Law, medicine, and civil commitments

Law and psychiatry have long served as classic cases for inter-professional conflict, as the two groups vied for jurisdiction over people with mental illness (Abbott Reference Abbott1988; Goldstein Reference Goldstein1987). Hoppe (Reference Hoppe2014:146) highlights why this clash is unsurprising, given the “divergent epistemic assumptions that undergird law and medicine: whereas the law is presumed to assign culpability, promote justice, and impose due punishment, medicine is presumed to remain neutral, promote health, and offer treatment.” Indeed, when new laws and civil rights litigation in the USA in the 1960s and 1970s expanded oversight of civil commitments, which had previously been exercised almost entirely at physicians’ discretion, commentators assumed it would spark intensified conflict (Appelbaum Reference Appelbaum1994; Morse Reference Morse1982). In practice, the impact of these reforms was muted. Lawyers largely deferred to psychiatrists’ evaluations of patients’ need for care and control (Hiday Reference Hiday1977; Lewis et al. Reference Lewis, Goetz, Schoenfield, Gordon and Griffin1984; Monahan Reference Monahan1977; Warren Reference Warren1977). As Heimer (Reference Heimer1999) argues in her study of neo-natal intensive care units, even lawyers who know the law well are likely to be deferential if they are unfamiliar with the medical context to which it is applied.

Heimer (Reference Heimer2025)’s more recent work on HIV clinics, however, demonstrates the deepening imbrication of the medical and legal fields (see, also, Chiarello and Morrill Reference Chiarello, Morrill, Jacob and Kirkland2020; Horowitz Reference Horowitz2012; Kelly et al. Reference Kelly, Harper, Khanna, Khanna, Harper and Kelly2015; Morse Reference Morse2019). One such development with the potential to impinge on medical professionals and generate conflict is new mandates around patients’ rights to information or to guide their own treatment (Harper Reference Harper, Khanna, Harper and Kelly2015; Levitsky Reference Levitsky2013; McGowan et al. Reference McGowan, Lee, Meneses, Perkins and Youdelman2016). However, in a study of the implementation of non-discrimination requirements from the 2010 Affordable Care Act, Kirkland and Hyman (Reference Kirkland and Hyman2021) find that patient claims were reframed by grievance management professionals as concerned with the quality of care rather than rights violations. Their findings speak to how legal-medical collaboration can be maintained via “brokering” professionals that help avoid clashes between constructions of claimants as patients and as legal actors (Castellano Reference Castellano2011; Kellogg Reference Kellogg2014).

While this research is consistent with a broader finding that compliance with new legal mandates tends to be symbolic and superficial (Edelman Reference Edelman1992; Frank and Kelly Reference Frank and Kelly2007), Heimer and Gazley (Reference Heimer and Gazley2012) argue that law and medicine can sometimes “transcend regulatory ritualism.” Through repeated interactions, clinicians move beyond superficial performances of adherence with rules toward co-producing “deep compliance” alongside regulators. This focus on shared performance calls attention to the micro-interactions in which inter-professional collaboration or conflict is produced. However, their research does not address how patients themselves contribute to or disrupt these performances.

There is thus a gap in our understanding of inter-professional dynamics in settings like courts, where legal and medical professionals are formally adversaries and patient grievances have not been shunted into less adversarial procedures. While some scholars have examined how medical expertise is assessed in hearings (Hlavka and Mulla Reference Hlavka, Mulla, Jacob and Kirkland2020; Kirkland Reference Kirkland2016; Lynch Reference Lynch and Jasanoff2004; Vogler Reference Vogler2021), the focus has been on the evaluation of expert categories (like “vaccine harm” or “sexuality”) rather than of patients per se. As such, as Clair (Reference Clair2020) argues is the case for criminal defendants, patients – frequently, a crucial third-party in medical-legal interactions – are “under-theorized actors.”

Civil commitment hearings represent a strategic site for addressing this lacuna. Psychiatrists do not just have to act in general conformity with legal regulations; they require a specific judicial determination to extend commitments in individual cases. Unlike collaborative drug courts for individuals deferred from criminal prosecution, hearings are intended to be adversarial (Perlin Reference Perlin1992; Wolf Reference Wolf1992), and patients are presumed to be actively exercising their rights to challenge hospitalization. While recent research has identified how police transport unhoused and disruptive individuals to emergency rooms on short-term detentions for psychiatric evaluation (Herring Reference Herring2019; Pifer Reference Pifer2023; Seim Reference Seim2019), the studies of what happens subsequently are now decades old (Decker Reference Decker1987; Holstein Reference Holstein1993; Warren Reference Warren1982; cf. Player Reference Player2015). Despite commitment hearings’ potential as a site for generating broader knowledge about the impact of intensified legal regulation and expanded patients’ rights, we know little about how patients shape the interaction of law and medicine in these settings.

Control via subjectification and serviceability

In contrast to the broader literature on the interaction of law and medicine, the construction of medical-legal subjects has been a central topic in research on the hybridization of penal and welfare institutions in social control (Brydolf-Horwitz and Beckett Reference Brydolf-Horwitz, Beckett and Pettinicchio2021; Lara-Millán and Van Cleve Reference Lara-Millán and Van Cleve2017; Miller Reference Miller2014). Scholars often suggest that, in many cases, medical and legal professionals have embraced this shared project. Criminal justice actors like probation officers, for example, increasingly insist they are offering “care” (Lara-Millán and Van Cleve Reference Lara-Millán and Van Cleve2017; Phelps and Ruhland Reference Phelps and Ruhland2022). Critics of involuntary mental health interventions argue clinicians wield them as a form of incarceration or punishment (Liat et al. Reference Liat, Chapman and Carey2014; Schenwar and Law Reference Schenwar and Law2020).

Such collaboration reflects a growing, shared imperative across medical, legal, and welfare services: “subjectification,” or the expectation that interventions enhance agency and steer it towards self-control (Kaye Reference Kaye2013; Livne Reference Livne2019). Today, prisoner reentry programs, drug courts, or welfare-to-work schemes all claim to be producing “self-regulating” or “self-governing” subjects, not passive recipients (Dubois Reference Dubois2003; Gowan and Whetstone Reference Gowan and Whetstone2012; Soss et al. Reference Soss, Fording and Schram2011; McKim Reference McKim2008; Miller Reference Miller2014). Yet, these same studies recognize a frequent gap between the “idealized…subjects” medical-legal interventions claim to produce and the frequency with which these efforts “in practice fail” (Phelps and Ruhland Reference Phelps and Ruhland2022:812). The specific requirements for how professionals maintain collaboration in the face of this apparent failure in subjectification is, however, an understudied gap.

In order to better theorize the kinds of subjects that allow for continued medical-legal intervention, I draw on Goffman’s conception of serviceability. As he argued, “total institutions” like asylums did “not really look for cultural victory” (Goffman Reference Goffman1961:13), and in fact tolerated a range of patient subversions of institutional rules. Rather, asylums sought only to make patients into serviceable objects who would adopt “quiet, obedient behavior” in specific moments (such as in front of staff or in the medication line) in order to “reduce the administrator’s management problem” (Goffman Reference Goffman1961:383). Goffman’s focus on serviceability shifts analytic attention from the official aims of social control institutions to the temporary states that meet the situational requirements for their continued functioning.

As the social control literature clearly shows, the stated purposes of psychiatric interventions have shifted dramatically since Goffman’s day. New legal rights against involuntary treatment, for example, contributed to deinstitutionalization, which sought to take inactive asylum residents and transform them into “self-reliant, autonomous citizens” in the community (Bagnall and Eyal Reference Bagnall, Eyal and Perry2016:42). In Goffman’s era, a psychiatric diagnosis simultaneously “qualif[ied] him [the patient] as an object of service” even as it “disqualif[ied] the patient for any participation in the service relation” (Goffman Reference Goffman1961:364). The concept of serviceable subjects captures the more complex dynamic of contemporary subjectification: treating individuals as rights-bearing subjects who could be participants in the service relation while targeting them for ongoing constraint, punishment, or supervision.

Serviceability thus links to a broader strain in social-legal scholarship on the requirements of both institutions and professionals in the performance of social control work. As Goffman (Reference Goffman1961:361) pointed out, “what is being serviced” is often “the institution” itself. The smooth functioning of medical, welfare, and legal institutions requires that beneficiaries, litigants, and defendants do not exercise all their theoretically available rights, such as insisting on going to trial in every deportation case or demanding an additional review of every denied welfare claim (Clair Reference Clair2020; Feeley Reference Feeley1979; Kohler-Hausmann Reference Kohler-Hausmann2018). Yet judges, lawyers, and doctors have additional focal concerns beyond efficient processing, such as public safety, civil rights, or medical care (Heimer Reference Heimer1999; McPherson and Sauder Reference McPherson and Sauder2013; Ulmer Reference Ulmer2019). Dealing with an overall caseload, then, requires both a degree of collaboration – in civil commitments, for example, judges require psychiatric testimony to make a ruling, while psychiatrists need judicial authorization to continue treatment – and containing conflict.

Repertoires, capacity, and constructions of serviceability

This framework suggests that what kind of subjects are serviceable to law and medicine will depend less on broad social expectations around “self-governance” than on meeting more situational requirements. While the existing literature has emphasized behavioral “compliance” (either with treatment or program strictures) as a recurring and central expectation (Castellano Reference Castellano2011; Conrad Reference Conrad1985; Halushka Reference Halushka2017; Phelps and Ruhland Reference Phelps and Ruhland2022), a focus on the U.S. and lack of comparative analysis means we know little about alternative forms of serviceability. In this section, I theorize how the intersection of legal repertoires and control capacity defines what subjects are serviceable in different social control settings.

Rather than imagining national legal systems as providing a rigid set of rules, scholars increasingly focus on the distinctive repertoires available in specific geographic contexts and legal domains (Kirkland and Hyman Reference Kirkland and Hyman2021; Lichtenstein Reference Lichtenstein2022; Saguy Reference Saguy2003; Winter and Clair Reference Winter and Clair2023). These toolkits consist of a flexible set of practices, malleable standards, and conceptions of professional roles that can be used to evaluate, argue, and decide on specific cases. Legal repertoires emphasize how the official purpose and practical function of procedures can vary. A patient’s attorney using their available tools to argue for release is fulfilling their formal mandate, but also rendering patients serviceable for hospitalization by making medical constraint legally adherent.

Previous research has not focused on how distinctive repertoires afford particular strategies for evaluating expert testimony, although the existing comparative literature provides some guidance. Under American “adversarial legalism,” lawyers can subject experts to direct questioning, while under French “bureaucratic legalism,” judges are expected to conduct investigations of written records (Burke and Barnes Reference Burke and Barnes2017; Dao Reference Dao2023; Kagan Reference Kagan2003). These differences create variation in the visibility of serviceability: whether it can be assessed in courtroom observations or is based on expert judgments formed outside of it.

While legal repertoires imply both elasticity and constraint in the performance of legal work, the nature of those constraints has been less explicitly articulated. In this paper, I argue that repertoires’ use is conditioned by how, through repeated interaction, legal actors assess medical systems’ actual ability to coerce, monitor, and contain patients. As Heimer and Staffen (Reference Heimer and Staffen1995) show in their study of recalcitrant parents in a pediatric hospital, what is labeled as problematic behavior depends both on clinicians’ definitions of deviance and the “organizational capacity to manage it.” Other research has shown medical professionals’ variable control capacity, ranging from scarce secure psychiatric beds in jail to the ability of pharmacists to refer customers requesting opioids to law enforcement (Chiarello Reference Chiarello2015; Lara-Millán Reference Lara-Millán2021). Control capacity also includes doctors’ knowledge of their patients, information which is necessary for legal decision-making but which physicians can deploy strategically in the courtroom (Decker Reference Decker1987; Heimer Reference Heimer1999; Kelly et al. Reference Kelly, Harper, Khanna, Khanna, Harper and Kelly2015).

Focusing on the professional capacity for control helps us further specify civil commitments’ distinctiveness as a hybrid intervention. Court-ordered rehabilitation programs, which nest therapy within the criminal justice system, can offer intensive disciplining over an extended period of time (Gowan and Whetstone Reference Gowan and Whetstone2012; McKim Reference McKim2008). Moreover, they are able to “funnel” individuals back to incarceration in the event they are deemed unserviceable for further subjectification (McCorkel Reference McCorkel2013; Whetstone and Gowan Reference Whetstone and Gowan2017). Research on mental health systems, on the other hand, has emphasized their incapacity to ensure ongoing surveillance after hospitalizations, which are typically very short (Gong Reference Gong2019; Rhodes Reference Rhodes1991). This suggests that the ultimate targets of subjectifying interventions could range from clients’ superficial behaviors (Halushka Reference Halushka2017; Winter and Clair Reference Winter and Clair2023) to their deeper motivations or identity (Livne Reference Livne2019; McKim Reference McKim2008; Miller Reference Miller2014).

As scholars of other resource-limited legal settings (like administrative or misdemeanor hearings) have emphasized, when medical-legal actors lack the capacity to control patients after adjudication, they often attempt to do so through the process itself (Carlson Reference Carlson2017; Christin Reference Christin2008; Feeley Reference Feeley1979; Kohler-Hausmann Reference Kohler-Hausmann2018). This paper extends claims that the convergence of resource limitations and legal mandates is key to understanding the shape of hybrid interventions (Kohler-Hausmann Reference Kohler-Hausmann2018; Lara-Millán Reference Lara-Millán2021) by identifying differences in the kinds of subjects who are serviceable given these constraints. I do so in the context of civil commitments, which offer a distinctive case where medical-legal collaboration must be achieved within a formally adversarial process that considers both legal criteria and medical expertise.

Paris: expanding rights and intensifying demands

France’s 1838 “Law of Madmen” created an enduring two-track model of involuntary hospitalization (Henckes Reference Henckes2010). The first track was based on the state’s parens patriae (obligation to help vulnerable citizens) and allows hospitalization for “mental troubles” which “render…consent…impossible” and “require immediate care under constant surveillance.” In addition to these criteria being met, a demand for hospitalization must be accompanied by a request from a third party (like a family member) or a finding that the person is in “imminent peril” (Code de Santé Publique. Art L.3212-1). A second modality, Psychiatric Care at the Demand of a Representative of the State (Soins psychiatriques sur décision du représentant de l’État, or SPDRE), evokes the state’s police power. It allows the prefecture, the central state’s office in each sub-national department, to request the hospitalization of persons whose “mental troubles necessitate care” and who “compromise the security of persons or seriously infringe on public order” (Code de Santé Publique. Art. L.3213-1) (Table 1).

Table 1.

Legal Criteria and Procedures

° Can be met by a finding of an inability to provide for food, clothing, and shelter (Boggs v. New York City Health & Hospital Corporation, 1987).

While French law has always allowed patients to request to see a judge to contest their hospitalization, patients were rarely provided with counsel or informed of this right, so they almost never exercised it (Legohérel Reference Legohérel2014). By the end of the 20th century, this limited role for judges made France an exception to European and international norms (Niveau and Materi Reference Niveau and Materi2007). It also meant psychiatric care was an outlier within a broader national policy of “health democracy,” which prioritized patient consent and choice (Bouquet and Jaeger Reference Bouquet and Jaeger2017; Ward et al. Reference Ward, Cafiero, Fretigny, Colgrove and Seror2019).

In 2010, though, the Constitutional Court ruled that “protecting the health of the mentally ill” and “preventing violations of public order” had to be balanced with “protection of the rights” of individual patients (Conseil constitutionnel Reference Conseil constitutionnel.2010). By 2013, this mandate for “judiciarization” had been formalized as requiring that all patients have a hearing after 12 days, at which they were guaranteed counsel (Robiliard and Jacquat Reference Robiliard and Jacquat2017). The court gave judges authority over whether patients would remain in the hospital, but not over involuntary medication (as in New York). While French scholars have debated the legal implications of this decision (Marques et al. Reference Marques, Eyraud and Velpry2015; Panfili Reference Panfili2016; Péchillon Reference Péchillon2012), there has been little published research on how this decision changed how the legal repertoire is deployed in practice.

These legal transformations overlapped with significant shifts in both the expectations of and capacity for control by the psychiatric system. In the mid-20th century, involuntary hospitalization fell toward disuse: by 1985, only 10% of new admissions were involuntary (Figure 1). This disuse reflected how France’s public psychiatric system, which assigns an integrated inpatient and outpatient team to each secteur of around 70,000 people, facilitated intensive surveillance and treatment without relying on legal force (Interview, Psychiatric Professional Organization, 7/2016). However, involuntary admissions began to rise in the 1990s as psychiatry faced an increasingly isolated and vulnerable patient population and resources for outpatient and inpatient care diminished (Eyraud and Moreau Reference Eyraud and Moreau2013).

Figure 1.

Proportion of Psychiatric Patients Placed Involuntarily (France).

Data compiled from reports of Commissions Départementales de Soins Psychiatriques.

Meanwhile, the central state pressured psychiatry to play a greater role in addressing delinquency, crime, and Islamic radicalization (Velpry and Eyraud Reference Velpry and Eyraud2014). Clinicians expressed concern that some SPDREs, in particular, were “abusive, such as when the municipality uses it as a solution to someone who is disruptive” in the street or public housing (Interview, Psychiatrist, 8/2016). Courts thus faced a dual challenge: rendering psychiatric patients serviceable within new legal norms, and processing cases of peoples whose legal or social problems were, in the eyes of some clinicians, not serviceable for medical care.

New York: outside pressures and reduced capacity

New York State was long similar to France in the substantial discretion it gave psychiatrists in deciding on asylum admissions, with limited judicial oversight (Dwyer Reference Dwyer1988:88). In the early 1960s, a Special Committee to Study Commitment Procedures (1962) formed by the state bar argued that these procedures did “not meet minimum constitutional requirements.” The investigation inspired a 1964 reform that ended indefinite commitments and created a specialized group of lawyers, the Mental Health Information Service (later renamed Mental Hygiene Legal Services) (Mental Hygiene Law Art.47). MHLS lawyers meet with patients shortly after admission and can request a hearing at a patient’s demand (Table 1). Around 20% of hospitalizations ultimately lead to a trial, usually after about 2 weeks (Shea Reference Shea2012).

The reform maintained “need for treatment” criteria similar to those in France, allowing commitments when hospital care is “essential to [a] person’s welfare” and whose “judgment is so impaired that he [sic] is unable to understand the need for such care” (Mental Hygiene Law. Art.9.01). However, in 1983, courts added the requirement that a person “pose a substantial threat of physical harm” (Matter of Harry M., 1983). In Rivers v. Katz (1986), an appeals court established that psychiatrists needed a separate court order finding a lack of “capacity” in order to involuntarily medicate a hospitalized person. In 1999, the legislature created a new mechanism, Assisted Outpatient Treatment (AOT), to allow courts to order treatment in the community for people who had been hospitalized multiple times or committed an act of violence while treatment non-compliant (Player Reference Player2015).

Jurists’ use of this changed toolkit for both challenging and extending involuntary treatment is shaped by broader shifts in the system’s control capacity. In the 1980s, fiscal pressures led to significant downsizing of New York’s enormous asylum system (Weddle Reference Weddle1998). New York City now has two-thirds as many psychiatric beds per capita as Paris. The public outpatient system serves 2.25% of adults, versus 3.8% in Paris, drawing on less than half the number of psychiatrists relative to the population. (These data are derived from Office of Mental Health (2016) and Reyes and Lejoyeux (Reference Reyes and Lejoyeux2014); see Table 2 for a summary). Perhaps more importantly, outpatient clinics and hospitals are organizationally separate, meaning that patients are often discharged with little follow up (Interview, Outpatient Clinician, 11/2016).

Table 2.

Control Capacity in Paris and New York

Note: Statistics are given for the year closest to field research (2016-17) available.

Sources: (Department of Health and Mental Hygiene 2016; Office of Mental Health 2016; Reyes and Lejoyeux Reference Reyes and Lejoyeux2014; Atlas Santé Mentale).

* Estimate based on interviews and available data on all (voluntary and involuntary combined) admissions.

Nonetheless, this reduced control capacity in New York is increasingly solicited. In a 2018 national survey, over half of psychiatric inpatients were held involuntarily (Figure 2), a figure that rose to 89% for public facilities (SAMHSA 2019:29). Civil commitments are frequently used to remove mentally ill people from jail or as an alternative to competency restoration for misdemeanor defendants found unfit to stand trial (Interview, Office of Mental Health, 1/2017). Multiple mayoral administrations have pushed police to bring more unhoused persons to hospitals for commitment (Mathieu Reference Mathieu1993; Newman and Fitzsimmons Reference Newman and Fitzsimmons2022).

Figure 2.

Inpatients by Legal Status, 1980 and 2018 (U.S.).

Data drawn from National Institute of Mental Health (1985) and Substance Abuse and Mental Health Services Administration (2019). No time-series data comparable to France are available.

While statewide data are unavailable, estimates suggest that New York City may actually have a higher rate of involuntary hospitalizations than Paris, albeit with a shorter length of stay (a median of 14 days, rather than 31) (Atlas Santé Mentale n.d.; Department of Health and Mental Hygiene 2016).

Paris: deference to medicine and procedural rights

French parliamentary directives for implementing hospitalization hearings emphasized that they should be “contradictory debates” (Lefrand and Blisko Reference Lefrand and Blisko2012:12). That meant that lawyers and judges should not just draw on the repertoire of administrative law to evaluate the bureaucratic formalities of a hospitalization, but also consider its underlying justification.

However, patients’ lawyers had limited tools to challenge whether patients met criteria like “requiring immediate care under constant surveillance” (Code de Santé Publique. Art. L.3213-1). Beyond the medical certificates filed by psychiatrists (who did not attend the hearings), the only information about patients’ mental states came from the patients themselves. In one-quarter of the cases in my dataset, psychiatrists declared their patients unfit to attend. At times, they offered compelling written legal justification: “risk of fleeing and placement in danger; currently in an isolation chamber and under mechanical restraints” (Fieldnotes, Courtroom A, 5/2017). In others, though, they asserted the primacy of a patient identity over a legal one: “the patient is able to attend, but this would imply excess stimulation that would disturb the therapeutic improvements that are taking place” (Fieldnotes, Courtroom A, 5/2017). Rather than delivering cursory oral judgments, as in New York, Parisian judges wrote out their conclusions, which could be reviewed on appeal. With no other information, they often copied medical certificates directly into them. Here, we see an interaction between capacity and repertoires: psychiatrists’ control over information placed limits on the extent law could question their medical justifications.

In practice, lawyers’ best strategy was instead to identify one of hundreds of possible administrative errors, such as whether patients signed certain pieces of paper presented at particular times (Fieldnotes, Legal Training, 5/2017). Lawyers, drawing on the civil law repertoire of bureaucratic legalism (Francesca and Kelemen Reference Francesca, Kelemen, Burke and Barnes2017), evoked such arguments frequently (Table 3). But not all lawyers were willing to act on the errors they identified. One elderly woman had been hospitalized for depression under an emergency procedure for people in “imminent peril.” Her psychiatrist wrote she now had “psychotic features” and worsening anorexia. The woman walked in slowly, accompanied by a nurse. She struggled to explain her situation but insisted, “Nothing helps, and I didn’t choose to be here.” When the judge turned to the lawyer, the attorney stated, “I wrote out some conclusions” – identifying a missing notification of the woman’s rights in her dossier – but added, “I’m not going to give them to you [the judge] because I think it’s important she remains here, given her state.” The lawyer told me she was relieved when the judge authorized continued hospitalization because “I want to be able to sleep tonight” (Fieldnotes, Courtroom A, 5/2017).

Table 3.

Arguments for Release or Against Involuntary Medication

*Analysis based on all hearings in which the attorneys made an argument or statement in favor of release of patient. N = 151 for New York, 47 for Paris.

Vigorous advocacy was more common in a subset of cases where representation was assured by lawyers affiliated with specialized legal organizations, rather than non-specialized attorneys assigned by the bar for the day. I observed an appeal hearing for an unhoused man with schizophrenia (who was not in attendance). He had come to the hospital voluntarily, but was detained when he tried to leave. A judge subsequently ruled to release him because there was no date on the notification informing him of this status change. The hospital had appealed:

Here, jurists successfully asserted a strict interpretation of procedural rights, but not even the patient’s attorney challenged the characterization of the man as needing hospitalization. The ruling would have no immediate impact on his treatment, since he had already switched to a voluntary status.

French appellate courts have ultimately determined that “in no case can the judge substitute for the psychiatrist in the medical evaluation of the psychic troubles of the patient” (Cour de cassation, 2017). But my observations suggest that jurists were reluctant to substitute their own judgments, even before the appellate ruling directing them not to do so. One lawyer clarified his view of the appropriate use of his legal repertoire: “a serious defense does not stop the person from being cared for…It’s just that a deprivation of liberty should be procedurally correct” (Interview, 7/2016). This quote highlights how even a vigorous use of the legal repertoire can validate continued hospitalization. This conception of rights was serviceable, not ideal, insofar as treatment complied with administrative requirements but overrode substantive rights on the basis of psychiatric determinations.

New York: adversarial challenges to psychiatric expertise

In New York, the legal legitimacy of psychiatric hospitalization was established through the rituals of criminal law. Hearings began with sworn testimony from a psychiatrist, followed by cross-examination, and then passed to testimony from the patient, with subsequent closing arguments. While in my dataset Parisian attorneys advocated for release in only one-third of hearings, MHLS attorneys in New York almost always supported their clients’ challenges to their hospitalizations or medication. Their repertoire highlighted patients’ agency, even when its exercise did not appear to be in their best interest. For example, in Paris, psychiatrists typically declared their patients “unable” to attend hearings; in contrast, in New York lawyers emphasized that their clients had “refused” to come.

Attorneys’ adversarial approach reflected a vision of patients’ rights that centered on using legal tools to challenge psychiatric expertise. Consider the case of a young man brought to the ER by his family:

When the psychiatrist highlighted a threat of suicide documented in the medical record, the attorney objected that it was inadmissible hearsay. In a fragmented system where doctors spent very little time with patients, such hearsay was essential to forming expert evaluations (Barnard Reference Barnard2023). The judge sustained the objection to the medical record, noted this exclusion meant the psychiatrist could not prove the patient was a danger to himself, and released him (Fieldnotes, Courtroom 1, 1/2017).

In involuntary medication hearings, psychiatrists were required to prove that medications’ benefits outweighed their risks (Behnke et al. Reference Behnke, Perlin and Bernstein2004). MHLS attorneys sometimes countered that treatment was wholly ineffective, an argument I never saw made in Paris (Table 3). Nonetheless, across 55 hearings focused solely on involuntary medication, judges always authorized treatment. In my dataset, however, in a quarter of the cases where judges ruled in favor of hospitals, they nonetheless removed certain medications from the order or set (apparently arbitrary) limits on how long the facilities could retain someone. These exercises of judicial discretion (which were neither authorized nor prohibited in New York Mental Hygiene Law) were not available in the repertoire of Parisian judges, who by statute could only rule to end a hospitalization.

Such modifications reflected how courts moved beyond their formal role in ruling on a patient’s application for release or a doctor’s request for medication to treat patients as serviceable legal subjects. Patients’ choices were accounted for in a system with limited control resources, even if their underlying preferences around treatment were not respected. One psychiatrist had testified that his patient, a young woman with bipolar disorder, lacked “capacity” to refuse medication owing to her “poor thought content,” “paranoia,” and “non-verbal” responses. The attorney challenged the doctor’s medication requests:

Here, the lawyer narrowed attention to the patient’s temporary state in the hospital, not her broader trajectory through the psychiatric system. Judges in turn recognized the system’s inability to enforce ongoing compliance, owing to an organizational separation between inpatient hospitals and outpatient treatment (in stark contrast to their integration in Paris) that meant only half of patients appeared for their post-discharge appointment (New York Health and Hospitals Corporation 2018).

MHLS lawyers did not adopt an adversarial repertoire because they denied that their clients needed treatment; rather, they focused on psychiatry’s limited ability to provide it. When I asked an early-career MHLS lawyer if he was worried about a suicidal client returning to the street unmedicated, he replied: “I mean, after two more weeks [of hospitalization], they’re still going to the street, and they’re still going to stop complying anyway.” He concluded, “Psychiatry can’t get people to buy into the idea that they have a mental illness. It has nothing to offer my clients except a short, synthetic sanity” (Interview, 9/2016). MHLS attorneys thus enacted a serviceable version of patients’ rights. Their toolkit hypothetically included hiring outside experts to corroborate clients’ claims that they were not mentally ill, but I never saw them do so. Instead, they emphasized the limits of psychiatric expertise and ensured that their clients’ resistance to treatment was accounted for in the legal process.

Paris: courting and setting aside consent

The minimum statutory requirements for French hearings required very little interaction between patients and judges. Judges solicited patients’ feedback about their hospitalizations, but could then write up rulings without directly communicating them. Nonetheless, as one judge explained, “I like to deliver my decisions directly to patients. [Hearings] have a pedagogical role, to talk about the value of treatment” (Interview, 5/2017). As I show below, many judges held a more optimistic view of psychiatric treatment than their New York counterparts, and encouraged patient consent even when the formal legal criteria for continued hospitalization without consent had already been met.

One older woman had been hospitalized when her secteur treatment team noted she had stopped coming to appointments. Her medical certificates described “delirious ideas” and a “paranoid sense of persecution.” She told the judge that people on the subway were laughing at her “as if she had the head of a clown” and that, when nurses came with the fire department to hospitalize her, they told her to “jump out the window” of her apartment. Despite the certificates establishing her need for involuntary treatment, the judge still spent significant time trying to convince her to agree voluntarily:

The judge closed, “Officially, you’re going to learn this at the end of the day, but I’m going to keep you here, with the hope that you can leave with a solid care plan” (Fieldnotes, Courtroom A, 5/2017). As we’ll see subsequently, judges in New York also lectured patients about taking medication. But this judge’s reference to “trusting” doctors reflected a vision that patients were serviceable for involuntary treatment until they developed an ongoing, collaborative relationship with psychiatry.

These constant solicitations of patient consent were legally paradoxical, since a consenting patient seemingly no longer met legal criteria. As one judge elaborated:

While judges showed significant deference to medical certificates, those certificates were often ambiguous with respect to this core requirement, frequently describing patients as “ambivalent” toward care. Indeed, in my dataset, only 15% of patients expressed a resolute opposition to any treatment.

One young woman came to the hospital voluntarily after a suicide attempt, but her doctor placed her on an involuntary status. Her medical certificate cited that she was psychotic and had an “ambivalence about care” that had led to a “degradation of her relationship with the [medical] team.” On the paperwork informing her, the patient wrote, “I refuse to be hospitalized involuntarily because I take my treatment and I want to be hospitalized voluntarily in a private hospital and see [a private] doctor specialized in psycho-trauma.” In the hearing, her attorney argued, “There’s no justification for an involuntary hospitalization. She accepts her treatment and cooperates, she’s even asking to see a doctor…I’m not going to read you the [legal] code, but this is incoherent” (given the law’s guarantee that patients could freely choose their treatment professional). Yet the judge ruled to keep her in the hospital, concluding that it was “impossible for her to consent to care” and that she had “failed to understand the gravity of her suicide attempt.” The evidence was her insistence on seeing a private doctor, specialized in trauma rather than psychosis (Fieldnotes, Courtroom C, 10/18).

The case highlighted potentially competing definitions of serviceable consent. Lawyers’ most frequent argument was to cite patients’ stated willingness to take medication as evidence that psychiatry’s own effectiveness in ameliorating symptoms meant that patients no longer met minimum requirements for continued hospitalization (Table 3). But psychiatrists frequently requested that judges give them more time to work on “consolidating treatment” and “preparing discharge” (Fieldnotes, Courtroom A, 6/2016, 5/2017). In France’s secteur system, the same psychiatrist would retain responsibility for a patient upon their release. But doctors could only impose medication inside the hospital (Legrand Reference Legrand2022). For psychiatrists, even a patient claiming they wanted treatment could be serviceable for forced hospitalization if that consent appeared too contingent for outpatient control.

Parisian judges’ repertoire gave them a way to reconcile these tensions. In legal trainings, judges were directed that “the first right” is “the right to care” (École Nationale de la Magistrature 2013), a conception of “rights” not available to their New York homologues. Many believed that, as a result of budget cuts, this right was weakening: as one judge explained, she envisioned her orders maintaining hospitalization as also admonishing hospital administration not to pressure psychiatrists to discharge patients too rapidly (Interview, 6/2016). Given that – absent an egregious procedural error – judges rarely found a basis for releasing patients, they were being honest when they counseled patients that the fastest route to regaining their freedom was to trust their medical team.

Psychiatrists, for their part, highlighted how hearings improved doctor–patient relationships. They redirected patients’ frustration away from medical personnel (who were providing the assessments justifying hospitalization) toward judges (who wrote the orders formally extending them) (Interview, Psychiatrist, 4/2016). Hearings thus created serviceable patients who were insufficiently consenting to merit release, but for whom further involuntary treatment (alongside a nudge from jurists) might lead both to a restoration of rights and ongoing control outside the hospital.

New York: bargaining for short-term compliance

In New York, patients were serviceable for hospitalization until they demonstrated compliance, which judges defined as temporary medication adherence in the hospital. This narrow conception was evident in a treatment-over-objection hearing for an elderly man transferred from a nursing home. His unwillingness to communicate with the treatment team meant they had not refined his diagnosis beyond “psychosis, not otherwise specified.” Nonetheless, the judge assumed he was capable of recognizing the value of committing to compliance:

Judges assumed that “psychiatric medication is indeed unequivocally useful for all patients” (Gong Reference Gong2017:214). But even psychiatrists articulated the “benefit” of medications as “being able to be discharged” and the “cost” of non-compliance as “remaining in the hospital” (Fieldnotes, Courtroom 1, 11/2016).

Despite their adversarial approach, MHLS lawyers also recognized their role in making patients serviceable for hospitals. As one veteran attorney told me, “I hate medications, I think they’re terrible. But we [MHLS attorneys]…wind up convincing people to take them. We’re much more successful than [hospital] staff.” As she elaborated, “We don’t talk about ‘insight’” – whether or not the patient accepts their diagnosis – “but say, ‘look, this is what the hospital is looking for: behavioral control and adherence to medication’” (Interview, 11/2016). Aware that judges would rarely find that patients did not meet legal criteria for further involuntary intervention, lawyers recognized that negotiating over compliance was the most effective way to accelerate discharge.

This was true even in cases over retention in the hospital where compliance was not actually a legal criterion (which formally hinged on patients’ risk of harm). One middle-aged man was diagnosed with paranoid schizophrenia, which caused “agitation” when not medicated. On cross-examination, the MHLS attorney haggled with the psychiatrist over medication dosage:

With the new deal in hand, the patient’s lawyer encouraged her client to pledge compliance:

Psychiatrists believed that such a switch from a monthly injectable to a daily pill would hasten a patient’s return to non-compliance, but they understood that participating in these negotiations was part of maintaining a working relationship with the court and thus maintaining a modicum of control (Interview, Psychiatrist, 1/2017). In this case, the judge directed the psychiatrist to release the patient on Assisted Outpatient Treatment (AOT) if he took the lower dosage.

AOT was indeed a mechanism to reconcile psychiatry’s limited control capacity with a legal repertoire that prioritized patient choice. Although AOT has been the subject of strident civil-liberties critiques (see Gong Reference Gong2017), many MHLS lawyers appreciated the way court orders to take medication outside the hospital (backed by the threat of returning to the hospital for non-compliance) shifted their clients’ calculus. As one explained:

At one hearing for a middle-aged man, the MHLS attorney informed the judge, “My client is objecting to the AOT order” (which would allow him to leave the hospital on the condition he take an injectable anti-psychotic at a monthly check-in with an outpatient provider). The judge responded, “Have you explained to your client that if he prevails, he’s likely to stay in the hospital for a long time? Why don’t you confer with him to make sure he wants to object?” He then addressed the patient directly:

His threat was exaggerated. Courts are not actually allowed to block discharge if requested by the hospital (In re Manhattan Psychiatric Center v. Anonymous, 2002). And, as he recognized in demanding the patient aver compliance, even the menace of being picked up by the sheriff was limited. Only 12% of people on AOT orders brought to ERs in New York City are hospitalized, owing to the scarcity of available beds (Office of Mental Health 2019). In this case, though, the attorney conferred with his client and announced, “He’s no longer opposing the AOT order.” The judge signed it and declared, “Congratulations!” (Fieldnotes, Courtroom 2, 12/2016).

This was serviceable compliance: enough to justify switching a patient to a less resource-intensive form of control, but not to end involuntary interventions entirely. Neither lawyers nor doctors followed their Parisian counterparts in defining a serviceable patient as one for whom forced treatment was a pathway toward an internalized commitment to psychiatric care.

Paris: reframing disruptive behavior as treatable illness

One-quarter of the hearings I observed in Paris were for hospitalizations “at the demand of a representative of the state” (SPDRE) based on an “infringement of the security of persons…[or] public order.” In all such cases I observed, patients were diagnosed as having a psychotic disorder. 88% had been hospitalized before, 71% had made a threat, destroyed property, or committed a violent act just prior to their hospitalization, and 67% clearly expressed opposition to their hospitalization. Yet while three of the four patients in my dataset who were released were SPDREs, the rulings revealed how a patient’s capacity for future consent to treatment (which is not part of the formal criteria for an SPDRE) remained central to assessing serviceability, alongside security and public order.

One middle-aged woman had been hospitalized after she repeatedly went to the prefecture of police to complain about her neighbors. She was assessed in the ER as having a paranoid psychosis. The woman was adamantly opposed to her involuntary injection and her lawyer argued that “no risk to the public order has ever been shown.” The prefecture, which sometimes sent its own attorney for SPDRE cases, intervened:

Afterward, the judge decided to bring in another psychiatric expert, noting hypothetically, “Even if they put her on a heavy injection after she killed three people, I need to know whether that treatment is really necessary.” The judge’s move was, in some ways, surprising: if the patient appealed, the question of whether she was a risk to public order would be central. Nonetheless, the judge refocused on the question of the woman’s wellbeing and capacity to accept treatment as central to the legitimacy of imposed psychiatric care. When the outside expert suggested the woman could reliably consent to outpatient treatment, the judge ended the hospitalization (Fieldnotes, Courtroom A, 6/2016). She was not serviceable for involuntary hospitalization, but only because her consent made her serviceable for outpatient treatment; her disposition simultaneously satisfied concerns about her need for care and the “infringement” on the public order she posed.

Other cases related to the SPDRE criterion of risks to the “security of persons.” Judges raised apprehensions about their potential legal culpability if they released dangerous individuals, although key informants could not cite any instances where judges had been found liable for failing to continue a hospitalization (Interview, Legal Professional Organization, 5/2017). One middle-aged man, diagnosed with schizophrenia, had a history of hospitalizations after breaking windows, climbing monuments, and exposing himself to minors, with a consistent refusal of all treatment. He was subjected to an SPDRE after an apparent suicide attempt, but his psychiatrist was now seeking to release him against the prefecture’s wishes. The judge read with incredulity a medical certificate that stated that “imposed psychiatric treatment on a patient who perceives himself as an artist has been very depressing and led to his suicide attempt…This patient may infringe on the public order but does not present ‘dangerousness.’”

Because the psychiatrist admitted the patient was ill and a threat to public order, the judge could already rule to keep him; she instead decided to ask for another evaluation (Fieldnotes, Courtroom A, 5/2017). One potential explanation for the psychiatrist’s surprising argument above stems from a tactic described to me in interviews: convincing judges to release patients who had been repeatedly placed by the prefecture but whose disruptive behavior psychiatrists believed they lacked the resources to control or treat (Interview, Psychiatrist, 4/2016). Such hearings have a much higher rate of releases than those held automatically after 12 days (Ministère de la justice 2019).

Judges could indeed clash with psychiatrists over the primacy of security and public order. They nonetheless largely shared the idea that serviceable subjects for hospitalization must have a temporary inability to consent, tied to an identifiable mental illness, that could be overcome with further medical intervention.

New York: behavioral control and unserviceable patients

Formally, retaining a patient on a civil commitment in New York requires they meet a strict standard of “pos[ing] a substantial threat of physical harm to himself or others” (Matter of Harry M., 1983). In practice, though, judges defined “threat” flexibly.Footnote ⁴ In the case of one young man diagnosed with schizophrenia, the psychiatrist recounted a range of symptoms. The hospital’s lawyer, however, focused on a single source of potential harm:

The judge told the patient, “you’re going to stay [in the hospital],” but could leave in “three-to-four days” unless “you don’t take your medication” (Fieldnotes, Courtroom 1, 1/2017). The judge never referenced the threat the hospital’s lawyer identified; instead, she focused on short-term medication compliance.

As in Paris, judges in New York viewed patients as serviceable for further hospitalization until they had assurance that patients were under some control, either by psychiatrists or patients themselves. But what if patients resolutely refused to bargain and instead rejected all medication, thus failing to provide that assurance? In some cases, MHLS attorneys could argue that patients’ temporary behavioral compliance with hospital rules – which, unlike consent, was visible to legal as well as psychiatric actors – rendered them legally unretainable.

An older woman had been brought to the ER after calling the police about her neighbor. Upon the officers’ arrival, she made a threat-laden accusation that her neighbors were stealing. It was her fifth hospitalization in as many months. The psychiatrist described her as “hostile,” “intrusive,” and “paranoid,” all of which were “major risk factors,” especially given her refusal of all medication. But when it came to cross-examination, the MHLS attorney focused on her behavior on her hospital ward and quickly cut-off the psychiatrist:

The judge addressed the woman directly, noting that she did not meet the threat standard: “You have a great deal of paranoia about stealing, which seems unfounded and irrational. Does that make you a danger to others? No. Please stop making calls [to the police] and coming back to the hospital.” She summarized, “I cannot hold you” and directed the MHLS attorney to “help her change the locks on her house” (Fieldnotes, Courtroom 1, 12/2016).

Tension around competing definitions of “compliance” in evaluating serviceability was also visible in the case of a middle-aged man with schizophrenia. The doctor testified that he had been admitted to the hospital after voicing “homicidal ideation” toward someone in his building. On cross-examination, the MHLS attorney avoided questions about the man’s treatment compliance and fired off a rapid string of questions about current violent threats, whether he had been restrained on the unit, and if he had problems with staff. The attorney cut the psychiatrist off after each “no” – a style of channeling expertise available in New York’s criminal defense-style repertoire. The patient then took the stand and demurred at the question, “Do you have a mental illness?” The attorney then took a more directive tack:

The judge ruled quickly: “Based on the facts adduced in this hearing, the application of the patient for release is granted.” The psychiatrist protested, “He was admitted just two days after we last discharged him!” (Fieldnotes, Courtroom 2, 1/2017). While the psychiatrist wanted to see a modicum of medication compliance (presumably to prevent another readmission), here the court valorized his visible signaling of minimal behavioral compliance.

These strategies depended on specific components of the available legal repertoire: adversarial questioning, the malleability of “threat,” and the ability to object to testimony about patients’ behavior outside the hospital. Because judges were inconsistent in their rulings over such hearsay, the effectiveness of emphasizing behavioral compliance varied. The head of psychiatry for a public hospital explained:

As with resolutely non-consenting patients in Paris, staunchly non-compliant patients in New York could cause confrontations between judges and psychiatrists. Despite this, hospitals rarely appealed unfavorable rulings: “They have hundreds of patients, with new ones arriving every day. They’re overwhelmed. If someone needs to go, they just let them go” (Interview, Judge, 12/2016). Even in moments of conflict, legal and medical actors largely recognized that a subset of patients would not be serviceable given the limits to the system’s control capacity and a legal repertoire that centered patients’ courtroom performances of behavioral restraint.