Beyond Forced Psychiatry
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Beyond
Forced Psychiatry:
The Rights to Refuse and Explore Alternatives
This article by Jonah Paisner
discusses critical issues related to using legal force to compel compel
psychiatrically ill people to submit to treatment. As the
concept of therapeutic jurisprudence is widely implemented through
a growing national network of drug courts, it's important to reflect upon
the rights of addicted people in relationship to being required to submit
to treatment. This article provides a summary of the legal and
clinical issues that have emerged in relationship to the legally forced
treatment of psychiatrically ill individuals.
Terence T. Gorski
August 31, 2001 |
- Beyond
Forced Psychiatry:
The Rights to Refuse and Explore Alternatives
- By
Jonah Paisner
May 1999
-
- Table
of Contents
- I.
Introduction
- II.
Social Factors Leading to Force
- III.
Catalogue of Forced Treatments
- IV.
Liberty/Autonomy Jurisprudence
- V.
Alternative Treatment
- VI.
Conclusion
- Endnotes
-
- The
chief means of distinguishing human beings from all other animals (and
plants and minerals for that matter) is our facility and possession of
free 0will (1). Various religious (2) and philosophical belief
systems (3) impose a contrary matrix which may be called
determinism. For what should be apparent reasons, there is no
resolution between these mutually exclusive paradigms. Our social,
economic, personal, and global interactions, as such, seem to operate
in a flux: at one moment embracing the former, then when
convenience or necessity strikes, oscillating to the
latter. Wholesale shifts between the two imperceptibly underlay
all that we do.
-
- Yet
whether human behavior is governed by free will or determinism is of
crucial significance to an ordered society. Quite obviously, if
everything we do is determined by some prior cause - genetics (4) ,
temporary brain chemistry (5) , trained response (6) , the
supernatural (7) etc. – then responsibility, a bedrock of the social
compact, goes up in a wisp of smoke. How can we deter, rehabilitate,
or punish those who violate the civil and criminal laws if we are all
as a gaggle of lemmings - acting on orders from without? In fact, the
very presence of laws which determine culpability based on action as
well as intent, clearly reflect a view of human behavior directed by
free will.
-
- This
paper explores the social, legal, and therapeutic limits on the
obliteration of mental patients' free will. First will be explored the
social forces which seem, to many, to necessitate forced psychiatry.
Then a continuum of invasive treatment methods will be introduced and
discussed. Next will come a review of the liberty/autonomy
jurisprudence, which will show that there is an emerging basis in
legal precedent for a "right to refuse" treatment. Finally,
proposals for effective, manageable, and human alternatives to forced
psychiatry will be offered and evaluated.
-
- One
psychiatrist summarizes all mental illness as the basic inability to
"work and love." (8) Indeed the beautiful simplicity and
humanity of this notion is appealing. Such a belief posits a larger
framework in which individual maladies occurs: with the interactional
and the environmental. Presumably
these are factors which channel into the diagnosis of "mental
illness." But to this delicate flower of the human psyche, forced
psychiatry is a truckload of fertilizer. To grow and nurture those
among us who are suffering, we need more than industrial feed: the
air, water, and sunshine so necessary to recovery must literally, and
therapeutically, return to psychiatry.
- The
social compact [of behavior] necessitates that human beings must at
times check their behavior, and cool their heads before acting. We
believe that a greater good can come from rational and diplomatic
interaction among us, that order begets a community defined by freedom
and opportunity. So for obvious reasons, when a raving lunatic runs
naked down a major city street screaming obscenities and making
fearsome threats, the neighborhood recoils. A desperate though silent
voices boils: "make him go away!"
- As
the social web races outward -- the perimeter of the human circle
expanding by leaps and bounds -- our compartmentalized mode of
interaction dominates. Whereas in the past we may have seen the madman
as a father, brother, or neighbor, now he is among the loathsome
"other" who sully our public places. We have no allegiance
to his kind, perhaps at best moved by a nascent and evolving greater
social consciousness: such compassion, in stark contrast to the
anonymous and ever bursting social web, though, is constricted and
suffocated by the very demands of complex society that feed the
explosion. When mental disability takes hold of another, personal
sirens wail in our head, and cease only when actual sirens remove the
madman.
- In
the legal world there are two traditional bases for the use of forced
treatment by the state: parens patriae and police power. (9)
By no means an accident, the standard in most states for the
involuntary commitment of an allegedly mentally ill person is
"danger to self or others" and mental illness. (10)
- Parens
patriae addresses the first of these two dangers, and permits the
State to assumes a role of limited guardian for the purpose of
proscribing mental health treatment for one who may endanger himself
if left to his own devices.
- Police
power addresses the danger to the greater community: the state may
intervene and attempt to arrest the behavior of a person who poses an
imminent danger to fellow citizens. In most cases this is accomplished
by removing the person from the scene and taking her to a hospital or
a holding cell. The argument is that the greater good is
bolstered by protecting society, and likewise protecting the
insane from themselves, as it were.
- Once
in the hospital setting, involuntary psychotropic medication is often
administered upon the mental patient for the simple convenience of the
staff. (11)
Quite reasonably a prime objective of the hospital administration --
which may be frequently understaffed -- is to maintain order on the
ward.
- Within
the hospital setting, police power is used to justify heightened doses
of antipsychotic drugs to subdue unruly patients. The internal
dynamics of the ward, as such, must be considered in the context of
coercive treatment. However, psychiatric hospitals have other means at
their disposal for controlling such troublesome individuals, such as
placing them in more restrictive wards. These and other alternatives
will be further explored in the section on alternatives.
- Again,
remediation and control are central to mechanism of social control.
Society imposes massive pressure to conform to the central,
dome-shaped slope of the bell curve referred to as "normal."
(12)
Abnormal behavior, mathematically judged and consigned to the
extremities of the curve, is met with a powerful response. Removal
from society, and convenient somatization; these are efficient tools
with which to maintain the dominant and "consensual" (13)
paradigm. But amid well-meaning, albeit desperate, efforts to maintain
order, needless violation of basic rights to autonomy occur.
Furthermore, there is a cheapening effect to all human rights when the
bodily integrity of a minority vulnerable in society are ignored. (14)
- In
a "corrupt society" where mental patients are
disproportionately of color, and occupy the lowest socioeconomic
strata it cannot be ignored that insanity is a sociologic as well as
personal crisis. (15)
Any attempt to treat the mental disabilities of a single person must
therefore acknowledge and take into account larger social forces in
play. What psychiatrist would endeavor to "cure" the
anxieties of one so in debt that bill-collectors are calling at all
hours of the day without frankly admitting that a lack of funds seems
the chief contributing cause? In other words, treatment too often
loses sight of the forest -- so fixated on a single tree, or even just
a leaf, psychiatry forgets the whole.
- Although
little known to most members of modern society, the methods of
involuntary mental health treatment are varied, and can be plotted
along a "continuum of intrusiveness." As articulated by
Professor Bruce Winick in his seminal work in this area (16),
the actual methods employed when forcible treatment takes place begin
least intrusively with psychotherapy, then to behavior modification,
psychotropic medication, electroconvulsive therapy, electronic
stimulation of the brain, and lastly, and most intrusively,
psychosurgery. (17)
- Delving
into these procedures and their effects is necessary for both legal
and therapeutic reasons. For one, different individual liberty rights
are triggered/violated depending on the method used. As well,
alternative therapies are suggested by the goal(s) at work behind a
given treatment method. The following review briefly touches on the
salient characteristics of each method.
- Psychotherapy
-- including psychoanalysis, other talk-therapy, and group-therapy --
is the least intrusive form of psychiatry (18)
, and as such arouses minimal objections. In practice, these services
are performed by psychiatrists, psychologists, and increasingly by
social workers and others without M.D. or Ph.D. level training. (19)
- All
types of psychotherapy have in common the fact that treatment is
carried out through "talk therapy." The professional
listens, makes comments and asks questions to assist the patient work
through life challenges. Quite clearly, this psychiatric method, even
when used in compulsion, involves nothing more than talk. And while
psychological damage may conceivably occur, as far as invasiveness,
therapy is at the low end.
- Controversy
likely surrounds behavior modification because it seeks to
manipulate outward behavior directly, often throughout the use of
pain, discomfort, and other negative stimuli or via denial of
affirmation. Aversion therapy uses negative stimuli to train an
individual away from unwanted behavior; operant conditioning withholds
a benefit to encourage unwanted behavior to become
"extinct." (20)
But there is serious question about the effectiveness of these
methods. (21)
Finally, civilized society can only shutter at the barbarism of new:
whether vomit inducing injections, respiratory paralysis inducing
pills, or "bad behavior" shocks, many wince at the thought
of organized punishment as a method of "treatment." (22)
Although
not all behavior modification is so invasive, by definition it always
acts to change how a person acts -- not through persuasion or
suggestion as with psychotherapy -- but with a severe carrot or a
stick.
- Psychotropic
medication, the next-most invasive means of treatment, is the
first method on the continuum so far that categorically must invade
the bodily privacy of the patient -- this coincides with it as the
first organic method, which those remaining treatments of higher
invasiveness are as well. Pills, of various sorts, act to control
excessive excitation (mania), lethargy (depression), or
incomprehensible behavior (schizophrenia) to name the main
"diseases" of the mind. These pharmacological therapies are
very invasive not only because of obvious need to ingest the pills,
but because of the change in behavior they procure, as well as the
side effects which may result. (23)
- While
discussion of specific medications and their effects is beyond the
scope of this paper, a brief mention of some notable effects is
warranted. Subjective effects tending to impose upon autonomy rights
of those taking psychotropic medication can include a "haze of
drug-induced docility" in which "the patient remains
generally unconcerned, unquestioning and much easier to manage" (24)
and "has the undisputed effect of depriving the patient of the
initiative and the will to resist." (25)
Even more troubling are the toxic side-effects and neurological
effects which accompany use. Autonomic effects include blurred vision,
dry mouth and throat, constipation, dizziness, fatigue, and inhibition
of ejaculation. (26)
Of immense frustration to those who take psychoactive drugs is
akathisia -- a feeling of motor restlessness where the patient's
"bones feel as though they are jumping out of the body." (27)
Considered irreversible, tartive dyskinesia is a legacy of long-term
use of psychotropics; permanent effects include bizarre movements of
the tongue, face, and neck. (28)
- Once
called "electroshock therapy", electro-convulsive therapy
(ECT) has not only upgraded to a more marketing-friendly moniker,
but has also changed in substance as well. Modern ECT usually takes
place while the patient is anesthetized and injected with muscle
relaxants so as to avoid spasms during the procedure which in the past
had sometimes damaged teeth or jaw bones. (29)
Electricity is applied to the brain in such a way that a grand-mal
seizure is achieved. Ostensibly used to treat depression, controversy
abounds as to the memory loss effects of ECT. While proponents claim
the only memory lost is that of the procedure itself, a growing body
of ECT "survivors" as well as their allies insist that major
unrecoverable memory loss is reason enough to outlaw ECT. (30)
These anecdotal experiences have recently been given support by
research conducted by a U.S. federal government agency which found
persistent impairment of memory after ECT was performed. (31)
- Electronic
stimulation of the brain (ESB) is an largely experimental method by
which electrodes are
implanted in specific know regions of the brain; when stimulated, the
patient experiences particular sensations, or is provoked towards
certain behavior. These stipulations can be extremely potent and
behavior affecting. 32 Most significantly, ESB modifies the state of
the brain directly, and induced in the patient sensory experiences,
without her knowledge or ability to resist; its highly intrusive
nature and possibility for abuse are cause for pause. (33)
- Psychosurgery
is the last, and by far the most intrusive, method used to treat
mental dysfunction. While "lobotomy" is but the most
commonly know type of psychosurgery, all forms use cuts or damage to
the brain tissue in an attempt to alleviate unwanted and troublesome
behavior; the practice likely originated from the belief that mental
illness originated from structural defects in the brain itself. (34)
But unlike the complex chemical effects of psychotropic drugs,
psychosurgery is a blunt instrument, indeed: "although lobotomy
rendered patients calm, it also resulted in intellectual deterioration
and personality changes, including apathetic, irresponsible, and
asocial behavior, as well as general blunting of emotional
responsiveness and impairment of judgment, initiative, and
creativity." (35)
Due to its massively invasive nature, irreversibility, and stultifying
effect, psychosurgery is rarely performed today, but still poses a
tremendous danger as a form of institutional social control. (36)
- In
the words of one commentator, at the extremes, the controversy over forced
treatment is a battle between a "therapeutic orgy" and the
"right to rot." (37)
But forgoing name-calling for the moment, this section will explore
the maximum personal autonomy rights as can be found in the law –
saving consideration of what treatment, if any, may fill the gap (and
avoid the "rot") left by a decision to refuse psychiatric
treatment for the next section on alternatives. Note that the use of
law and legal means to achieve changes in treatment is encompassed in
a fairly recent body of law entitled therapeutic jurisprudence (TJ);
this paper views law through this "lens" and uses the tools
of TJ (observation of the therapeutic and counter-therapeutic effects
of law) in the following analysis. (38)
- Although
at
present involuntary psychiatric treatment is widespread, there is a
rising body of scholarly analysis and case law that supports the
"right to refuse" mental health treatment under numerous
circumstances. This section will begin with an exploration of the
constitutional foundations that serve to undergird the right to
refuse. Then the multiple paths of the modern liberty/autonomy
jurisprudence will be sketched. Arguments which are most compelling --
and promising -- will be placed under close scrutiny to determine if
their adoption by the U.S. Supreme Court or the various state supreme
courts and legislatures will be imminently forthcoming.
- Doctrine
of Informed Consent
- As
a predicate to examination of modern autonomy rights, a mention of the
doctrine of informed consent is crucial. Loosely stated,
informed consent serves to promote self determination and rational
decision making of the individual. (39)
Under the doctrine, a practitioner who seeks to offer a given
treatment must tell the patient:
- 1)
all risks and benefits of the treatment;
- 2)
any side effects or complications;
- 3)
the likelihood of improvement with and without the treatment;
- 4)
any alternative methods available. (40)
- Although
there is heated debate whether those who are involuntarily committed
must be afforded the protections of informed consent, courts generally
presume they are competent and that the doctrine applies. (41)
- Where
mental health professionals seek to impose treatment without informed
consent --especially when against the express wishes of the patient --
government action is implicated and relied upon for authority.
As described in the introduction, the state parens patriae and police
powers, which most likely already have come into play during an
involuntary commitment, now bolster treatment decisions (42);
the health professional's very acts carry the weight of the
government. Here the unwilling patient and health professional,
now an agent of the state, enter the arena of the U.S. Constitution,
which dictates an interplay of competing individual and government
interests.
- The
Bill of Rights -- the first ten Amendments to the Constitution – are
understood to restrict action by the federal government to guard
against a tyrannical encroachment of individual rights. (43)
The First Amendment provides, inter alia, "Congress shall make no
law *** abridging the freedom of speech." (44)
Through the Due Process clause of the Fourteenth Amendment, states
(and mental hospitals in whom the involuntarily committed reside) are
subject to the limitations of the First Amendment as well as much of
the Bill of Rights. (45)
Beyond protecting the literal right to verbalize and write, the First
Amendment is interpreted expansively. (46)
- In
the context of involuntary treatment, courts have held that the
"freedom of belief," "freedom of mind," and
"freedom of thought" are safeguarded by the First Amendment;
its language has been used to resist forced psychotropic drugs, (47)
ECT, (48)
and psychosurgery (49).
A significant case in this area is Whiney v. California (50)
where Justice Brandeis wrote a concurring opinion that development of
"facilities" and the "freedom to think as you
will" ought to be encouraged and protected by the state in
connection with discovering and spreading "political truth."
(51)
Similarly, in Griswold v. Connecticut Justice Douglas recognized
"freedom of thought" as an integral aspect of free speech. (52)
Clearly, if the side effects described in the invasive continuum above
are a guide, involuntary psychiatric treatment -- especially the most
invasive varieties -- are subject to the limitations of the First
Amendment as against the freedom the think. As such, the dulling,
immobilizing, memory-loss inducing, and disorienting effects of these
methods are a clear violation of free expression rights protected by
the First Amendment.
- Although
there are strong arguments (53)
to suggest the Eighth Amendment may be an appropriate instrument for
the general refusal of involuntary psychiatry as "cruel and
unusual," recent cases have rejected this approach. (54)
Outside of the prison context, courts narrow applicability of the
amendment to treatment for two purposes: discipline and punishment. In
other words, the day-to-day administration of psychiatric treatment
does not rise to a level falling under the Eight Amendment ambit until
significantly "un-hospital-like" purposes are involved. As
described above in the section on treatment methods, certain drugs
used in aversion therapy were found to violate the Eight
Amendment even though characterized as "treatment" by
the program. (55)
Maintaining the security of a ward, under state police power, is
justified. However, when an infraction takes place and the discipline
is via intrusive treatment methods -- when less invasive alternatives
such as seclusion or restraint is available -- this is punishment and
ought to be restricted by the amendment. (56)
The consideration of various means of accomplishing a state action
lead to a discussion of the substantive due process protections which
afford a right to refuse.
- Under
the Fifth and Fourteenth Amendments, government may not deprive a
person of "life, liberty, or property without due process of
law." (57)
Modern application of substantive due process to noneconomic rights
began with Griswold v. Connecticut. (58)
There the Court found a "right to privacy" which exists in
the "penumbras" formed by emanations from the Bill of
Rights. (59)
- From
these airy proclamations, seemingly of obscure origin, the Court spoke
unmistakably with Roe v. Wade, the famous abortion case, in which it
proclaimed a right of privacy derived from substantive due process
found in the Fourteenth Amendment's notions of personal liberty and
state restriction. (60)
- According
to the substantive due process strict scrutiny test, if the Supreme
Court finds a fundamental right at stake, the governmental interest
must be "compelling" to justify interference with that
right. (61)
Recent abortion cases have addressed the nature and consequences of
state action against privacy, even when adjudged to be compelling: the
state must use the least intrusive means available (62),
and action may not impose an undue burden (63)
upon the individual.
- While
holding that forced antipsychotic medication in the prison setting
invades a "substantial liberty interest", the Court does not
indicate whether this interest rises to the level of fundamental, nor
how the analysis applies outside of prisons. (64)
But since the rights of the civilly committed are presumptively higher
than that of prisoners (65)
the nature of the right to refuse is higher than
"substantial" possibly as high as
"fundamental." This should trigger a higher standard
of review over involuntary treatment by courts than merely the
deferential "rational relationship" test.
- But
moving from the sublime to the utterly practical, how does a
scholarly parsing of judicial review standards to protect
"privacy" translate into a concrete right to refuse mental
health treatment? Presently, a pack of Supreme Court cases (66)
-- none concerning the on-all-fours issue of the mental patient's
right o refuse treatment -- are relied on by lower courts to advance
the constitutional basis for a right to refuse; examples follow.
- In
Woodland v. Angus, a pre-trial detainee was found incompetent to stand
trial and made a patient in a mental hospital; the court held forced
psychotropic drugs used to make him competent violated substantive due
process. (67)
- In
Rogers v. Commissioner the Supreme Judicial Court of Massachusetts
found a right to refuse psychotropic medicine based on the personal
autonomy guarantees of the constitution and tort law. (68)
- Finally,
in New York City Health & Hospitals Corp. v. Stein, the court
reasoned that the constitutional privacy right permits a patient not
adjudged incompetent to refuse ECT. (69)
- Clearly,
since the Supreme Court has withheld judgment of the right to refuse,
discretion rests with lower courts; unfortunately all too often this
leaves recipients of forced treatment at the mercy of local judges who
may not rule on the side of autonomy. While a right to refuse can be
found, it will likely take a confluence of conflicting rulings in the
circuit courts before the Court can ratify it, and ensure the right
unmistakably flows down to all mental patients.
- It
is anticipated that at this point, the reader's exposure to
questionable social causes for force, the spectre of damaging invasive
methods, and an emerging right to refuse all lead her inextricably,
and quite naturally, to this section. Necessarily, much legal analysis
happens in a "rights-vacuum", contrary to the very notion of
a therapeutic jurisprudence, where the consequence of a finding of a
right to refuse -- what alternatives will the patient exercise? -- is
left unasked. This paper attempts a principled transition from the
current paradigm to one where both police power and parens patriae
derived state interests in treatment are accommodated. Unwilling to
settle for unmanageable anarchy nor "rotting with their rights
on", (70)
this section explores means to maintain order on the ward as well as
artful healing of those unable to heal on their own.
- In
recognition of the large population of involuntarily committed persons
on the ward today, and the vastly understaffed and underfunded
programs charged with
their administration, an immediate transition to the least invasive
and least restrictive means of treatment is utter folly.
Instead, current mental health institutions should begin by adopting
minimally invasive methods for trauma and dangerousness-related
patients. (See Part A, below.) Concurrently, private hospitals and
state legislatures must look to the future of treatment of mentally
disabled people: a change of scenery, and a return to the asylums (71)
of old. (See Part B, below.)
- A.
Short Term - Minimally Intrusive Control and Uplifting the Ward
- Faced
with a psychotic patient, hospital staff get edgy. But through
creative and careful planning, mental health practitioners can avoid
the need to force their patients to submit to invasive treatment.
Through the use of "new" seclusion, humane restraints,
nutritional methods, exercise, and light, music, and tactile
therapies, people who are undergoing internal upheaval will be kept
from hurting others and themselves. In the process, though, they will
not be hurt by those charged with administering care.
- Seclusion
is an emergency measure and should be used with great care. Reserved
as a place for initial cooling off upon admittance for the grossly
psychotic, or for the crisis outburst or altercation, seclusion
should not be used to punish patients. Rejecting the punitive
model, these "new" seclusion rooms should contain colors,
and safe diversions (books or toys) that would aid in calming patients
down. They should be visited regularly by staff members, who would
speak to them as a person, and try to engage in short talk to develop
a rapport. Such steps are crucial so the inexcusable practice of
leaving patients locked up, and "forgetting" about them –
with attendant worsening of psychological condition -- is eliminated. (72)
Patients in seclusion must immediately begin nutritional treatment
methods.
- Appropriate
and important for the entire ward, nutritional methods (73)
consider the biochemical and nutritional aspects of both causative
factors and treatment of many mental illnesses. For example, in the
case of the psychotic patient, a leading scholar in the field, Eva
Edelman, suggests a natural phenothiazine equivalent:
- Vitamin
C may be a natural tranquilizer and anti-psychotic agent. Preliminary
work by Tolbert suggest that vitamin C occupies the same (dopamine)
receptor sites as phenothiazine and that gram for gram it's as
powerful as Haldol -- without causing tartive dyskinesia or other
detrimental effects to the nervous system. (74)
(citations omitted.)
- Edelman
also cites studies from psychiatric literature (75)
to support that niacin can help schizophrenics lower their neuroleptic
doses. (76)
More broadly, by exploring the effects of various neurotoxins
(including tobacco, caffeine, alcohol, pesticides, organic solvents,
metal toxicity, antioxidants etc.) Edelman chips away at the hegemony
of biopsychiatry as the only model suitable to treating the symptoms
of mental dysfunction. 77 After all, if exogenous chemicals and
internal biotypes (78)
influence our internal chemical and biological make-up, then healing
can likely result through nutritional and orthomolecular treatment
methods.
- Exercise,
music, and other revitalizing therapy should be established as well.
One clinical psychologist, in a dialogue with a practitioner of a
dance therapy called Contact Improvisation (CI), commented that
"the therapeutic potentialities inherent in CI open up new
metaphors for change. Invitation, engagement, and initiation become
exciting possibilities." (79)
Clearly the staid -- some would say mind-numbing -- environment of
most psychiatric wards must move away from the typically
"custodial" setting, and adopt a more life affirming model.
- B.
Long Term - From Institution to Sanitarium
- With
the above short term measures slowly re-humanizing existing mental
health facilities, the long term objective is none other than an
institutional revolution: take away the institution, re-introduce the
sanitarium. Whether called a "haven" (80)
or "new asylums" (81)
when conceived from the ground up, these healing centers more resemble
communities than hospitals:
- If
we are to rebuild a more enlightened system to care for schizophrenics
and other socially disabled people, a working start up model could be
the kibbutzim of modern Israel. Egalitarian communes, usually based on
agriculture, in which members live and work together, sharing the
fruits of their labor in a non-competitive way *** [as a] sanctuary
from the pressures of modern society. (82)
- At
present a number of private organizations embrace this model (83)
; by way of example, a brief description of Soteria House (84)
follows. Housed in a residential building in an urban setting, the
staff members were chosen for their sincere interest in listening to
the "seemingly irrational communications" of the patients --
first time sufferers of schizophrenic symptoms. (85)
Psychotic persons are treated in ways that do not invalidate the
subjective validity of their experience, and instead are sought to be
understood and the "madness" integrated into their lives. (86)
These ways of planting compassion in patients is a dramatic
improvement over the needlessly power concentrating and
control-oriented models in place today.
- Sociological
change in the ward ought to be matched by improved designs conducive
to patient recovery. One of the most troublesome aspects of most
modern hospitals is the poor quality of light, which not only may
impede healing, but contribute to iatragenic malady. (87)
To address such ill-conceived design defects, we might learn from the
story of Mother Ann Lee. Mother Ann introduced the Shaker movement to
America during the industrial revolution. 88 One who often exhibited
symptoms of manic-depressive illness herself, Mother Ann's Shaker's
have left a legacy of majestic illumination of interior environments.
89 As well, a highly unconventional approach to the empathetic design
of psychiatric wards can be found in the case of one Canadian
architect: he ingested LSD and spent several hours in a conventional
psychiatric institution to experience the effect the building had on
him. (90)
From his experience, he introduced modifications which included, inter
alia, designing large spaces in a circle to avoid unexpected and
sudden encounters; the wall, floor and ceiling are clearly demarcated
to aid patients in sensing their inner surroundings. (91)
Design considerations unique to the person experiencing an altered
state of consciousness are crucial to treatment that is fruitful,
unjarring, and ccessible.
- Sustainability
and humane treatment are the cornerstones of the ideal alternatives to
forced psychiatry. Ironically, refusing conventional treatment may
be good for the patient. Besides avoiding invasive practices, the
negotiation that ensues between patient and provider encourages
autonomy and bolsters patient dignity. (92)
Also, force frequently leads to the kind of negative reaction which
leads to poor outcome and noncompliance. (93)
- At
present, great resources are hemorrhaged in legal battles to enforce
one of the "self- evident" rights propounded by the
Declaration of Independence -- liberty. As this paper
has presented, the right to refuse forced treatment is only a
precursor to the affirmative right to chose alternatives. Someday, the
time will come when the wisdom of effective, cooperative treatment
methods will be self-evident. It is only then that therapeutic
jurisprudence can close the book on psychiatry. Provided a new
catalogue of unforced treatment, the law at last can retreat from the
arena of mental healthcare.
- 1
. In J. Nelson, Healing the Split: Madness or
Transcendence? A New Understanding of the Crisis and Treatment of the
Mental Ill, 317 (1990) (psychiatrist Nelson explains "[t]he
emerging power of the mind over brain is the ultimate assertion of
free will. *** The demonstrable power of human will is everyday proof
of the primacy of the mental over the physical, of the ability of
consciousness to govern the activity of its earthy caretaker, the
brain.")
- 2.
Consider the Jewish, Christian, and Islamic belief in an omniscient,
omnipotent, and omnipresent God. By God's very definition, God must
know, in a timeless manner, all acts that have been, are, and shall
be. Therefore, God acts as a subtle element of background determinism.
- 3.
Eg, Copernicus' clockwork-like functioning of the solar system, and
Descartes' view of the mechanistic operation of the human body as
discussed in, Guy Murchie, The Seven Mysteries of Life, An Exploration
in Science and Philosophy, 383 (1978)
- 4.
Consider the work of Darwin as presented in his basic exposition of
the workings of gene-based transfer of organism characteristics, Id.,
at 162
- 5.
For example, behavior caused by one under the influence of alcohol,
drugs, or one who has suffered a head injury.
- 6.
To most, Pavlov's Dog is a familiar example of trained response. In
that experiment, Pavlov trained his dogs to associate a bell with
food; they soon salivated at the mere sound of a bell with no food in
sight. See, I. Pavlov, Work on the Digestive Glands (1897)
- 7.
Most notable is the case of demonic or other supernatural possession.
See Judith S. Neaman, Suggestion of the Devil: The Origins of Madness;
Werewolves, demoniacs, lunatics, fools: thir curers and exorcists,
36-38 (1975)
- 8.
Dr. Edward Colbach, as stated in Law and Psychiatry Seminar lecture at
Northwestern School of Law of Lewis and Clark College on 1/28/99
- 9.
See Mills v. Rogers, 457 U.S. 291, 296 (1982) (Court finds two State
interests, parens patriae and police power, which must be weighed
against the individual's liberty interest).
- 10.
See generally, Involuntary Civil Commitment in the 90s: A
Constitutional Perspective, 18 Mental & Physical Disability L.
Rep. 320, 329-336 (1992) (providing a table with civil commitment
standards throughout the United States).
- 11.
E.g., Wyatt v. Aderholdt, 503 F.2d 1305 (5 th Cir. 1974) (enjoining
the use of medication "as punishment, for the convenience of
staff, as a substitute for program, or in quantities that interfere
with patient's treatment program").
- 12.
Thomas Szasz, Ideology and Insanity 13 (1970) ("[t]he concept of
illness, whether bodily or mental, implies deviation from some clearly
defined norm. *** [W]hen one speaks of mental illness, the norm from
which deviation is measured is a psychosocial and ethical standard.
(emphasis in original))
- 13.
See supra note 1, at 22,26-27 ("consensual reality" defined
as that interpretation of reality which is learned from other minds
and from the consensus of society)
- 14.
See Eulis Simien, Jr., The Interrelationship Of The Scope Of The
Fourth Amendment And Standing To Object To Unreasonable Searches, 41
Ark. L. Rev. 487, note 236 (1988) ("Collective rights are
distinguishable from individual rights in that the latter were
designed to govern the one-on-one relationship between the government
and a citizen and the former address themselves to the assurances
given to all citizens in general that the government will perform and
function in certain designated manners.") Therefore, government
force against a single citizen suggests possible government force --
i.e. one-sided, non-mediated action -- upon citizens in general.
- 15.
Lester A. Gelb, M.D., Mental Health in a Corrupt Society, in Going
Crazy: the Radical Therapy of R.D. LaIng and Others, 196-197(Dr.
Hendrik M. Ruitenbeek ed., 1972) [heriafter "Going Crazy"]
("in the treatment of the individual or groups of individuals we
must be aware that social change may be the most meaningful
therapeutic goal and therefore must be a real part of our professional
concern.")
- 16.
Bruce J. Winick, The Right to Refuse Mental Health Treatment (1997)
- 17.
Id at 23
- 18.
Quite rightfully, some may argue that in modern times talk therapy
isn't even psychiatry,
but instead falls under the sister discipline of psychology.
Psychoanalysis, a subset of psychotherapy, however, is traditionally
associated with psychiatry.
- 19.
See R. Reisner et. al., Law and the Mental Health System: Civil and
Criminal Aspects, 58-60 (1999)
- 20.
Id at 925
- 21.
Winick, supra note 16, at 51
- 22.
See infra section on Liberty/Autonomy Jurisprudence for discussion of
Eight Amendment prohibitions on cruel and unusual punishment.
- 23.
See Reisner, supra note 19, at 39-40
- 24.
Winick, supra note 14, at 78
- 25.
Id at 82
- 26.
Id at 72
- 27.
Michael Sole, M.D., in a telephone conversation 11/21/98
- 28.
Winick, supra note 14, at 73 ("these extrapyrimidal symptoms are
subjectively quite stressful, may be incompatible with clinical
improvement and with a useful life outside the hospital, and can be
more unbearable than the symptoms for which the patient was originally
treated")
- 29.
Reisner, supra note 16, at 41
- 30.
See Article, "Zapback Campaign News: UK activists say 'Pull the
Plug'", Dendron: Human Rights & Alternatives in the
"Mental Health System", 34 (Winter 1998/1999)
- 31.
Winick, supra note 16, at 93; see also Aden v. Younger, 57 Cal.App.3d
662, 129 Cal.Rptr. 535, 541 (Cal.Ct.App.1976) (ECT has several adverse
effects, including memory loss and intellectual disorientation)
- 32.
Id at 97 (ESB is such a powerful stimulator that when electrode
implanted into pleasure center of animal, animal chose electrical
self-stimulation over food, until death by starvation resulted.)
- 33.
Id at 101
- 34.
Winick, supra note 16, at 103
- 35.
Id at 105
- 36.
Id at 107. Specifically in overcrowd hospital or prison settings,
where involuntary psychotropic drug treatment alone proves
unmanageable or insufficient.
- 37.
See Catherine Blackburn, The "Therapeutic Orgy" "and
the 'Right to Rot'" Collide: The Right to Refuse Antipsychotic
Drugs Under State Law, 27 Hous. L. Rev 447 (1990)
- 38.
See generally Christopher Slobogin, Therapeutic Jurisprudence: Five
Dilemmas to Ponder, 1 Psych. Pub. Pol. L. 1, 194 (1995);
- 39.
See Robert Levy and Leonard Rubenstein, The Rights of People with
Mental Disabilities, 103 (1996); see also the general principle as
affirmed in the famous line by Justus Cardozo: "Every human being
of adult years and sound mind has a right to determine what shall be
done with his how body." Schloendorff v. Society of New York
Hospital, 211 N.Y. 125, 129-130 (1914). While the reference to
"sound mind" may seem to beg the question concerning
involuntary committees, most courts presume the determination of
competency to be separate from the mere status of being "mentally
ill" and therefore the right to refuse may lie., see e.g., Lotman
v. Security Mut. Life Ins. Co., 478 F.2d 868, 873 (3d Cir. 1973);
Mills v. Rogers, 457 U.S. 291 (1982)
- 40.
Levy et al., supra note 39, at 103
- 41.
See supra note 38
- 42.
There is an unfortunate spectre of actual treatment methods used for
non-treatment purposes such as control or punishment without the
patient's knowledge. see e.g., Knecht v. Gillman, 488 F.2d. 1136 (8 th
Cir. 1973) (when instituted without informed consent, a program of
forcibly administering a drug which induced vomiting was a violation
of 8th Amendment cruel and unusual punishment proscriptions).
- 43.
See Michael Misocky, The Patients' Bill Of Rights: Managed Care Under
Siege, 15 J. Contemp. Health L. & Pol'y. 57, 57 (1998); Gerald
Gunther, Constitutional Law 418 (13 th ed. 1997)
- 44.
U.S. Const. amend. I.
- 45.
See e.g. Gunther, supra note 43, at 432-434 (selective
"incorporation" doctrine articulated by the U.S. Supreme
Court causes protection of most provisions of First through Eight
Amendment to flow through the Due Process Clause and apply to the
state as they apply to federal government action)
- 46.
Winick, supra note 16, at 135
- 47.
Rogers v. Orkin, 478 F. Supp. 1342, 1366 (D. Mass 1979), aff'd in part
and rev'd in part on other grounds, 634 F.2d 650 (1 st Cir. 1980); Bee
v. Greaves, 744 F.2d 1387, 1393 (10 th Cir. 1984), cert. denied, 469
U.S. 1214 (1985)
- 48.
Lojuk v. Quandt, 706 F.2d 1456 (7 th Cir. 1983)
- 49.
Winick, supra note 14, at 135
- 50.
274 U.S. 357 (1927)
- 51.
Id at 375
- 52.
381 U.S. 479, 481 (1965)
- 53.
See Winick, supra note 16, at 226-227 (at time of adoption, mental
patients were treated as
criminals; like prisoners, mental patients are in custody, are
confined and not subject to public scrutiny; traditional remedies
against abuse-- civil and criminal -- not readily available to mental
patients)
- 54.
Rennie v. Klein, 653 F.2d 836, 844 (3 rd . Cir 1981) (en banc); Price
v. Shepard, 239 N.W.2d 905, 908 (Minn. 1976); Lojuk v. Quandt, 706
F.2d 1456, 1464 (7 th Cir. 1983).
- 55.
Knecht, supra note 14, at 1137
- 56.
See Winick, supra note 16, at 237
- 57.
U.S. Const. amend V (applicable to federal government), XIV
(applicable to state), § 1; see supra note 44
- 58.
381. U.S. 479 (1965)
- 59.
Id. at 484
- 60.
410 U.S. 113, 153 (1973)
- 61.
See e.g. Gunther, supra note 43, at 516-518
- 62.
Roe, supra note 60
- 63.
See generally Planned Parenthood of Southeastern Pennsylvania v. Casey
505 U.S. 833 (1992)
- 64.
Douglas S. Stransky, Comment, Civil Commitment and the Right to Refuse
Treatment: Resolving
Disputes From a Due Process Perspective, 50 U. Miami L. Rev. 413, 432,
discussing Riggins v. Nevada, 504 U.S. 127 (1992) (forced drugging of
pre-conviction defendant violated due process)
- 65.
Youngberg v. Romeo, 457 U.S. 307, 321-322 (1982) ("[p]ersons who
have been involuntarily committed are entitled to more considerate
treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish"); Clark v.
Donahue, 885 F. Supp. 1164, 1166 (S.D Ind. 1995) (involuntary mental
patients have more protected conditions of confinement that criminally
convicted prisoners")
- 66.
Ingraham v. Wright, 430 U.S. 651,673 (in a case on school corporal
punishment, due process inures a right to be free from and to obtain
judicial relief for unjustified intrusion on personal security); Vitek
v. Jones, 445 U.S. 480, 492 (1980) (citing Ingraham, held that prior
to an involuntary transfer to mental hospital, prisoner's due process
rights demanded a hearing); Youngberg, supra note 65 at 315 (liberty
interest in "personal security" requires reasonably safe
conditions of confinement and freedom from invasion of bodily
integrity for a involuntary resident of a mental retardation facility)
- 67.
820 F.Supp. 1497, 1512 (N.D. Ca. 1993)
- 68.
458 NE.2d 309, 315 (Mass, 1983)
- 69.
335 N.Y.S.2d 461, 465-466 (Sup. Ct. 1972)
- 70.
See supra note 37
- 71.
Prior to the modern connotation of the "insane asylum,"
Middle Age places of rest and rejuvenation for the mentally troubled
were called sanitariums, and provided asylum -- much as a political
dissident seeks the haven of political asylum. See Neaman, supra note
7, at 138; See also Claude M. Steiner, Ph.D., Radical Psychiatry, in
Going Crazy at 308 ("[medical] psychiatry is a step sideways into
pseudoscientism from the state of the art in the Middle Ages, when it
was the province of elders and priests as well as physicians")
- 72.
See Craig Haney and Mona Lynch, Regulating Prisons Of The Future: A
Psychological Analysis Of Supermax And Solitary Confinement, 23 N.Y.U.
Rev. L. & Soc. Change 477 (1997) citing American Psychiatric
Association, Task Force Report 22: Seclusion and Restraint: The
Psychiatric Uses (1985)
- 73.
See Eva Edelman, Natural Healing for Schizophrenia: a Compendium of
Nutritional Methods (1996)
- 74.
Id at 26
- 75.
T.A. Ban, Nicotinic Acid In The Treatment Of Schizophrenias: Practical
And Theoretical Considerations, 1 Neuropsychobiol. 133-4 (1971); T.A.
Ban and H.E. Lehman, Nicotinic Acid In The Treatment Of
Schizophrenias, 5 Canadian Psychiat. Assn. J. 15 (1970)
- 76.
Edelman, supra note 73 at 21.
- 77.
Id at 83-100
- 78.
Edelman identifies histamine imbalances, Pyroluria, allergies, sugar
imbalances among other biotypes for which particular treatment must be
tailored. Id at 1
- 79.
Nancy Menapace and E. Mark Stern, Contact Improvisation: Its Potential
for a Therapy of Movement: A Conversation/Dialogue Between Nancy
Menapace and E. Mark Stern, in Integrating Exercise, Sports, Movement,
and Mind, 45 (Kate F. Hays ed. 1998)
- 80.
Peter R. Breggin, Toxic Psychiatry 384 (1991)
- 81.
Nelson, supra note 1, at 373
- 82.
Id.
- 83.
Nelson, supra note 1, at 374
- 84.
See Breggin, supra note 80, at 384.
- 85.
Id.
- 86.
Id. at 385. This unorthodox method of treating schizophrenics without
psychotropic medication showed, in controlled studies, to result in
less future need for medication, higher occupational levels, and a
more independent lifestyle. Id.
- 87.
See e.g. Winnefred Gallagher, The Power Of Place: How Our Surroundings
Shape Our Thoughts, Emotions, And Actions, 49 (1993) ("depression
caused by light depravation can affect the homebound, hospitalized,
and submariners just like a winter in Alaska")
- 88.
Id, at 48
- 89.
Id.
- 90.
Nelson, supra note 1, at 374
- 91.
Id.
- 92.
Alexander Brooks, The Right to Refuse Antipsychotic Medication: Law
and Policy, 39 Rutgers L.Rev. 339, 368 (1987)
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