A Call for a New Look at the Legal Foundation of Mental Health Law — Ron Thompson — January 21, 1994

I am grateful for the opportunity to speak even briefly to a group of P&A leaders. The reason is threefold: First, because I think the reality of mental health Law is largely misunderstood by most of the advocacy community. Second, because the role of legal thinking — that ambiguously valued product of a law school education — is larger in the Protection and Advocacy System than in any other group concerned with mental health issues.

And Third, because of something very curious about this whole field. Due to the seismic tremors set in motion by national health care reform, very great change — in one way or the other — IS going to come to all groups involved in the mental health system. And yet there seems to be something completely frozen at the beginning of any analysis of mental health issues. I am tempted to compare it to the stilted and frozen state of official thinking in the Soviet Bloc before the collapse of the Iron Curtain in 1989. But there is this added element of immobility in our field; for the threshold thinking or assumptions outside the areas of official responsibility seem AS frozen as the thinking inside those areas.

The comments I wish to make are a little blunt. They are not intended in a spirit of self-righteous criticism, or strident demand. Rather, they are a plea for your willing reconsideration of threshold issues in mental health Law. In recent months, some of these comments have been directed at ex-patient advocates rather than mental health lawyers, for the reason it seems unfair to ask you to reconsider these issues if most of us can't. — Unless, however, the question of leadership, and the expertise supposed to result from attorney status, overtakes that consideration.

First, let me state, and even overstate in order to set up a reference point, a certain view of the current scene by an ex-patient who is also a member of the Bar. This is the view that there is nothing — absolutely nothing — under any state or federal law, or the Constitution, that offers a genuine or reliable Right of refusing unwanted PSYCHIATRIC intervention to those most at risk of such intervention (I’ll emphasize here, and for the rest of these comments, that I am not discussing unwanted interventions in the name of a violation of any criminal law or for the purpose of social control, but only to involuntary interventions legally justified as a psychiatric benefit to the person subjected to them).

Indeed, for a reason I will hasten to add, I would argue that mental health Law today is MORE dangerous and oppressive than the most aggressive rationalizations of forced treatment by psychiatrists.

The major POLITICAL reason for this harsh conclusion — there are more major Legal reasons as well — is that there is a small minority of psychiatrists and other mental health professionals who are profoundly troubled by the direction of their profession. Who are deeply distressed by its pursuit, in their view, of a biological mirage, and who are speaking and writing about their concerns.

But there is no similar minority of lawyers who are troubled by the Law's unquestioning acceptance of the doctrine of forced treatment. Even those attorneys regarded by themselves and many patients as strong and right-minded advocates, go no further than a sophisticated — or perhaps convoluted examination of the APPLICABILITY of forced treatment. They do not question the PRINCIPLE itself.

To repeat — and to get the bluntest comments out of the way early — not one practicing lawyer to my knowledge, in any chapter of the American Civil Liberties Union, at the Bazelon Mental Health Law Center, in the National Association of Rights Protection and Advocacy, or even, alas, in any state Protection and Advocacy system, is willing to get up in public, and say, however tentatively — provisionally — skeptically, "There MIGHT be something wrong with the doctrine of forced treatment; there MIGHT be something wrong with the doctrine of Substituted Judgment as applied to involuntary mental patients; there MIGHT be something wrong with the conception of Due Process of Law as applied to mental patients — that just MAYBE Due Process in this area of the law raises questions not only of Procedural, but also Substantive, law."

Going a step further, I do not know of a single lawyer in any state, or the federal legislature, or in the executive branch, who will make any of these modest and hypothetical statements. None of these statements have ever been made, even as dicta (i.e. random musings for non—lawyers), by any judge, in any court ruling, in all of United States history, to my knowledge. Put still another way, EVERY lawyer and EVERY judge in the country, to the best of my knowledge, feels that in an 'appropriate' psychiatric emergency, it is morally legitimate to drug, and do anything else necessary, to subdue that person in the name of medical treatment, to the exclusion of any other legal rationale for such a physical assault.

And yet — and yet — when one little change is made in the doctrine of forced treatment, I personally have found every-one who approves or accepts this doctrine uncomfortable with it, along a spectrum ranging from vague uneasiness to real guilt. EVERYONE. The little change which produces this universal discomfort is to suggest the doctrine is NOT an indivisible concept, but a simplistic fusion, from an ancient and more primitive era of law, of two SEPARATE components, Force and Treatment. Components which are not only different, but antagonistic to each other when viewed dispassionately by the Common Sense of a later age, and not simply uncritically swallowed. It has been my repeated experience that once this separation is made between these two components, even dedicated and defiant defenders of forced treatment pause, become uncertain, and for at least a brief time, ideologically disintensified.

Strangely, no public discussion of this 'little change' in the anciently established legal doctrine of forced treatment seems EVER to have taken place. There has never been an advocacy conference, or any individual speech by a lawyer or anyone else at such conferences, which has ever discussed this doctrine except as an 'up or down' proposition pro or con, i.e. as a unitary and indivisible concept.

The closest I know of any lawyer who has approached that discussion was in a 1972 book, Prisoners of Psychiatry, written by the founding director of what is now the Bazelon Center for mental health Law. However, no whisper of that attitude has existed in that organization for many years.

The closest non-lawyer approach to questioning the doctrine of Forced treatment was a three-part conference on Involuntary Interventions which took place over the years 199092, sponsored improbably enough by the Community Support Program of NIMH. These discussions were serious and articulate, ground-breaking in the diversity of their participants and the equality of status accorded to former patients. These discussions are about to be published in book form. But even this unprecedented effort, although it often damned forced treatment, stopped short of explicitly questioning the principle, or suggesting a replacement to it in legal language.

A new conference on involuntary treatment is scheduled for May of this year, but apparently once again, the automatic reflex operating against any thaw in thinking about the central reality of the mental health system has taken place. For the preliminary schedule to this meeting reveals no place for the idea that there MIGHT be something wrong with the doctrine of forced treatment.

Two semi-sociological observations come to mind as the reasons for this failure of focus, one involving lawyers and one involving ex-patient advocates. First, too many lawyers seem to regard the current state of the LAW (in any field) as establish-ing a sort of fenced-in compound in their minds, beyond which they do not ask, does this seem Right or Wrong to me personally? A more provocative way to say this is that whatever is legal is assumed to be moral.

Such individuals seem to have learned or understood little of American legal history. If the constitutional legality of slavery, and the denial of votes to women — two legal reali-ties once imbedded in the warp and woof of American society — can be overcome, so can the doctrines of Emergency or Substituted Judgment forced treatment.

A second observation concerns former-patient advocates, who seem to practice a reversal of the axiom that, to a person walking around with a hammer, everything looks like a nail. That is, perhaps because few ex-patients become lawyers, NOTHING looks like a nail. In other words, we get a great deal of advo-cacy that passionately deals with everything EXCEPT the most basic doctrine of mental health Law.

Put these two unfortunate ingredients together, and you get a kind of negative Witches' Brew of complicated avoidance and resolute inaction. Stated the other way round, we see a great deal of speeches and forgettable articles, NONE of which actually engage what would have to be altered or abolished if any moral change worth the name is to occur.

One example of this situation stands out above others. For if it is true that under either branch of the Doctrine of forced treatment, people DON'T HAVE even a theoretical right to be free of forced treatment, constant talk by attorneys and ex-patients about advocating for or protecting people’s "rights" deflects attention from legal reality, profoundly misleads opponents of involuntary psychiatry, and gives aid and comfort to all supporters of involuntary psychiatry — who simply jump up and say, "We’re for patient rights too"!

There is a major political result to ignoring or misunderstanding the legal meaning of forced treatment. That once the elastic standard of a 'psychiatric emergency' is met, no one has a right to refuse a psychiatric assault presumed as a matter of law to be in their medical interest. What this means is that all of society beyond the interest groups which make up the mental health system is forever allowed to complacently think that locking people up, secluding and restraining them, and forcing dangerous drugs on them, perhaps for a lifetime, is ESSENTIALLY (apart from individual glitches now and them) a medical, and not a political act.

Thus the INHERENT indignity of this process is not only depoliticized, but rendered essentially invisible. It seems endlessly startling that lawyers so easily give up their birth-right, and surrender the concept of the Rule of Law to the Rule of Involuntary Medicine, however dressed up that growing sovereignty is in legal verbiage.

A last thought.

There's a news phenomenon of recent days which speaks powerfully to these issues. I refer to the stories about the radiation experiments that took place in response to the birth of the Atomic Age, and the onset of the Cold War, Two reactions to these stories come to mind.

The first is anger at the many rationalizations by so—called bio-ethicists for what doctors and scientists did to members of vulnerable populations, when asked by reporters about the emerging information. Complacent and exonerative comments by these individuals almost discredit in my mind the very idea of Bio—Ethics as a discipline worthy of respect.

The second reaction followed the reading of those commentators who were scornfully appalled by what a new chapter of America's secret history is revealing. Citing post—World War II United Nations resolutions and other legal sources, they grounded their criticism in the ignoring, or abuse, of the principle of Informed Consent by the various types of professionals involved.

In thinking about the nature of the moral wrong of these radiation experiments, something occurred to me about the legal doctrines which justify Forced Treatment of mentally ill persons. That is, either the 'hot-blooded' version of Emergency forced treatment, or the 'cold-blooded' version, of Substituted Consent, the latter tortuously developed by lawyers and judges, and which has spawned a whole genre of conclusory articles by self—justifying psychiatrists.

What impressed me, and what I hope you will ponder, is how destructive these two doctrines are of the VALUES behind the principle of Informed Consent, humanistic values of respect for the physical and decisional integrity of persons, and the importance of RESTRAINT in the exercise of professional expertise. For what could be a more effective assault on these values than to posit the non—existence of a deciding human being, and then make a decision based on the unexamined conflicts of interest between the persons authorizing and exercising 'substituted judgment', and the (now) non-person acted upon.

However well this doctrine may work with regard to tangible interests which are either external to the person, or based on uncontroversial facts in physical medicine, the interests served are radically different her, where State of Mind and interpersonal responsibility are at issue. In short, it would be hard to think of a better way to subvert professional self-vigilance, than by lawyers and psychiatrists half-consciously colluding in an enterprise which should be viewed as inherently morally unsavory.

For myself, I can't think of any way for the Law to protect or recover its integrity in this area, than to consider a different and more honest rationale for involuntary intervention. If an individual's self-control, whether framed as 'dangerousness to self or others' or some even vaguer and lower threshold, is at issue, we must at least think about some other right of intervention than that it is based on that person's medical benefit, no matter how much they protest.

In a back-handed kind of way I suppose, the very strength of the refusal to consider the interests really being served by the doctrine of forced treatment, is a tribute to the underlying humanity of those who avert their attention, and consciences, from this analysis. If there weren't some sort of an instinct of the moral dynamite involved, surely there wouldn't be such a dogged refusal to discuss the foundations of this doctrine.

And so I ask each of you to turn this issue over in your own minds in a manner perhaps not done before, and then consider saying in public, even if only in a devil's advocate kind of way, "There MIGHT be something wrong with the doctrine of Forced Treatment." For it may be nothing can begin without that sentence"... and everything is lost without it.



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