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A number of states have adopted a preference for voluntary hospitalization over involuntary civil commitment for adults with severe mental illness who require inpatient treatment. Frequently, however, the very disabilities that call for inpatient treatment also disrupt an individual patient’s capacity to participate fully in the decision-making process by which hospital admission is elected. When impaired patients have a court-appointed guardian, difficult questions can arise as to the power of the guardian to consent to the ward’s admission for inpatient psychiatric treatment. In some states, the guardian may not consent to the ward’s admission. In others, the guardian’s authority to arrange for voluntary inpatient care may depend on his or her obtaining specific court authorization. Additional requirements apply in other states, often created by the interplay between the laws regulating mental hospital admission and those governing the powers and responsibilities of guardians. Involuntary commitment statutes in virtually every state require that the individual must be dangerous to himself or herself or others. Voluntary hospitalization, by contrast, generally is based on the patient’s need for and amenability to treatment. If a guardian is not permitted to consent to voluntary admission, the more restrictive involuntary commitment standard, with its dangerousness criterion in particular, may make it difficult or impossible to arrange for inpatient care for some patients with severe mental disabilities who do not present an imminent risk of harm, but who would benefit from such treatment. Patients who are assisted by guardians should be able to gain access to inpatient psychiatric treatment without running the gauntlet of involuntary civil commitment, if the substantive standards and procedural requirements put in place by state law can be made adequate to insure that third-party decision-makers are acting with respect for the values held by these patients and, to the extent possible, are seeking to serve their best interests. This Article provides a brief history of the law in this area, explores the role that informed consent plays in voluntary hospitalizations, provides an analysis of the interests in tension, and offers a framework for an effective statutory approach to the area.

Publication Citation

60 Villanova Law Review 1 (2015)


Health Law and Policy