Document Type

Article

Publication Date

2025

Abstract

States are increasingly turning to assisted outpatient treatment (more accurately called preventive outpatient civil commitment, or POC) to ameliorate the mental health and homelessness crises. These laws authorize court-ordered community treatment for individuals with mental illnesses and histories of treatment noncompliance. The treatment aims to prevent psychiatric deterioration before it leads individuals to endanger themselves or others. Affected individuals pose no immediate danger, typically can make rational treatment decisions, and may reside in the community. These laws dramatically extend states’ means of social control and cannot be easily justified by traditional understandings of state police power or parens patriae commitment authority. Courts have subjected only one state’s preventive outpatient commitment law to constitutional scrutiny. Those decisions applied differing legal standards, reached conflicting conclusions about affected liberties, employed flawed reasoning, and turned upon statutory features absent from most states’ laws. Rigorous scholarly scrutiny of these laws has been minimal.

This Article examines the constitutionality of existing preventive outpatient commitment laws. It identifies the individual and state interests implicated by preventive outpatient commitment and assesses available enforcement measures, revealing that most attempts to remove courts’ inherent contempt power likely violate state law. It then analyzes involuntary treatment and civil commitment case law to construct a proper constitutional framework for scrutinizing preventive outpatient commitment laws. This Article applies the framework to all twenty-three current preventive outpatient commitment statutes. It concludes that only five states’ statutes include most or all of the substantive components necessary for involuntary outpatient commitment under states’ police- power or parens patriae authority. Effects on the balance of interests from removing courts’ enforcement power are also examined. In isolating substantive components most and least likely to survive constitutional scrutiny, this examination should guide courts’ review of these statutes, inform current debates about expanding or adopting preventive outpatient commitment, and invite reevaluation of questionably constitutional statutes.

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