Journal of Criminal Law and Criminology

Volume 61 | Issue 2 Article 14

1970

Observations on Police Policy and Procedures forEmergency Detention of the Mentally IllArthur R. Jr. Matthews

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Recommended CitationArthur R. Jr. Matthews, Observations on Police Policy and Procedures for Emergency Detention of the Mentally Ill, 61 J. Crim. L.Criminology & Police Sci. 283 (1970)

THE JOURNAL OF CRIMINAL LAw, CRIMINOLOGY AND POLICE SCIENCE

Copyright 0 1970 by Northwestern University School of LawVol. 61, No. 2

Printed in U.S.A.

OBSERVATIONS ON POLICE POLICY AND PROCEDURES FOR EMERGENCYDETENTION OF THE MENTALLY ILL

ARTHUR R. MATTHEWS, JR.

Arthur R. Matthews, Jr., J.D., is an associate director of the Illinois Enforcement Commission,Chicago, Ill. Dr. Matthews served as a research attorney for the American Bar Foundation from1963 to 1965 following completion of his legal training at the University of Chicago. For four years hewas director of a project on Mental Illness and Criminal Law, and during 1969 was a full time con-sultant to the International Association of Chiefs of Police.-EDiToR.

The following example related to us by a policechief from a surburban community north of Chi-cago summarizes the major problems in policehandling of the mentally disabled:

The trouble with being a cop is you get allthe dirty jobs no one else will touch with a ten-foot pole. Take psychos and alkies. The hos-pitals won't take them, the doctors don't evenwant to talk to them, the relatives have givenup trying. We're all that's left. We try to hu-mor a guy, talk to them nice, but sometimesthey're better off in jail with three squaresand a roof over their heads. Next thing youknow we've got lawyers and doctors aroundhere screaming about civil rights and us copskeeping sick people in jail. We had a case theother day. This teen-age kid about 9 o'clockat night is playing poker in the middle ofMain Street without a deck and with noother players. One of my men took this kidover to the hospital. They wouldn't admit himwithout a lot of red tape. I'm home watchingT.V. when I get the word. Wait, I'll be rightdown. I get the run around from the clerk soI had him call his boss-the psychiatrist whoruns the hospital-at home.He was pretty madabout being called at home. I told him wewould let the kid go unless they took him forthe night. He said he didn't have the au-thority to give the go ahead signal. "Okay,"says I, "but I want your name and yourofficial title so if anything happens to this kidwe know where to send the reporters." Theboy was admitted.

In the spring of 1963, the American Bar Founda-tion undertook an 18-month field study entitled

"Mental Illness and Criminal Law." ' The aim ofthe study was exploratory, to discover and identifythe actual practices of the police and other agenciesof criminal justice administration in use from stateto state in dealing with the mentally disabled.This paper will discuss procedures used to moveapparently mentally ill persons from the com-munity to some place where care may be had andwill explore some of the implications of thesepractices for professional police policy. A moment'sreflection reveals that the police deal daily with allsorts of mentally disturbed persons, alcoholics,suicides, narcotic addicts, seniles, and the like.The issue of police handling of the mentally dis-abled is a legal one to the extent that laws specifythe class of persons subject to apprehension, eitherfor crime or for compulsory mental treatment, andestablishes the procedures to be followed. It is alsoa medical one since much of the information legalofficials act upon is based upon a medical model ofmental illness and supplied by doctors. This is notto say that the police perform a ministerial func-tion; as Egon Bittner has written:

In real police work the provisions contained inthe law represent a resource that can be in-voked to handle certain problems. Beyond

I This paper was presented as a lecture to policeexecutives who attended the Law Enforcement PolicyDevelopment Seminar held by the Law EnforcementStudy Center of the Social Science Institute of Washing-ton University, St. Louis at Bromwoods, Missouri,March 7, 1968, sponsored by the National Institute ofMental Health, the International Association of Chiefsof Police, the St. Louis Metropolitan Police Depart-ment, and the School of Continuing Education ofWashington University. It also reflects the final draftof portions of the final report of the American BarFoundation project, "Mental Illness and Criminal Law"(P.H.S. Grant MH 302-02, National Institute of MentalHealth), that will result in a book to be published laterthis year.

ARTHUR R. MATTHEWS, JR.

that, the law contains certain guidelines aboutthe boundaries of legality. Within theseboundaries, however, there is located a vastarray of activities that are in no importantsense determined by considerations of legality.In fact, in cases in which invoking the law isnot a foregone conclusion, as for example inmany minor offenses or in the apprehensionof mentally ill persons, it is only speciouslytrue to say that the law determined the act ofapprehension, and much more correct to saythat the law made the action possible. Theeffective reasons for the action are not locatedin the formulas of statutes but in considera-tions that are related to established practicesof dealing informally with problems.2

As a practical matter, difficulties arise first fromthe fact that neither law nor medicine, at least un-til very recently, has articulated any consistentapproach the police might follow with respect tothe mentally disabled and, secondly, from the factthat the public, speaking through its legislatures,has not provided the resources for dealing withsuch persons other than through the ordinarycriminal channels. We turn first to the legal aspects.

Entergency detention. In most cases of mental ill-ness, the need for hospitalization is not immediate.Relatively little harm results, or is believed to re-sult, from the delay consequent upon the initiationof plenary civil commitment proceedings, es-pecially when the inconvenience of delay is bal-anced against the potential abuse inherent in sum-mary procedure. Nevertheless, emergencies doarise when courts are closed or doctors unavailable,as when a serious suicide attempt is made or un-provoked violence occurs. In these circumstances,the police are usually called upon and must actforthwith since it may be inadvisable, impossible,or frankly dangerous to delay admission to a hos-pital in order to locate a judge or a doctor to au-thorize the necessary action. In such cases, theprotections of formal procedures for civil commit-

2 BrrmER, Police Discretion in Emergency Appre-hension of Mentally Il Persons, 15 SocIAL PROBLEMS278 (1967) 291. For the medical approach to these ques-tions generally, see GLAsscoTE, et al., The PSYcHATracEmERGENCY (1966), a publication of the Joint Informa-tion Service of the American Psychiatric Associationand the National Association for Mental Health; SiL-BERT, Psychiatric Patients in the Admitting EmergencyRoom, 11 AacR. GEN. PsYcH. 24 (1964); UNGERLEIDER,The Psychiatric Emergency, 3 ARcH. GEN. PSYCH. 593(1960); PsYcmHTuc EmERGENCIES AND THE GENERALHOSPITAL (1965), a publication of the American Hos-pital Association.

ment are considered to be inapposite; the need isfor a simple, informal, and speedy remedy.

The remedy is that of emergency detention, aprocedure that is a part of the statutory law of fiveof the six states included in this study.' Emergencydetention statutes authorize the apprehension andinvoluntary retention in short-term custody (12 to72 hours) of a person supposed by the police (orother designated public official) to be mentally dis-abled and an immediate danger to himself orothers. The place of detention may be the physicalcustody of an individual police officer, a jail, amental hospital, a psychiatric receiving hospital,or the psychiatric service of a general hospital.While in some states, such as Illinois, any citizenis authorized to act in such circumstances, the classof persons declared eligible to do so usually in-dudes the police, and it is rarely anyone else ex-cept the police who will accept responsibility toact in such circumstances. The important char-acteristic of emergency detention procedures isthat they authorize decisive action on the basis ofwhat is essentially a lay judgment, typically thatof a policeman, concerning the restrained person'smental condition. Thus, emergency detentionmust be distinguished from "temporary or obser-vational hospitalization," with which it is oftenconfused. The latter is a preliminary step in thecivil commitment process which requires medicalcertification or judicial approval and whose pur-pose is to accommodate psychiatric diagnosticand screening procedure, including short-termtreatment for as long as six months in some states.4

Authority for emergency detention of the dan-gerously mentally ill existed in common law priorto modem legislation. As a leading New York caseon the subject has said:

The common law recognized the power torestrain, summarily and without court process,an insane person who was dangerous at themoment. The power was to be exercised, how-ever, only when "necessary to prevent theparty from doing some immediate injury

aCalifornia, Illinois, the District of Columbia, NewYork, and Michigan.

'See LINDmAN AND McINmm, TuE MENTALLYDISABLED AND THE LAW (1961), 27, 38, 89-91; it isdifficult to see how 6 months hospitalization can becharacterized as an emergency measure. Georgia,Idaho, Missouri, Utah, and West Virginia have six-month provisions. Of the states included in this studythe following periods were authorized: California, 60days; Illinois, 30 days; Michigan, 60 days; New York,60 days; District of Columbia, 30 days; Florida, 15 days.

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POLICE POLICY AND THE MENTALLY ILL

eithe to himself or to others," and "only whenthe urgency of the case demands immediateintervention." On the other hand, insane per-sons who were not dangerous were "not liableto be thus arrested or restrained. And uponone who did the restraining rested the burdenof showing in order to justify it, the urgencyand necessity for the immediate restraint."

One of the difficulties with emergency detentionunder the common law rule is that the person ef-fecting the detention must be able subsequently,as in a suit for false arrest or malicious prosecu-tion,. to establish that the conditions in factexisted that would justify the detention. In pointof fact, most of the case law on the subject is the re-sult .of such lawsuits, as the case cited previouslyfrom New York exemplifies. In another leadingcase on the subject, the Supreme Court of Illinoisspelled out the potential liability:

The weight of authority appears to be thatan insane person may, without any adjudica-tion, be lawfully restrained of his liberty whennot to do so would endanger his own life or thelife of others, but such right to restrain islimited to cases of actual insanity and im-mediate danger. Insanity which does notrender the insane person dangerous to him-self or others is not a lawful excuse for re-straint without a judicial proceeding.8

Under emergency detention procedures estab-lished by statute, on the other hand, it is com-monly provided that policemen and others au-thorized to make emergency detentions are legallyimmune if they have acted "in good faith." Suchprovisions are designed, among other things, toencourage the police to rely upon emergency de-tention on grounds of mental illness as opposed tothe alternative of filing criminal charges against theperson in question. In any event, even wherestatute authorizes emergency detention, the com-mon law authority survives; in some jurisdictionsit may be broader than the statutory power.7 In5 Warner v. State, 297 N.Y. 395, 79 NE2d 459 (1948).6 Crawford v. Brown, 321 Ill. 305, 151 N.E. 911

(1926).7See Orvis v. Brickman, 196 F.2d 762 (D.C. Cir:

1952); Crawford v. Brown, supra, note 6; Warner v.State, supra, note 5; WEMOPEN AND OvERaOLSER,Commitment of the Mentally Ill, 24 Tnx. L.R. 307(1946) 314: "It seems to be a clearly settled principleof law that a police officer or, indeed, any citizen, hasthe right at common law to detain in a suitable recep-

Florida, where such a stdtute had'been enacted andsubsequently repealed, w" found -that the policecontinued to exercise th common law power whensituations warranted8 on the basis'of an opinion bythe Attorney General of Florida that the commonlaw power survived repeal of the statutory pro-vision.

Illustrative, in most respects;9 "of the statutesauthorizing emergency cfeientiOn-is 'tat of Cali-fornia:

When any person becomes so mentally ill asto be likely to cause injury to himself or othersand to require immediate care, treatment, orrestraint, a peace officer,'health officer, countyphysician, or assistant" cunty physician, whohas -reasonable cause to -believe that such isthe case, may take the person into custody forhis best interest and protection and place himas provided in this section. The person be-lieved to be mentally ill may be admitted anddetained in the quarters provided in anycounty hospital or state hospital upon appli-cation of the peace officer, health officer,county physician, or assistant bounty physi-cian. The application shall be in writing andshall state the circumstances under which theperson's condition was called to the officer'sor physician's attention and shall also statethat the officer or physician believes, as a re-sult of his personal observation, that the per-son is mentally Ri and because of his illness islikely to injure himself or others if not im-mediately hospitalized.

The superintendent or physician in chargeof the quarters provided in such county hos-pital or state hospital may care for and treatthe person for a period not to exceed seventy-two hours, excluding Saturdays, 'Sundays, andholidays. Within said seventy-two hours theperson shall be discharged from the institu-

tacle a person who is actually insane and as a conse-quence is dangerous by reason of his tendencies towardhimself or others, if detention is temporary and con-tinues only until legal proceedings for commitment canbe instituted."8 Statutory authority for emergency detention wasrepealed in 1963; Florida Laws 1963 c. 63-10281. Anemergency detention section was subsequently enactedeffective May 1, 1967; Fla. Stat. 394: 20(2)(c).9 The documentation from the police point of view

is of three types, the most formal being the "petition"required in Illinois, the least formal being the NewYork Cityprocedure which requires no paperwork. TheCalifornia requirement of an "application" falls some-where between these two extremes.

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tion unless a petition of mental illness is pre-sented to a judge of the superior court and thecourt issues an order for detention of suchperson, or unless the person is admitted as apatient under any other provision of law.10

The other states studied, except Florida, alsoauthorized emergency detention in their statutes.At the time of our study in 1963, Illinois had a sim-ilar statute, providing that "any person supposedto be mentally ill, or in need of mental treatment,and in such condition that immediate restraint isnecessary for the protection for such person orothers" n could be admitted for detention in ahospital for the mentally ill for a 24-hour period12

upon presentation to the hospital superintendentof a verified petition to that effect, signed by "anyreputable citizen" and stating that "no dulyqualified physician is immediately available."The Illinois requirement of a "verified petition,"completely at odds with the informal nature ofemergency detention procedures, has helped tomake the Illinois emergency procedure a deadletter; the requirement is an exceptional one. TheMichigan statute provides that "any peace officerof this state with the approval of the prosecutingattorney" may "take into temporary protectivecustody and confine for a period of not to exceed48 hours," any person believed to be "mentally illmanifesting homicidal or other dangerous tend-encies";"3 the approval of the prosecuting attorneymay be obtained within 24 hours following theaction of the peace officer alone. The District ofColumbia Code provision in effect at the time ofthis study provided an emergency detention pro-cedure for mentally disturbed persons found inpublic places.

Where the arresting officer reasonably believedthe person apprehended to be "insane" and "in-capable of managing his own affairs or a menaceto the public peace," the statute authorized hisarrest and detention at what is now known as the

10 Cal. Welfare & Inst'ns Code §5050.3 (1963); Pres-ently §5880; italics added.

-u l. Rev. Stat. Chapter 91-1/2, §6-1 (1959).1 2Ibid., §6-2 authorizes a 12-hour detention exclu-

sive of the hours of 6 P.m. and 6 A.M.; in effect, then, for24 hours.

1Mich. Stat. Ann. §14.809, Comp. Laws of 1948,'§330.19; a prosecuting attorney acting under this stat-ute in good faith has been held to be immune from lia-bility under the civil rights act; Kenney v. Killian, 133F. Supp. 571, (1955) aff'd Kenney v. Fox 232 F.2d 288(6th Cir: 1956).

District of Columbia General Hospital. 4 An addi-tional provision empowered specified police officialsto authorize emergency detention of "any indigentperson alleged to be insane or of unsound mind orany alleged insane person of homicidal or other-wise dangerous tendencies" found elsewhere thanin a public place. 5 In either case, detention up to48 hours was permitted.

New York recognizes the common law right ofemergency detention,16 and its statutes furtherstate that "any person, apparently mentally ill,and conducting himself in a manner which in asane person would be disorderly, may be arrestedby any peace officer and confined in some safe andcomfortable place until the question of his sanitybe determined." ' 7 When a detention is made un-der the statute, the police officer must notify thehealth officer, who must arrange for care and treat-ment."' In practice in New York City, the policeconsider this sufficient statutory authority to takementally ill persons to receiving hospitals, such asBellevue in Manhattan, without prior medicalapproval. The New York statute is of special in-terest because it assimilates the theoretically dis-tinct conceptions of the criminal offense of disor-derly conduct, on the one hand, and the "immedi-ately dangerous" mentally ill person, on the other. 9

By implication the police officer observes behavioramounting to disorderly conduct but decides theperson is not guilty by reason of insanity and thentakes him to the hospital. In practice, which meansfrom the policeman's lay point of view these con-cepts refer to indistinguishably similar conduct. Itis worth noting that the New York statute definesa class of persons narrower than those subject toemergency detention under the common law power.In fact it was in just such a case cited earlier thatthe New York court was called upon to decide thatthe common law power did survive and was broaderthan the statutory power and, hence, a defense in acivil suit for false arrest.

The importance from the police viewpoint of aclear and expeditious emergency detection proce-dure can scarcely be exaggerated. Emergency de-tention offers the policeman a quick and simple

14 D. C. Code §21-326. (1963).11 D. C. Code §21-327. (1963).16 See footnote 5 supra; additional authority for

emergency detention was subsequently enacted in NewYork. See Mental Hygiene Law, §78.3 (1967).

"7New York Mental Hygiene Law §81; Graniela v.City of New York, 211 NYS 2d 114 (1961).

"$New York Mental Hygeine Law, §81(2)(b) (1962).19 See discussion in text at fn. 30, infra.

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method of dealing with apparently dangerous per-sons who are unwilling or unable to go voluntarilyto a hospital or some other place where care may behad. Once the patient is in the hospital, the emer-gency no longer exists; doctors are available to pro-vide the medical assessment unavailable at thepoint of police contact and legal apparatus exists toreview the basis of detention. When the medicaljudgment has been supplied, and if the person isdiagnosed as indeed mentally ill, the policeman fillsout either an "application," an informal documentmuch the same as the criminal arrests form withwhich he is familiar, or a formal petition as in Il-linois.

From the viewpoint of the person detained, thereare corresponding virtues. He can be given immedi-ate medical attention and held in an environmentcontrolled by trained professionals rather than in ajail. Aside from the relatively short period thatelapses between arrest and medical diagnosis at atreatment or reception center, unauthorized in-fringement of liberty is infrequent or nonexistent.The patient's rights to review by legal process canbe satisfied once he receives the emergency medicalattention, and the statutes are careful to see thatthese rights are protected. While the possibilityof abuse is theoretically a real one, the real dangerseems no greater than that present when the policetake the elderly or the injured or others in need offirst aid to hospitals.20

For the case of abuse of the emergency detentionauthority, a civil action exists which it seems hasbeen overly effective in making the police and doc-tors cautious. The police, according to our observa-tion do not act unless there is real reason-from alay point of view-to do so. Where there is suchreason, the police will act-the people who havesummoned the police, the police themselves, andthe public expect them to do so. If the police donot have clear-cut authority to make an emer-gency detention on grounds of apparent mental ill-ness, or if the emergency detention procedure iscumbersome--as it was under the Illinois Codeduring the time of our study-the police fall backon the criminal arrest for disorderly conduct-hardly an advancement of civil liberty.

Plenary civil commitment. Emergency detention

20 A real safeguard against abuses is that the hospitalwill examine the patient before actually admiring him.Hospitals are crowded and it is frequent for persons tobe turned away not because they are not mentally illand in need of treatment but because they are not"emergencies."

on grounds of mental illness is important to crimi-nal law administration because it is a viable al-ternative to criminal arrest and initiation of theprosecutorial process. Civil commitment is im-portant to crininal law administration because it isan alternative to criminal prosecution in the caseof a person already under arrest and detention. 21

As such it is generally of less importance to thepolice than to the prosecutor. But because civilcommitment procedures determine whether thepeople brought to the hospital by the police will beadmitted c-r not, it is necessary to look briefly atthe civil commitment process. I

Commitment on the ground of mental illness is acivil (as opposed to criminal) procedure for thecompulsory custody and care (including thera-peutic measures) of a person found by a judicial oradministrative tribunal to be mentally ill and inneed of such care.22 Civil commitment is not

21 If the criminal charges are minor or the presenceof mental illness is clear, a prosecutor is often willingto dismiss the criminal charges and institute commit-ment proceedings instead. For example, a prosecutor inChicago dropped charges of armed robbery and ag-gravated kidnapping lodged against a woman whoforced two men to drive her to a supermarket to at-tempt a holdup there after having previously taken$111 from a credit company. The woman maintainedthat she had turned to crime to feed her five hungrychildren. The psychiatric clinic found the children werea figment of her imagination. Formal commitments tomental institutions of upwards of 1,600 persons a yearin the city of Chicago result from the filing of criminalcharges in this manner. Yet in Washington, D.C. forexample, such a practice is virtually unknown. Henceit becomes important in attempting to understandcriminal law processing of the mentally disabled toexamine the procedures for civil commitment. Whiledifferences in statutory procedures for emergency deten-tion and formal commitment are not a full explanationof the differences between Chicago and Washington,D.C., they are of practical significance as formal deter-minants of the actual practices followed in each juris-diction.

12 An excellent note in the YAix LAW JouDxAL de-fines "formal involuntary commitment" as "a final orderof commitment to a mental hospital for an indefiniteperiod of time"; Comment Analysis of Legal and Medi-cal Considerations in Commitment of the Mentally Ill,56 YALE L.J. 1178 (1947), 1190. Szasz defines commit-ment as ".... Compulsory or involuntary detention of aperson in an institution designated as a mental hospital.... Unlike imprisonment, commitment ostensiblyserves a medical-therapeutic, rather than a judicial-punitive, purpose"; SzAsz, LAW, LmERTY AND Psy-cuATRY (1963) 39. Lindman and McIntyre write:"Involuntary hospitalization describes the removal of aperson judged to be mentally ill from his normal sur-roundings to a hospital authorized to detain him"; op.cit. supra, 17. Curran speaks of "Commitment for anindefinite period" as indicating "that the hospitaliza-tion is obtained through state action and not throughindividual action, regardless of whether the person in-volved is passive or opposed to the state's action";

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necessarily "involuntary," (although it may be),in the sense that the patient resists or opposes thedecision to hospitalize him; it is compulsory in thesense that once the decision to hospitalize him isreached,2 13 the patient is under a legal obligation tocomply. All states have laws for the compulsoryhospitalization of the mentally ill. The civil com-mitment statutes of many states authorize a vari-ety of initiating steps and procedures--sometimesa bewildering number, and it is impossible, exceptat great length, to describe all the variants nor it isnecessary to do so for present purposes. Neverthe-less it is necessary to consider the nature of thepetition which initiates civil commitment to con-trast the documentation required with the informalcharacter of emergency detention.

The procedure for civil commitment is initiatedby a "petition," a written document under oathstating the facts upon which it is believed the per-

CuRAN, Hospitalization of the Mentally 111, 31 N. C.L.R. 274 (1953), 279, 280. The difficulties of adequatelydefining "commitment" are due to an attempt to statesubstantive and procedural elements at the same time;to the varieties of procedures by which hospitalizationis accomplished; and to the differing conditions ofcustody embraced by the term.

23 In practice, just as most persons charged with crimechoose to plead guilty instead of going to trial, mostpersons alleged to be mentally ill do not contest hos-pitalization. The care and custody of mentally ill per-sons may be on a basis less than 24-hour inpatient hos-pitalization; for example on an outpatient basis, onweekends, or only during the week. Commitment isoften discussed as being for an indefinite or indetermi-nate period, thus connoting that it is "without end."This is not an essential characteristic of commitmentand many "commitments" are for stated periods. Afinal order of commitment may never be made eventhrough a person is hospitalized involuntarily manytimes during his life. This is because alert physicians,lawyers, and judges are consciously trying to avoid thecivil disabilities such a final order may bring. In muchthe same way that a criminal court may sentence aperson to an institution for a stated period of time orfor an indefinite period or place him on probation undersupervision, so also a civil court ordering commitmentmay order alternatives to full-time hospitalization, andin some instances may be obliged to do so. For example,in Lake v. Cameron, 364 F.2d 657 (D.C. Cir: 1966), thecourt held that 24 hour hospitalization was a last re-sort to be allowed only when other alternatives hadfailed. The D.C. Court of Appeals has articulated a dif-ference between "harmless" and "dangerous" patients,reminiscent of the California statute; Ragsdale v.Overholser, 281 F.d2 943 (D.C. Cir: 1960), Millard v.Cameron, 373 F.2d 468 (D.C. Cir: 1966), Rouse v.Cameron, 373 F.2d 451 (D.C. Cir: 1966); Darnell v.Cameron, 348 F.2d 64 (D.C. Cir: 1965). Cf. Crawfordv. Brown, supra, note 6. The California statute allows''commitment" to the care and custody of the counselorin mental health if the court finds the person to be".... mentally disordered and bordering on mental ill-ness but not dangerously mentally ill"; Cal. Welfare &Inst'ns Code §5076 (1963).

son is mentally ill and the names of persons havingknowledge of the facts. A "petition" is the equiva-lent of the complaint in a civil action and the in-dictment or information in a criminal action inthat it initiates the lawsuit. The petition mustallege that the person is presently mentally ill asthat phrase is used in the applicable statute. Oneof the oddities of the Illinois statute, it will berecalled is that the term 'petition' is used to de-scribe the initiating document for both civil com-mitment and emergency detention. In some states"any reputable citizen" or "any person" may peti-tion; in others only specified persons such as rela-tives, friends, physicians, and health and peaceofficers. Typically, the petition must give the nameand address of the spouse of the alleged mentallyill person, or of close relatives who may be respon-sible for his "care, support and maintenance," sothat these interested parties can be notified of theproceedings and so the state department of mentalhealth will know where to look for reimbursement.In some jurisdictions the offiicial having custody ofthe alleged mentally ill person must also be named;in some, a copy of the petition must he sent to thesuperintendent of any hospital to which admissionis sought. Upon the filing of the petition with theappropriate court (and, if it is required, the medicalcertificate), notice of hearing is given the allegedmentally disturbed person. If he is not already incustody, an order for his detention may be issued-a step for which in most jurisdictions a medicalcertificate is an obligatory foundation. Typicallythe police bring the individual into custody. Medi-cal examination, a hearing, and a decision on hos-pitalization follow.

POLICE PROCEDURES FOR EMERGENCY SITUATIONS

In making decisions concerning persons who areor are thought to be mentally ill, the policeman'sperception is nearly identical with that of the or-dinary lay person of similar age and background.Generally, the training the police receive in han-dling mentally ill persons is limited to catalogingmajor psychological symptoms that mentally illpersons display and learning to handle violentlyabnormal people. Two major attitudes, somewhatin conflict, color police activity in handling sup-posed mentally ill persons: (1) that mentally illpersons are sick persons and should receive medicalattention; 24 and (2) that mentally ill persons are

24 See "Handling Abnormal People," Chicago PoliceDepartment Training Bulletin 11-S (1962): "Your job,

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dangerous and the sooner someone else takes cus-tody (and hence responsibility) the better.25 Policeperception of mental illness is shaped by theseattitudes with the result that mental illness, asperceived by the policeman, consists either of vio-lence or of highly abnormal behavior. It tends, inother words, to parallel quite closely the substan-tive requirements articulated in the common lawstandard of emergency detention.

The initial contact of the criminal law with thementally ill person is usually made by the police-man who is confronted daily with the behavior ofpersons who are or may be mentally ill. The police-man may ignore this behavior or deal with itinformally short of official action; handle it as acivil matter by attempting to provide some medicalor social help; or proceed according to the ordinaryprocesses of the criminal law. All three alternativeswere present in the following example whichoccurred in New York City.

Looking back on what had happened, theofficer, a young man with a sense of humor,wondered why he had gone to so much trouble.He had been standing on a comer observingpeople go about their usual activities, he re-called, when he noticed a young Negro whoappeared a bit drunk, very intently talking tohimself. When the man punctuated this con-versation by punching his fist through the win-dow of an empty automobile parked at thecurb, the officer approached and inquired thereason for his behavior. The man acted"strangely," and either could not or would notanswer, leading the officer to think he was "apsycho case." The officer led him to the hos-pital which was nearby and told this story tothe psychiatric resident who examined theman. In response to specific questions the mansaid he was drinking and out of work andadded that he had been hospitalized at thishospital recently for a period of two weeks; heseemed quite content to spend the night at thehospital, but the doctor said that since he wasonly drunk there was no basis for hospitaliza-tionl. However, the doctor would take his tern-

as a police officer, is to get the disturbed persons safelyto a hospital where successful ways of treating andcuring mental cases are available."

See ibid: "The quiet and unassuming behavior ofa mentally ill person is not an absolute guide to hisdegree of probable dangerousness. Atrocious crimeshave been committed by the mentally ill. On the whole,however, only a very small portion of the mentally illare a menace to others."

perature and would keep him, at least overnight, if he showed a temperature. Findingthat the patient did not have a temperature,the doctor informed the police officer that theman could not be admitted.

Regardless of what the man bad told thedoctor or what the doctor thought, he was"still crazy" in the officer's judgment, and theofficer passed on these sentiments to the deskofficer at the precinct when he called forinstructions. The officer at the precinct toldhim to use his own discretion. Reasoning thatalthough there was damage to the car, he didnot know to whom the car belonged and thatconsequently there would be no complainingwitness, the officer told the man he was free togo. After once blinking his eyes in mild disbe-lief, the man wasted no time in making his exitwhich evoked a good natured laugh from theofficer.

There are numerous situations where the police-man will ignore the behavior of persons who areapparently mentally ill or will not take any officialaction unless forced to do so when the behavior inquestion becomes threatening, violent, or criminal,or because a citizen makes a complaint. This par-ticular officer had no desire to handle what hap-pened as a criminal matter and called the precinctonly to protect himself. If the man had not brokenthe window, it would have been possible for theofficer to completely ignore the behavior.

Police frequently receive phone calls, sometimeson a regular basis, from persons who are under thedelusion that others are trying to harm them.When a serious crime such as murder which re-ceives publicity occurs, the police are besieged bypersons ready to confess. Many of these are knownto the police from past experience as harmless. Thestories of other persons are checked out, and theyare subsequently released. It is a common practicefor the police, in order to protect against false con-fessions, not to release certain items of evidence tothe press and in some cases to release false or am-biguous items. Although falsely confessing to acrime could constitute interference with the policeand obstruction of justice, criminal proceedings arenever instituted against these people and civil pro-ceedings are rare.

The police may be called by a family member orby some neighbor who has perceived a disturbance.It is often the case that the family member orneighbor has called the police not because he seri-

ARTHUR R. MATTHEWS, JR.

ously wants the person in question to be arrestedbut because he can no longer tolerate the sick per-son's behavior and is reaching for outside interven-tion. The police sometimes are able to mediatefamily and neighbor disputes and settle the prob-lem so that no official action is taken, or the familyor the neighbors decide to proceed with a civilcommitment on their own without further policeinvolvement. In these situations either there is nocriminal infraction, or no one is willing to sign acriminal complaint. Many police officers activelydiscourage persons from signing a disorderly con-duct complaint pointing out that the result is acriminal arrest record and a night spent in jail, bothof which the patient is likely to resent in the future.Furthermore, the police are reluctant to take theinitiative themselves in these cases, feeling that theresponsibility is with the family member, whoshould not be allowed to pass the buck by callingin the police. As a general rule, then, the police willnot take official action unless the family memberor neighbor agrees either to sign a criminal com-plaint or sign a petition for civil hospitalization, inwhich case the police will help to transport theperson to the hospital, if no other means of trans-portation is available.

Workable procedures: New York City and SanFrancisco. When the policeman decides on thenecessity for care, he initially apprehends theperson, brings the person to some place where caremay be had pending a decision whether or not tohospitalize him, and by providing information,helps the doctor to decide whether the person re-quires admission to a mental health facility.

It is at the hospital that most police problemsarise. No matter how well defined is the police-man's authority to detain a mentally ill person inan emergency, unless he can get the person ad-mitted, his efforts will have been futile. Typicallythe policeman will take no official action unlessthere are pressing reasons for doing so, but once alaw enforcement officer has decided to take theperson to a mental health facility he feels he has"assumed responsibility" by taking the person intohis custody. The policeman will stay with the caseand see it through-as did the officer in theexample-until there has been some final resolutionof the situation. A decision by a policeman to useemergency detention is influenced by a number ofpragmatic considerations in addition to the serious-ness of the offense and the person's potential forviolence. The policeman must be concerned with

whether there is room at the hospital, whether theorderly or the intern on duty at the hospital willaccept this person or not, and how much of histime alternative courses of action will consume.In addition to statutory authority to act at all, thepoliceman needs a procedure that is workable;one that will provide an authoritative medicalresolution of the situation following the initialapprehension and transporting the person to amental health facility. The following exampleillustrates the procedure for emergency admissionin New York City.

The policeman agreed with the store ownerthat stealing grapes in plain sight was odd es-pecially when the man then dared the owner tocall the police. The two had been talking onlya few minutes when the man in question re-turned to the store. The officer suggested thatthe hospital was where the man belonged, andthe store owner said he would not file anycriminal charges if the officer thought this wasbest. As the officer left, he told the store ownerthat he would let him know what happened.

When brought to the hospital, the patienttold the doctor that he did not say to thepoliceman that angels were going to kill himbecause he was the devil. Furthermore, thedoctor had no right to hold him; he would callhis lawyer and sue the city. He loudly andprofanely protested this violation of his civilrights and the unjust treatment he was receiv-ing. After his examination the doctor said thebest thing would be for him to be admitted tothe hospital, but the patient threatened thedoctor and refused to go. "One officer took holdof the patient from behind bringing him to thefloor while another officer and an attendanttook a firm grasp on his arms and legs; in thisfashion they carried him into the elevatorwhich would take him to the admitting ward.

Under the New York emergency admission pro-cedure, the decision of the physician on duty at theBellevue psychiatric admitting desk is sufficientlegal 6 authority to hospitalize the patient. Whenthe doctor on duty at the admitting desk admits orrefuses to admit the person, he assumes theresponsibility for that decision; the policemansimply tells the doctor the facts that have occurredup to the point of bringing the patient to the hospi-tal. The admission is based less on those facts than

26 New York Mental Hygiene Law §81 (1962).

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on the psychiatric examination that takes place atthe admitting desk. The point to be noticed aboutthis procedure is its simplicity from the police pointof view: No paperwork, no red tape, no petition,no application, no medical certificate, and nomandatory court appearances. The doctor takesover once the policeman gets his "problem" to thehospital. The New York City procedure has proveda workable alternative to criminal arrest.

Practice in San Francisco suggests that effectivepolice handling of the mentally disabled is morethan a matter of paper work. In California, since1939, as the statute quoted earlier indicates,emergency admission does not require a petition.Hospitalization of up to 72 hours is authorized onthe "application" of a police officer under section5050.3 of the Welfare and Institutions Code. Atthe end of 72 hours the patient is entitled to imme-diate release unless judicial commitment proceed-ings are initiated by filing a "petition" for courtcommitment. According to an official of the Cali-fornia department of mental hygiene: "Prior to1939, when a police officer apprehended an obvi-ously mentally ill person trying to kill himself orothers or one who was causing a serious disturb-ance, he took him to jail since there was no alterna-tive; the new procedure provided they be taken tothe hospital". In San Francisco, the Californiastatute has proven workable because the doctorsat the admitting desk there, like their counterpartsin New York City, take responsibility for the deci-sion to admit. A lieutenant on the San Franciscopolice department who served as an advisor onlegal matters explained the procedure to us:

The officer on the beat and the sergeant atthe station level have absolute discretionwhether to take to a hospital or to jail a personwho may have committed a crime but is alsomentally distracted. Police do not sign peti-tions for the commitment of mentally ill indi-viduals. We feel this is the responsibility of thedistrict attorney. A person obviously mentallyill but causing a disturbance would be takeninto custody on the authority of section 5050.3and taken to the hospital. No charges would befiled. We have been successful in getting thedoctors to decide who should be admitted.

If the police officer, instead, arrests the per-son, no information as to mental illness orsymptoms of mental illness is communicatedto the court; this is on the theory that if theindividual is sufficiently showing symptoms of

mental illness, a decision to take him to thehospital would have been made. If the doctorsthink the symptoms are not enough to warranthospitalizing him, at least for observation, wedo not think there would be enough to presentto a judge.

Red tape and paperwork. Admission to a mentalhealth facility on an emergency basis is not alwaysas uncomplicated as it might appear from theexamples in New York and San Francisco. TheNew York City procedure is in fact atypical. 27

Bellevue is a large teaching hospital staffed atnight by psychiatric residents who are medicalschool graduates, have spent one year training ingeneral medicine, and have had two years of psy-chiatric internship. They are, consequently, wellqualified to make the necessary judgment. Not allfacilities designated for emergency admissions arestaffed by people as competent or as experienced.In most cases the facility involved is either acounty or municipal general hospital with a psychi-atric wing. During daylight hours, when experi-enced doctors are available to make the decision,no serious problems seem to arise. However, atnight and on weekends the authority and conse-quently the responsibility for admissions is dele-gated sometimes to a medical resident, sometimesto an orderly, a nurse, or a clerk. The power ofemergency detention clearly authorizes initialapprehension by the police and police custodywhile an emergency situation exists, includingtransportation to some place where care may behad. But it is equally clear, both at common lawand from reading the modem statutory provisions,that the power of "emergency detention" whenexercised by the police is not sufficient authorityfor involuntary admission to a mental hospital-the point at which the police relinquish theirphysical control over the person. This issue ismooted in New York City and San Francisco be-cause the admitting facility can, and, in practicedoes, take full responsibility for the admission.Under the California and Illinois statutes however,the policeman is required to "apply for admission"and "petition for admission" respectively, the func-tional equivalent in criminal law of signing a com-plaint against the person. When a petition orwritten application is required, as it is in manyjurisdictions, whoever signs it (the police or mental

*7 The procedure is not even typical of New YorkState. Outside the City of New York different proce-dures apply.

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ARTHUR R. MATTHEWS, JR.

health official from the admitting institution)accepts the legal responsibility. The person effect-ing the admission must be able subsequently (as ina suit for false arrest or malicious prosecution) toestablish that the conditions in fact existed thatwould justify admission. From the point of view ofthe admitting institution, the simplest and safestprocedure for escaping this legal responsibility is topersuade somebody--anybody-to sign a formalpetition which initiates civil commitment. Thisshifts the legal responsibility to the petitioner andobviates the doctor's appearance in court. If arelative will sign a petition or if the patient himselfis capable and willing to complete a voluntaryadmission form, admission follows. The policeman,if handy, will do. But the police are generally notwilling to sign a petition for civil commitment-and for good reasons. In the absence of a petition(or a court order), the responsibility for acceptingthe patient is squarely placed on the admittinginstitution. Some institutions flatly refuse to admita person without a signed petition. If the personmaking the decision for the mental health facilityis inexperienced, or if he is accustomed only tolimited authority and is not comfortable makingthe decision to admit on an emergency basis, he isunlikely to be willing to assume the responsibility,making admission difficult. Typically, an impassedevelops at the mental health facility while thepoliceman and the orderly wait for a psychiatristto come.

In some areas admission is complicated by thefact that psychiatric beds in the county or munici-pal facility are scarce and only those in serious needof treatment will be accepted; some persons will berejected even though they may be quite disturbedand in need of treatment. Because police usuallyarrive at the mental health facility at night or earlyin the morning, they must frequently wait hoursbefore they obtain any sort of medical advice.Since interns rotate quite frequently, the policemenfind themselves dealing with different people everyweek. No consistent policy about admissionsemerges, and almost every case comes down to adecision on its individual facts. On the other handthe police are normally quite reluctant to takementally ill persons, even if violent, to police lock-ups. In some cases where the police could not effectadmission to the mental health facility, theytracked down family members and persuaded themto take the person home for the night instead ofhaving the police take him to jail. Then in the

morning the patient is brought to the same facilityand admitted without difficulty.

just how difficult admission may be when thepolice refuse to sign a petition, and the hospitalrefuses to admit without a petition, can be seenin the following example from Chicago.

A well-dressed man told the desk officer hewas mentally ill and asked to be taken to thehospital immediately explaining: "When I amgoing to be sick I can feel it coming on."

The officer preferred not to argue and saidhe would oblige. As another officer was closingthe door of the police van, the man jumpedupon him from inside the van, knocking bothofficers to the ground. They were unable torestrain the man who now seemed to have"superhuman strength," until two nearbypolicemen helped.

At the hospital the four officers waited forthe interne on call to be awakened by phone;the orderly on duty said he did not have au-thority to make an admission unless a "peti-tion" was signed. Meanwhile the patient be-came docile. When the interne did arrive heconcluded the man was not a fit person foremergency admission because he was notactually violent at the moment. The officersreacted with surprise and anger. One officersaid: "There we were, four police officers whowould usually be dressed very neatly, standingin front of him completely disheveled, dirty,cut, and bruised and here was another personwhom we claimed was mentally ill who wasalso disheveled, dirty, dusty, and bruised."The interne's behavior violated the officers'notions of common sense.

The police, who had witnessed the violencedecided they would have to take the man tothe police lockup. As they were about to leavethe man grabbed the interne by the throat andpulled his tie tightly around his neck. Only thequick work of the police officers saved the in-terne from serious injury. The interne was thenconvinced and admitted the man.

The police finally enjoyed the humor and poeticjustice of this situation, but the problems they findin admitting people to local mental health facilitiesare frequently much more irritating, with the resultthat they stop bringing such persons to mentalhealth facilities and take them instead to jail whereprocedures are available to hospitalize them-a

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psychiatric examination ordered by the criminalcourt. There were 89 such cases in one monthduring 1963 when we visited Chicago.

It is evident from talking to policemen that, inaddition to the reasons which the police explicitlygive for not signing petitions, there are other moti-vations present. Policemen are sometimes afraid ofmentally ill persons generally; fear of signing peti-tions appears to be closely connected with theirfear of violence and of reprisal. The policeman whoadvises a family member that a disorderly conductcomplaint will irritate the disturbed person, andpossibly result in reprisal, may also be expressinghis own fears. Police also feel out of their elementwhen defining people as mentally ill. While theyfeel their experience does equip them to spot a"criminal," they do not feel it equips them to spota "mental case," except where the person is obvi-ously disturbed. The ambivalence the police showin handling mentally ill persons is reinforced by thedifficulties they face in dealing with local mentalhealth facilities. The practical effect of difficulty insecuring admission to the mental health facility isthat the police begin to use other, more familiar,alternatives and take the prisoner to jail instead ofto the hospital, or in some cases, release him. Thisis not to imply that the police should decide whoshould be admitted; their complaint is that thedoctors will not decide and will not take the respon-sibility. The trip to the hospital consumes time thatcould be devoted to other police work and may tieup not only one but several officers, and policeequipment as well, especially if there is violence.On the other hand, since the only alternative to thehospital is the police lockup, there is pressure tohospitalize because of the trouble such persons maycause when placed behind bars, because policeofficers, like citizens generally, balk when obviouslysick people are denied medical care, and becausethe critical decision about hospitalization is merelybeing temporarily postponed.

IMPLICATIONS FOR POLICE POLICY

Police training. The job of dealing on a massscale with the mentally ill, however narrowly orbroadly one defines this class, is constantly left tothe police. The problem of inadequate medicalfacilities, inadequate public provision for the old,the destitute, the helpless, and countless othersocial problems receive concrete expression by acomplaint to the policeman on the beat. So it is inthe case of the mentally disabled, and so it is likely

to remain for some time. Police need education inthe principles of mental health, but the extent towhich one could increase police training for han-dling and recognizing the mentally ill is almostwithout limit. While some training in this area isessential for all police officers, we cannot, norshould we, attempt to make doctors or psychia-trists out of policemen. The experience statehospitals have had in training "attendants" to bemental health workers indicates that police as wellcan be trained in the basics of mental healthtechnique. Special squads for mental health prob-lems may be helpful in some larger departments 8

But there is no reason why all policemen should notknow exactly where to take mentally disabledpersons, and under what conditions and at whattimes people are likely to be admitted. TheNational Association for Mental Health booklet,"How to Recognize and Handle Abnormal People"is a start, but every city should supplement thiswith a catalog of the local medical facilities avail-able. Such a booklet, "Emergency Hospitalizationfor the Mentally Ill," used by the police in Cleve-land, Ohio, lists the name, address, and telephoneof the available community mental health facili-ties, together with the type of service available,any special conditions on the service, and the hourswhen these services are available. The police

2 See Rocx, HoSPITALIZATION AND DISCHARGE OFTHE MENTALLY ILL, 97-105, for a discussion of thespecial squad in Los Angeles. One of the many com-plications of this complicated problem is the differencein police practices within a single state. In Los Angeles,(not included in this study), Rock, ibid., 103-4, reports:

The willingness of the Los Angeles Hospital de-tail officers to act as commitment petitioners de-serves special attention since it represents adeparture from the police reluctance or refusalobserved elsewhere.... Later, if continued hos-pitalization seems necessary, the officer is willingonce again to supply the necessary act of executinga petition for commitment. He does not feel thathe is committing the person; the doctors of thecourt do that-he merely supplies a necessary for-mality. The police hospital detail-if its officerstake any note of the legal implications of petition-ing at all-is apparently content to continue torely on the medical judgment that the person needshospitalization....

In the Los Angeles arrangement the doctors pro-vide the medical judgment and the police through aspecialized unit supply the person willing to assumeresponsibility as a petitioner.Yet the San Francisco Police, (included in this study

but not in Rock's study) never sign commitment peti-tions and are reluctant to execute even the 72 houremergency admission "application." The Los Angelesexperience suggest, again, that the key problem is get-ting the person to a doctor who will assume responsi-bility for the judgment whether hospitalization is indi-cated.

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ARTHUR R. MATTHEWS, JR.

department of Winston-Salem, North Carolina,uses a similar booklet that gives detailed informa-tion about all social agencies in that area. Suchmanuals could easily be written with peculiar appli-cation to particular localities, except for very smallpolice forces where existence of these facilities is amatter of common knowledge among policeofficers.

29

Adequate community mental health facilities. Inour experience there is less problem with the policerecognizing persons who are mentally ill than indealing with persons everyone would agree arementally ill and in need of medical attention. Thereis little point to heightening police perception ofmental illness unless concomitant measures givepolicemen some realistic hope of being able to dis-pose of such cases other than by the traditionalmethod of criminal arrest. In many communitiesthe key problem is a lack of medical facilities;either there are no medical facilities at all, or theyare unwilling to take the kinds of cases the policebring in, or they are not open when business is atits peak, that is at night and on weekends. It is thelack of such facilities that accounts for the fact thatmentally ill persons are sometimes housed in localjails supervised by police departments where onlyinadequate facilities can be maintained despite thegood will of many policemen.

What the police need most is a workable proce-dure that allows them to take persons they reason-ably suspect to be dangerously mentally ill to someplace where expert evaluation of the policeman'slay judgment can be had with reasonable dispatch.From the police point of view where the proceduresare cumbersome, where they fail quickly to iden-tify the person in question as being mentally ill,where they fail to provide doctors willing to assumeresponsibility for the person's care, where in shortthe collective police experience is one of futility,the route of mental health care for the mentally illoffender is unlikely to be followed. This must, ofnecessity, remain the case until the public providescommunity mental health facilities consistent withthe recognition that mentally ill persons should behandled by civil rather than criminal process andprovides workable procedures to that end.

Legal authority for emergency detention and emer-gency admission. Despite the fact that most state

29 This assumption has been drawn into question bya 1968 American Bar Foundation study, "Rural Crimi-nal justice," in which 7 of 8 law enforcement officersinterviewed did not know of the existence of ongoinglocal community mental health centers; see fn. 31, infra.

laws appear to give policemen adequate legal pro-tection when apprehending persons they reason-ably suppose to be dangerously mentally ill and inneed of medical attention, some emergency deten-tion statutes are unnecessarily complicated andconfusing. Whether we should hold the policemento the standard of "probable cause" or the stand-ard of "good faith" in detaining the mentally illdepends on whether one wants to encourage thepolice to take mentally ill persons to mental hos-pitals. In the case of the genuine emergency whendoctors and judges are not available, the police,acting in good faith, should have clear statutoryauthorization to take persons thought mentally illand dangerous at the moment to local mentalhealth facilities or state hospitals for a preliminaryexamination without fear of civil liability. Manypolicemen say they fear the possibility of a civilsuit for damages. Insurance protection, if neces-sary, should be provided policemen. If, as wethink, such suits are seldom successful, coverageshould be available at a modest cost.

Some statutes, such as that in New York, aresubstantively defective. Hawaii, for example,recently copied the New York definition of personsmentally ill and "disorderly" that, as we saw, doesnot include the non-disorderly but dangerous men-tally ill person. It was, in fact, just such a gap thatled to the New York decision that the broadercommon law power survived enactment of theNew York emergency detention statutes. Butsubstantive coverage should not have to wait onappellate decisions. Emergency detention statutesshould be as broad as the common law powerA0

Our findings indicate that the problem is lesssubstantive than procedural. Moreover our obser-vations indicate that no emergency detention proce-dure will be effective unless there is also a workableemergency admission procedure. So far as we candiscover the difficulties of the police are not precip-itated by a failure of the emergency detentionpower but by the practical failure of the emergencyadmission procedures, a failure due to medicalunwillingness to accept the responsibility for whowill be admitted. This finding has been confirmedin a 1968 study of rural areas in Illinois that con-cluded as follows:

Emergency situations are usually not ban-ded by the emergency detention and admission procedures of Article VII of the Menta.

10 Cf. fn. 7, 19, and text, supra.

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Health Code which authorizes admission foras long as 24 hours upon presentation of anemergency petition without more. This is sodespite the fact that the 24 hour admission onpetition alone, first enacted in 1952, has under-gone several revisions in recent years designed,according to statements of those who draftedthe revisions, to informalize the procedure andencourage its use. The major reason for thisseems to be that the 24 hour emergency proce-dure requires the presence of hospital and ju-dicial personnel at mandatory court hearingsheld in the county in which the hospital islocated. Judges in counties in which hospitalsare located must hear cases from all the coun-ties in the zone served by the hospital. Thesejudges have pressured the hospitals to reducethe number of emergency admissions. Hospitaladministrators comply not only to preservegood relations with the judge but also becausethey too consider mandatory hearings at besta burden and often unnecessary. Who is to paythe cost of these hearings--the state, thecounty in which the hospital is located, or thecounty in which the patient resides-is also anissue of considerable importance.

Voluntary admissions are preferred to emer-gency admissions because they require lesspaper work and "red tape." On the operationallevel, this preference becomes a reluctance toadmit persons on an emergency basis. Whileother studies of urban areas have indicatedpolice are reluctant to execute emergency peti-tions when called upon to do so, this does notseem to be the case in the areas we studied.Hospital officials interviewed were unaware ofany such reluctance. Police and sheriffs saidthey have no objection to executing emergencypetitions. In fact, they do execute a few inpractice, but infrequently for several reasons:1. Executing an emergency petition is a futilegesture if the hospital will not accept an ad-mission; 2. Relatives or others are typicallyavailable for that purpose; 3. In one of thecounties studied, the states attorney signsthem instead. The hospital will refuse emer-gency admission under Article VII but grant"voluntary" admission if the police can "per-suade" the prospective patient to execute avoluntary application. Some police officerssecond-guess the hospital by having a friendlylocal doctor examine the psychiatric emer-

gency in the local jail and execute a physician'scertificate, in which event the hospital auto-matically admits the person.

Despite the hospitals' systematic avoidanceof Article VII procedures, difficulties from thelaw enforcement point of view are minimalsince nearly every police referral of a mentallyill person results in admission to the hospital.Police expressed neither reluctance aboutbringing disturbed persons to the hospital nordoubt about whether they are legally author-ized to do so. We have found no evidence thatobviously mentally ill persons are being crim-inally charged prior to referral to the state hos-pital. Moreover, the only time they spend inlocal jails is waiting to be examined by a localdoctor pending medical certification, a periodthat may be as short as an hour or as long asovernight."l

The police do not want-nor should they have-the authority or the responsibility for effectingadmission to the hospital; this is a medical respon-sibility, which is what the debate over signingpetitions is all about. The emergency detentionpower is sufficient for getting the person tothe hospital pending medical examination. Statelaw might take a cue from the policeman in ourfirst example and fasten responsibility for whathappens thereafter onto the medical institutionwhen the police present the person at the admittingdesk. Doctors should be as responsible for mistak-enly refusing a person admittance as they are formistakenly admitting a person.

Responsibility for who is admitted to a mentalhospital is not, need not, and should not, be a policeresponsibility. The law should require that thecritical decision-whether to admit the person-bemade by the doctor (without the formalities of apetition, an application, or a medical certificate).Appropriate procedural protections against unwar-ranted admission are inapposite in an emergency;they can wait until the next day. Experience hasshown that, when the law in its attempt to protectthe civil rights of its citizens has sought to imposeits procedural protections at the point of initialdecision, the emergency admission procedure willnot be efficacious. Such procedures protect all thecitizens rights save one-his right to prompt medi-cal attention.

3' BRAKEL, SOUTH AND MATTEws, Dri-mSoN FROmT im mIAL PxocEss iN m RumR Comnm-(American Bar Foundation: 1968) 70.

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