Risky Business versus Overt Acts: What Relevance Do Actuarial, Probabilistic Risk Assessments Have for Judicial Decisions on Involuntary Psychiatric Hospitalization

Recently, several authors have suggested that only by incorporating findings from actuarial risk assessment instruments (ARAIs) can mental health experts provide evidence-based testimony in mental health commitment hearings. Determining eligibility for involuntary hospitalization seems like an appropriate, natural, obvious application of ARAIs. Similar instruments are used frequently in decision-making about sex offender commitments, where (as with mental health commitment) social policy ostensibly aims to protect the public from harmful acts by persons with mental abnormalities. Also, all evidence suggests that actuarial techniques for judging dangerousness are superior to other methods of assessing the risk of future violence. Yet in many jurisdictions, case law or mental health commitment statutes require clear and convincing evidence showing that a respondent actually did something (that is, committed an “overt act”) that did or could have caused harm. Such requirements may preclude using probabilistic considerations about future behavior as the sole ground for a mental health commitment. This article considers whether U.S. jurisdictions might allow mental health experts to use ARAIs as the primary evidence supporting their opinions in favor of involuntary psychiatric hospitalization. Our findings have important implications for the potential relevance of ARAIs in mental health commitment proceedings