Background

DoD Directive 6490.1, the original so-called "Boxer Law" (named after the California Senator who championed it’s supporting legislation), was enacted on September 14, 1993. This law established the rights of active duty military personnel and civilian employees of the Armed Services who are either referred by their commands for outpatient mental health evaluation, or are admitted for inpatient psychiatric evaluation or treatment, against their will. Its primary intent was to protect all such personnel from unwarranted mental health evaluations or involuntary hospitalization as retaliation for revealing flaws within military organizations ("whistle-blowing"). However, it was also designed to ensure that the criteria used by military mental health care systems, for the involuntary hospitalization of active duty service members, were essentially the same as those used for civilians throughout the rest of the United States.

The original Boxer Law was implemented in the Navy through SECNAVINST 6320.24 on December 14, 1994. In the fall of 1996, Congress expressed their concern to DoD Health Affairs over the failure of the military services to take appropriate precautions with service members evaluated by mental health professionals to be an imminent or potential danger to themselves or to others. Pursuant to these concerns, DoD implemented changes to their directive to provide safeguards in these situations. On October 1, 1997, the revision and expansion of DoD Directive 6490.1 was complete. The SECNAV implementing instruction was signed on 16 Feb 1999.

According to the above instructions, all involuntary referrals of a patient to a mental health provider originating from the patient’s chain of command must be treated differently from self-referrals or referrals from other health care providers. In involuntary mental health referral cases:

• The service member's command must first consult with a psychiatrist or psychologist regarding the proposed referral to determine whether mental health referral seems warranted based on the service member's history and other available information. (For emergency involuntary referrals see the instruction for the "emergency" exception to this requirement).

• The member to be referred must then be presented with a letter, signed by his CO or other designated command representative, informing the member of the scheduled mental health appointment, the reasons for the mental health referral, and who was consulted before making the referral. The letter must also inform the member of their rights to have legal counsel present during the evaluation, and the right to communicate with their Congressman or an Inspector General (IG) before the evaluation. The member must sign a letter acknowledging receipt of the written notification of referral.

• Before beginning the evaluation, the MTF mental health provider must ensure the member received a notification letter, as required, and that the referral seems warranted based on the member’s recent behaviors, etc. If the mental health provider suspects the referral was intended by the service member's command as punishment or harassment, the mental health provider is required to report this suspicion immediately to higher authorities.

Rights involving involuntary psychiatric admission

The Boxer instructions also contain the following procedures for protecting the rights of service members who are involuntarily admitted for psychiatric evaluation or treatment:

• Just like civilian mental health patients, active duty service members can only be involuntarily admitted to a psychiatric unit if they present with clear evidence of being at immediate risk of harm to themselves or others (including property). As always, the least restrictive alternative principle applies.

• Immediately upon involuntary admission, the member must be informed, in writing, of the reasons for the admission as well as their right to communicate with an attorney, IG, or member of Congress.

• In addition to the initial evaluation by the attending psychiatrist (within 2 business days), a second, independent mental health evaluation must be performed within 72 hours of admission. This second evaluation determines whether continued involuntary psychiatric hospitalization is warranted based on available evidence. The member must be informed of the results of this evaluation in writing.

• For as long as continued involuntary hospitalization and treatment is warranted, repeat independent mental health reviews must be performed and documented at least every 5 business days.

The revised DoD directive creates a new category of cases for service members deemed to be "imminently or potentially dangerous." Commanding officers and mental health providers are now charged with taking precautions to protect the service member and other individuals against death or injury (beyond psychiatric hospitalization) any time there is reason to believe a service member is an imminent or potential threat to kill or seriously injure someone else. These precautions include ensuring that the service member is evaluated within 24 hours as well as notifying the intended victim, restricting the access of the member to his potential victim, and when appropriate, effecting an expeditious administrative separation.

Nothing in any of the Boxer instructions affects the way emergent or routine psychiatric referrals are handled from sick call or an emergency room. Competence for duty, family advocacy, sanity evaluations for a court martial, and drug and alcohol referrals are also exempt.

1. DoD directive 6490.1, "Mental Health Evaluations of Members of the Armed Forces", 10/1/97.

2. SECNAVINST 6320.24, "Mental Health Evaluations of Members of the Armed Forces", 02/16/99.