH CARE FINANCE COMMISSION, MAINE 7-13 (Jan.1987) (on file with the Stanford Law Review).

[FN347]. These mechanisms appear to be helpful in checking the growth of private facilities. As an example, theproliferation of the for-profits has been restricted largely to the 'Sun Belt' where no such barriers are operative. Relman, supranote 243, at 964. Maine reports that its certificate-of-need policy has been the essential vehicle by which it has controlledgrowth of facilities providing adolescent inpatient psychiatric services. Telephone interview with Robert Foster, Director ofBureau of Children with Special Needs, Department of Mental Health and Mental Retardation, State of Maine (Feb. 9, 1987).

[FN348]. S. JONAS, HEALTH CARE DELIVERY IN THE UNITED STATES 384-85 (1977).



[FN349]. A model of this type of advocacy system is that described in the Mental Health Systems Act, Pub. L. No. 96-398,94 Stat. 1564 (1980) (originally codified at 42 U.S.C. §§ 9401-9523; largely replaced by the Omnibus Budget ReconciliationAct of 1981, Pub. L. No. 97-35, § 902(c)(1), 95 Stat. 357, 560). As passed by Congress in 1980, the Act authorized stategrants for state-wide advocacy and patients' rights protection systems. Id. § 502, 94 Stat. 1564, 1601-02. This section of theAct was repealed in 1981 shortly after the Reagan Administration and a new Congress took office. Omnibus BudgetReconciliation Act of 1981, Pub. L. No. 97-35, § 902(c)(1), 95 Stat. 357, 560.

[FN350]. D. ROTHMAN, supra note 7, at 239 ('Convenience had always been part of the reason for the asylum'spopularity.').

[FN351]. Bazelon, supra note 292, at 1320.

[FN352]. Olmstead v. United States, 277 U.S. 438, 479 (1927) (Brandeis, J., dissenting).

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