The Maryland Department of Health (MDH) recently published draft regulations concerning when an individual can be involuntarily committed to a hospital.
After an outpouring of community support, MDH is revisiting its “Danger Standard,” under which a patient with mental illness must “present a danger to the life or safety of the individual or of others” (COMAR 10.21.01.04) before being subjected to an emergency psychiatric evaluation and involuntary hospital admission. In MDH’s proposed revision, an additional provision would be added to define “danger” to ensure a more uniform interpretation:
E. For an individual to meet the requirements as presenting a danger to the life or safety of the individual or others, the individual shall experience an incident that:
(1) Is recent and relevant to the danger which the individual may currently present;
(2) Arises as a result of the presence of a mental disorder; and
(3) Includes, but is not limited to, one of the following scenarios:
(a) The individual has threatened or attempted suicide, or has behaved in a manner that indicates an intent to harm self, or has inflicted or attempted to inflict bodily harm on self or another;
(b) The individual, by threat or action, has placed others in reasonable fear of physical harm; or
(c) The individual has behaved in a manner that indicates they are unable, without supervision and the assistance of others, to meet their need for nourishment, medical care, shelter, or self-protection and safety such as to create a substantial risk for bodily harm, serious illness, or death.
According to a Baltimore Sun opinion piece published in December of 2021, advocates support the added provision because:
[the] lack of a clear definition for danger results in inconsistent interpretations across the state, with imminent suicidal or homicidal behavior often being required by physicians and judges charged with making these commitment decisions. Some people in crisis get treatment, but many others get the door slammed in their face.
The proposed regulatory change comes after similar language was introduced before the Maryland General Assembly in 2022, specifically House Bill 1160. Testimony in support of HB 1160 detailed several stories concerning individuals suffering from psychosis stemming from schizophrenia causing great harm to themselves and their environments. However, several mental health advocacy organizations, including the Mental Health Association of Maryland and Behavioral Health System Baltimore, opposed the bill because it would overly broaden the Danger Standard to include individuals who do not need intervention at present.
According to an action alert sent by the Schizophrenia & Psychosis Action Alliance, MDH’s proposed regulation is flawed in the opposite respect – it does not consider future danger. The Alliance suggests the following revisions:
- Include an explicit statement that the danger need NOT be imminent.While current law does not require “imminent” danger, it has frequently been interpreted that way in practice. Police, physicians and judges often unnecessarily require imminent suicidal or homicidal behavior when making emergency petition or involuntary hospitalization decisions. It is critical that the danger definition explicitly state that danger need not be imminent.
- Clarify that “psychiatric care” is a form of medical care and “significant psychiatric deterioration” is a form of harm to self. Psychiatric deterioration is included in inpatient civil commitment criteria in half of all states as a form of harm to self. Research shows that the longer an individual experiences untreated psychosis, the more brain damage occurs, and the less likely the person is to make a full recovery.
- Add language specifying that an individual’s personal, medical and psychiatric history, if available, must be considered. Currently, police, medical professionals and judges are often under the impression that they are not permitted to consider an individual’s history in evaluating their current dangerousness. Clarification is needed that consideration of past history, if available, is not only permitted, but important to make an informed decision.
The comment period for MDH’s proposed regulation ended on September 12th. MDH now has the discretion to move forward with its language as drafted or incorporate suggested revisions received during its comment period. Its decision will have significant consequences for county health and human services, law enforcement, and correctional facilities, all of which are charged with interpreting the Danger Standard.