We Need Rational Involuntary Commitment Laws for Mentally Ill - Isaac/Jafffe - Mental Illness Policy Org
We Need Rational Involuntary Commitment Laws for Mentally Ill – Isaac/Jafffe 2017-02-01T11:50:21+00:00

Toward rational commitment laws: Committed to help

By Rael Jean Isaac and D. J. Jaffe

Mental illness is not a lifestyle; it is a disease that can lead to homelessness,violence, and death. But it can often be treated especially when the law isn’t in the way.

When a bundled-up middle-aged homeless woman-man named Yetta Adams was found dead at aWashington bus stop outside the Department of Housing and Urban Development in November1994, it was front-page news in papers from coast to coast. In the stories Miss Adams wascast as a victim of the nation’s callous housing policies-a martyr to affluent America’sindifference to the homeless. In the hours after her body was carted away, HUD SecretaryHenry Cisneros held a press conference to propose raising spending on homeless programsfrom $823 million to $1.5 billion a year.

But as James Glassman pointed out in Forbes Media Critic, Yetta Adams did not die fromlack of housing. She died from lack of treatment. She suffered from schizophrenia, aneurobiological disorder so profound that people who suffer from it-even as they talk backto voices only they can hear -often fail to recognize they are ill and therefore rejecttreatment. As a result, Miss Adams bounced from shelter to hospital to shelter. In herdisorientation she forgot to take the insulin she needed for her diabetes and there was noway for social workers, judges, or family members to force her to take the medicine thatwould have kept her alive. At bottom, she was a victim of laws that make it impossible totreat brain-disordered individuals against their will without proof that they aredangerous to themselves or others-at which point they may be dead.

While Cisneros was lamenting Yetta Adams’s fate, federally funded lawyers were workingto make sure there would be many more victims like her. In each state Congress fundsProtection and Advocacy programs (P&As) whose mandate is to prevent abuse and neglectof individuals with mental illness. But many are staffed by civil-libertarian lawyers andradical ex-patients who view schizophrenia as an alternative lifestyle and considertreatments that alleviate it a form of abuse. These people are caught in a time warp,impervious to the scientific consensus that major mental illnesses, notably schizophrenia,manic-depressive psychosis, and clinical depression, are brain diseases-and, like otherdiseases, they can be treated. During the last two decades there has been a revolution inthe neurosciences which has produced new ways of studying the brain through neuroimagingtechniques like MRI (magnetic resonance imaging), CT (computerized tomography), and PET(positron emission tomography). Particularly important are ongoing studies, conducted bythe National Institute of Mental Health’s Neurosciences Center, of identical twins onlyone of whom has schizophrenia. (In a high proportion of cases, if one identical twin hasschizophrenia, the other is also afflicted, pointing to a strong genetic component in thedisease.) MRI scans show striking differences between the sick and well twins, among themlarger ventricles in those with schizophrenia (implying that missing tissue has beenreplaced by cerebrospinal fluid), wider cortical sulci, spaces in the foldings at thesurface of the cortex (suggesting atrophy or failure of brain cells to develop), andreduction in the size of the left temporal lobe and the front part of the hippocampus.

As researcher Dr. Fuller Torrey puts it: “Based on studies of gross pathology,neurochemistry, cerebral blood flow, and metabolism, as well as electrical, neurological,and measures, schizophrenia has been clearly established to be a brain disease just assurely as multiple sclerosis, Parkinson’s disease, and Alzheimer’s disease are establishedas real brain diseases.”

Unfortunately, our laws and public policy are founded not on this scientific consensusbut on destructive ideas from the Left and the Right that became fashionable in themilitantly anti-institutional climate of the 1960s. British psychiatrist Ronald Laing, acounter-cultural guru, popularized the notion of schizophrenia as analogous to an LSDtrip, a “voyage of discovery” leading to higher forms of perception and “anatural way of healing our own appalling state of alienation called normality.” Fromthe Libertarian Right came Dr. Thomas Szasz, who disposed of mental illness by verbalsleight of hand.” Mental illnesses do not exist; indeed they cannot exist, becausethe mind is not a bodily part or bodily organ.” A number of sociological studies– Erving Goffman’s Asylums was the most famous-supported these notions – byfalsely suggesting that the symptoms of mental illness were to a large extent produced byinstitutions that were meant to cure it. They suggested that mental patients neededlawyers, not doctors. And in the late 1960s and early 1970s, a group of public-interestlawyers created an informal mental-health bar. Bruce Ennis, widely regarded as the fatherof that bar, spoke candidly of his target. “My personal goat is either to abolishinvoluntary commitment or to set up so many procedural roadblocks and hurdles that it willbe difficult, if not impossible, for the state to commit people against their will.”

To be fair to Szasz and those he inspired, in the 1960s the mental-health system badlyneeded reform. Vaguely worded commitment laws lent themselves to abuse. Huge numbers ofpeople were warehoused for life in understaffed and badly run state hospitals. Statebudgets were overwhelmed by the expense, and legislators were looking for a way out.Unfortunately, instead of rational reform, the way out turned out to be wholesale patientdumping. California led the way with the revolutionary Lanterman-Petris-Short Act of 1967,which set an arbitrary maximum of 17 days that a patient could be held involuntarily (orup to 90 days if he continued to be “dangerous”). There were no medical groundsto justify these time limits; there had been no pilot program; no one had any idea how thelaw would work. Yet the California legislature passed the LPS Act unanimously. Fiscalconservatives and civil libertarians made an unbeatable combination, holding out theprospect of saving money by doing good.

Other states followed suit. Part of the strategy of the mental-health bar in the 1970swas to sue to force expensive improvements in state hospitals in the correct expectationthat state governments would close them down or radically reduce their size rather thanmeet court-imposed standards. In 1974, an attorney in a “Mental Health Project”established by a federally funded legal-services program at Mississippi State Hospitalboasted of cutting the population there by a third in a single year. By 1990,state-hospital beds were down to 98,000, roughly a sixth of what they had been forty yearsearlier. The number of psychiatric beds in general hospitals increased in this period, butin both cases there was no way to keep people who needed treatment inside.

All too many of these people spiraled downward to the streets, where they learned toabuse drugs and alcohol. Judy Pritchett, former clinical director for Project Reachout inNew York City, says: “Every day we are seeing more and more people with addictions tocrack cocaine, alcohol, and other substances. It’s a dramatic increase. And the presenceof these problems makes it harder and harder to reach these people.”

Increasingly, jails have become society’s institution of choice ‘people with braindiseases. A recent study sponsored by the National Alliance for the Mentally Ill andPublic Citizen found that 7.2 per cent of the jail population has a mental illness. Putanother way, every day more than 30,000 individuals are serving time in jail, most formisdemeanors directly stemming from their illness. Fuller Torrey, the study’s lead author,says: “The police have their hands tied by the dangerousness standard, so they areundertaking ‘mercy bookings,’ charging individuals with small crimes just to get them intojail and treatment. Unfortunately in many cases they are victimized in jail by the regularinmates and get no treatment.” On the street, the untreated may become trulydangerous, especially when they abuse drugs. While old studies which still quoted thatclaim mentally ill people are less violent than the general population, they wereconducted at a time when the most seriously ill were in hospitals. John Monahan of theUniversity of Virginia Law School writes: “The data that have recently becomeavailable, fairly read, suggest the one conclusion I did not want to reach … Mentaldisorder may be a robust and significant risk factor for the occurrence of violence.”

The widespread notion that the primary cause of homelessness is lack of housingprompted Alice Baum and Donald Birnes, outreach workers to the homeless in Washington,D.C., to write a book called A Nation in Denial. They point out that somewhere between 65and 85 percent of the homeless population suffers from chronic alcoholism, drug addiction,severe psychiatric disorders, or a combination of the three. Most researchers agree, theywrite, “that at least one-third of the homeless suffer from severe and persistentchronic psychiatric disorders such as schizophrenia and manic depression; the proportionmay be as high as one-half.”

But the denial is starting to break down. A number of states have changed theircommitment- laws, supplementing the usual standard requiring the patient to be dangerousor “gravely disabled” with a “need for treatment standards” whichpermits treatment if the person has a severe mental disorder that will predictably resultin his deterioration and lacks the capacity to make informed decisions on treatment as aresult of his illness. However, this does not mean a return to the bad old days whenmental illness was vaguely defined and patients could be confined in mental hospitalsindefinitely. Today’s existing strict procedural safeguards-including the patient’s rightto an attorney, prompt judicial hearings, and periodic judicial review-remain in place,ensuring that no one is heedlessly abandoned to a hospital’s back wards.

One-third of the homeless suffers from psychiatric disorders such as schizophrenia and manic depression; the proportion may be as high as one –half.

Efforts to reform the law typically start with statewide family/patient groups, many ofthem affiliated with the National Alliance for the Mentally Ill, in Arlington, Virginia.One of those leading the effort to change the law in California is Carla Jacobs, whosementally ill sister-in-law Victoria Jacobs Madeira dressed her 11 year-old son in girl’sclothes, drove with him seventy miles to her parents’ home, and stabbed and shot to deathher 78-year-old mother. The family had repeatedly sought. to have Mrs. Madeira, who livedin a parking lot with her son ,and rummaged through dumpsters for food, committed fortreatment, but mental-health authorities ruled she was not dangerous.

Civil-libertarian lawyers have successfully, opposed reform efforts in many states, butreformers may be gaining a new ally in the judiciary. In September 1994, Justice SalvadorCollazo of the New York State Supreme Court ruled that the family of John Winter-a77-year-old usher at St. Patrick’s Cathedral, who had been bludgeoned to death by JorgeDelgado, a mentally ill man-could sue Bellevue Hospital, which had repeatedly treated andreleased Delgado. Judge Collazo acknowledged that he was flying in the face of establishedcase law. Nonetheless, he ruled: “The cyclical pattern exemplified here ofadmittance-drug treatment-release-psychosis-readmittance-drug treatment-release, etc.,although widely accepted as the modern approach to rehabilitating mentally ill persons, isunreasonable, since released mental patients (without medication and/or supervision) do(sic) violence to themselves and to others. Unsupervised and unmedicated, Mr. Delgado wasa tragedy waiting to happen.”

A particularly important innovation is outpatient commitment. Most patients do not needlong-term institutional care. The problem is that many of those who respond to medicationsstop taking them once they are out of the hospital, and relapse. Requiring these people,if they have a history of dangerousness, to take medication as a condition for remainingin the community is the obvious answer.

All states now make outpatient commitment possible (New York was the last holdout).However, a problem with these programs has been the absence of legal means forenforcement. The judge orders a patient to take medication, but if he subsequentlyrefuses, he can be compelled to do so only if he meets the commitment standard in moststates, that he be a danger to himself or others. But this defeats the whole purpose ofoutpatient commitment, which is to prevent the individual from getting to that point inthe first place.

Dane County, Wisconsin, has developed a program called “limited guardianship”for patients who cycled in and out of hospitals. An outpatient court-ordered to takemedication can be put in the hospital if he fails to comply. David LeCount, Mental HealthCoordinator for Dane County, says that this program, in combination with other forms ofoutreach, cut the number of days patients spent in hospitals by 75 per cent over threeyears. There is a precedent for forced treatment in the community: TB patients. Dr. Torreyobserves: “For an individual with tuberculosis and schizophrenia, in some states theindividual may be involuntarily treated for the tuberculosis but not for theschizophrenia.”

Unfortunately, many of the states, which have need-for-treatment standards in practice,continue to insist on dangerousness for commitment because those who implement these newlaws fear they are unconstitutional. But are they? The mental-health bar has argued thatonly the dangerousness standard is constitutional, generally citing a 1975 decision,O’Connor v. Donaldson. But Donaldson, who sued to be released from Florida State Hospital,was a well-functioning individual with a high degree of motivation, persistence, andintelligence. There were repeated offers, both from a half way house and a friend ofDonaldson’s, to provide a home and supervision for him. Paul Stavis, legal counsel to theCommission on Quality of Care for the State of New York, says that the mental-health barmisreads the Donaldson decision. Says Stavis: “In its decision, the Supreme Courtspecifically spoke of someone who could ‘live safely in freedom.’ The justices weren’tthinking of malnourished individuals lost in delusions lying on park benches in their ownwaste. I believe a well crafted need-for-treatment standard would be judged constitutionalby this Supreme Court.”

Let us hope he is right. Such a rational system will improve life for those who sufferfrom mental illness, not perpetuate their degradation as we do at present. Herschel Hardinwas director of the British Columbia Civil Liberties Association for nine years. Buthaving a son with schizophrenia, he learned that it was a grotesque distortion to justifyabandoning people to the ravages of this disease in the name of civil liberties. TodayHardin says: “The opposition to involuntary committal and treatment betray a profoundmisunderstanding of the principle of civil liberties. Medication can free victims fromtheir illness-free them from the Bastille of their psychoses – and restore theirdignity, their free will, and aid in the meaningful exercise of their liberties.”Exactly.

National Review

January 29, 1996

Reprinted with permission. Copyright 1996 by National Review, Inc., 215 Lexington Avenue, New York, NY 10016. All rights reserved.