Mental Illness, Civil Liberty, and Common Sense

May 3, 2018

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COMMENTARY

Dr. Frances is former Chair and Professor Emeritus of Psychiatry at Duke University. He was the Chair of the DSM-IV Task Force. Mr. Ruffalo is Affiliate Assistant Professor of Psychiatry and Adjunct Instructor of Social Work at the University of South Florida. He is a psychoanalyst in private practice.

From our beginnings, psychiatry has functioned at the intersection of medicine and the broader society—serving not only to treat psychiatric disorders, but also to help prevent patients from harming themselves or others. When the father of modern psychiatry, Philippe Pinel (1745-1826), freed his patients from chains at the Salpêtrière asylum in Paris 220 years ago, he established a centuries-long precedent of attempting to appropriately balance the civil rights of the mentally ill with the occasional and carefully considered need for involuntary treatment. This requires finding a delicate balance best serving the sometimes  conflicting values of patient welfare, protecting civil liberties, and public safety.

More than any other medical specialty, we sometimes feel compelled, and empowered, to treat patients against their will. With this comes two great responsibilities—to protect free choice and civil rights whenever and to the fullest degree possible, but to restrict them on the very rare occasions when this is clearly necessary to protect the patient and/or society.

The state-operated inpatient “asylums” in the United States, originally intended as a respite for psychiatric patients, soon degenerated into overcrowded and degrading warehouses. Patients were deprived of liberty without due process, subjected to harmful neglect, and often locked up for years, sometimes for life, without any real treatment or normalizing interpersonal interaction. Rather than foster recovery, the social exclusion of hospitals often made patients much sicker.1,2

As recently as the 1960s, there were more than 600,000 Americans involuntarily committed to psychiatric facilities that really functioned more like prisons than hospitals. False commitment was common. Hazardous and unproven treatments like lobotomy and insulin shock were sometimes imposed on unwilling patients for unclear indications.2-4 One of us (AF) worked in several of these facilities and can bear personal witness to how dreadful they were.

Five nodal points contributed to the massive deinstitutionalization of psychiatric patients that occurred in the 1960s and 1970s. The Snake Pit—Mary Jane Ward’s bestselling novel (1946)1 that later became an Academy Award winning film (1948)—exposed the dire plight of the mentally ill to an outraged public. In 1961, psychiatrist Thomas Szasz2 published his classic book The Myth of Mental Illness, describing the destructive threats to civil liberties and a decent life posed by state “hospitals.” And also in 1961, sociologist Erving Goffman3 described how the neglect and humiliation of asylums-turned-dungeons made patients much more symptomatic and dysfunctional than they would be in more real-life situations. The availability of antipsychotic drugs in the 1950s and 1960s made feasible the closing of many state hospital beds and treatment in the more normal and socially inclusive community outpatient clinics. And finally, Jack Kennedy, the newly elected president, had a strong personal commitment to help the mentally ill based on his sisters’ disastrous experience with lobotomy.

The idea was to close the massive state hospitals and instead care for patients in community settings that would end their isolation from the world and recognize their rights as citizens. When funded and practiced well, community psychiatry was an enormous success. But, sadly, the money saved from closing the custodial state hospitals was often misallocated to tax cuts and prison construction—depriving the mentally ill of adequate community treatment and housing. The result has been a terribly broken American mental health “non-system” that overtreats the worried well and vastly undertreats the seriously mentally ill. Instead of 600,000 in state hospitals, we now have 350,000 mentally ill in prison and 250,000 homeless—because the vast majority of the are unable to obtain decent housing and access to treatment.

Funding for mental health continues to be cut by millions each year, long-term hospitalizations are virtually nonexistent, and many patients who desperately need short-term help are turned away because there really are no beds and no outpatient alternatives. This leaves them, and their families and loved ones, stranded without any recourse in a sea of neglect.

An all-too-common scenario in modern psychiatry is the person who can clearly benefit from psychiatry receiving no help because of the combination of unavailable treatment and/or too stringent commitment laws. If he then commits a (usually petty) crime, the police learn that time in the emergency department is wasted because there is usually no psychiatric treatment available in anything approaching a timely fashion. Because the only alternative is jail, cops are too often forced to turn would-be patients into inappropriate prisoners. And, occasionally, the seriously disturbed person will commit a major crime—one that could have been avoided had he received proper psychiatric care, counseling, and housing. The cruel paradox is that it is often too easy for the mildly ill person to receive medication, but far too difficult (and often impossible) for the seriously mentally ill to receive anything approaching appropriate care.

While the Szaszian position on involuntary commitment was valuable and much needed decades ago when coercive abuses of psychiatry were frequent, it has now mostly outlived its usefulness because psychiatric coercion is now so rare, and almost always necessary when applied. Today the awful coercion of the severely ill occurs because so many have been relegated to prison dungeons and back alley streets. Misplaced concern about psychiatric coercion often, and paradoxically, reduces the freedom and gravely harms patients who are severely ill. In the name of protecting their rights from psychiatry, the person is liable to wind up in jail.

We need an approach that balances civil rights with the common sense need for occasional involuntary treatment. Even Szasz acknowledged that government has a right—and duty—to protect citizens from dangerous people. And in two personal discussions with one of us (AF), he had a much more common sense position than in his necessarily polemical writings. While psychiatric commitment can be a terrible evil when done carelessly and too often, it can also be life and freedom saving, both for the patients themselves and for those around them, when done rarely and well.

In weighing the civil liberties implications of involuntary treatment in psychiatry, one must distinguish emergency holds (usually for 48 to 72 hours)—common and necessary to prevent imminent harm—from “commitment” in the sense of long-term institutionalization. The latter, now very rare, cannot be initiated by psychiatrists but only by a judge or a magistrate. Most civil libertarians deem short-term psychiatric holds to be appropriate use of state power to guard against imminent dangerousness. Concerns about long-term commitment are now mostly moot points, since such hospitalizations have become vanishingly rare.

So what are the middle ground solutions that reasonably balance civil rights with the rare need for involuntary treatment?

First, every effort should be made by the clinician to enlist the patient’s cooperation in treatment. In our experience, a trusting, empathic therapeutic relationship almost always eliminates the need for court ordered treatment. If the patient trusts you, he will take your carefully considered recommendation seriously. And involuntary treatment should never be initiated out of convenience or to avoid the difficult discussion of hospitalization. If patients must be hospitalized involuntarily, they should be offered the opportunity to sign voluntary papers as soon as possible and afforded the constitutional right to refuse medication if they are competent and nondangerous. Even involuntary patients retain the right to refuse treatment, so long as they are competent and there is no acute emergency situation.

Secondly, judicial protections must be firmly in place in all jurisdictions—not just “rubber stamps” that immediately grant the petitioning clinician’s or police officer’s request. In a free society such as ours, there are only two ways a person can legally be deprived of liberty: if they have or are suspected of committing a crime, or if they are psychiatrically committed (with the rare exception of the patient who poses a public health hazard due to a communicable disease). We must take the legal and philosophical ramifications of involuntary commitment seriously.

Thirdly, most court-ordered referrals should be for outpatient treatment in a pleasant environment that includes medication, decent housing, social inclusion, and vocational rehabilitation. Such outpatient commitment statutes exist in many states, yet historically have been underutilized because the necessary treatment and housing are so under-funded.

Finally, psychiatric advanced directives, allowing patients to agree to future treatment should they later become unwell again, should be encouraged whenever a patient has already had more than one episode of severe illness.

Sixty years ago, Thomas Szasz did the profession—and the world—a great service by pointing out the gross abuses of power perpetrated in the name of psychiatric treatment. His influence on the humane treatment of the mentally ill forever changed the landscape of American psychiatry. But the current clinical and legal reality has reversed. The risks to freedom come from jails and homelessness, not from the now almost nonexistent psychiatric hospitals.

Common sense, compassion, and good clinical care all support the rare, and carefully guarded, use of involuntary treatment to protect the most vulnerable members of our society. As unsavory as involuntary treatment may seem from moral and legal perspectives, it is very far preferable to homelessness and imprisonment—the heartbreaking consequence of our society’s longtime neglect of the seriously mentally ill.