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ABSTRACT:
There is an ethical debate about whether mental health professionals should predict dangerousness. One powerful objection involves considering the nature and scope of what is being predicted. Dangerousness is a bifurcated concept with a descriptive component, corresponding to risk factors and their relation to violence, and a normative component, corresponding to a moral and legal judgment that sufficient risk exists to justify involuntary confinement. The normative judgment is exclusively reserved for legal decision makers, although due process constitutionally constrains these decisions. This article uses decision theory to show the general effects of due process on setting a minimal threshold of risk necessary to justify involuntary civil commitment. It then demonstrates the corollary of applying these effects to the results of the foremost actuarial tool, under varying base rate assumptions. It concludes that the involuntary confinement of only the highest risk individuals is legally justified.
CITATION: Nicholas Scurich and Richard John, The Normative Threshold for Psychiatric Civil Commitment, 50 Jurimetrics J. 425-452 (2010).
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All American states have commitment statutes that authorize the involuntary confinement of dangerous individuals.1 Psychiatric civil commitment statutes are comprised of two components, mental disorder and dangerousness, both of which are typically assessed by mental health professionals.2 The order for a civil commitment is thus heavily influenced by the opinion of mental health professionals3 (hereinafter clinicians), and their abilities to forecast who will engage in dangerous behavior.4 The ability of clinicians, who rely on unstructured intuition, to forecast dangerous behavior has been studied extensively and is highly controversial.5 This controversy moved the field of violence risk assessment in - at least - two directions. First, it spawned the development of more structured approaches to assessing risk.6 Some rely entirely on algorithms known as actuarial assessment; some provide structure to the clinical judgment.7 All have the promise of increasing predictive validity.8 Second, it engendered a debate along ethical grounds about whether clinicians engage in making predictions at all. Although the Supreme Court was not dissuaded,5 commentators have argued that low rates of predictive validity ethically place such predictions outside the scope of expertise because they lack scientific support.10 Other commentators argue that predictions can be ethically proffered, especially because courts require them, so long as the...