OPEN A NOTE
ON
OF
DONALDSON
THE
It E. Reinert,
THE
FORUM
MEANING DECISION
M.D.
IThe fact that the legal outcome of the O’Connor v. Donaldson case was hailed as a great breakthrough in the crusade for the rights of the mentally ill reveals how far apart is the understanding of the issues held by psychiatrists and some patients’ rights advocates. Donaldson was an involuntarily committed hospitalized patient who took legal action against his ward psychiatrist and the hospital superintendent for holding him without treatment long after he was apparently able to care for himself. The case went to the Supreme Court when the superintendent appealed the judgment for punitive damages against him. The court held that “A state cannot constitutionally confine without more [presumably treatment] a nondangerous individual who is capable of surviving in freedom by himself or with the help of willing and responsible family members or friends” (1). The case is significant primarily because it was the first concerning the constitutional rights of a committed patient to reach the Supreme Court in the current climate of active concern for patients’ rights. The case is not significant, however, for another major claim that is made for it; namely, that it will free hoards of mentally ill from the clutches of incompetent or vindictive psychiatrists. That will not occur because the Donaidsons have been virtually an extinct species since the hospital reform movement of the sixties. The reform movement was characterized by open wards, shorter lengths of stay, and maximum use of community support facilities where they existed. There is no incompatibility between the principles enunciated by the Supreme Court in Donaldson and those that have guided the operation of modern mental hospitals for the last 15 years. Even not very richly endowed hospitals, which may have left much to be desired in other respects, have at least had their philosophy right. Yet in a recent book, Bruce Ennis, whose opinions are especially significant as the legal director Dr.
Reinert
ter, St. Cloud,
is director
Minnesota
of
the
56301.
Veterans
Administration
Medical
Cen-
of the American Civil Liberties Union and as one of Donaldson’s attorneys, writes, “Given Donaldson, it seems clear that the judicial pressures psychiatrists have felt in the past few years are insignificant compared to the judicial pressures they will feel in the years to come” (2). How else can that statement be interpreted, except to assume that he misunderstands what hospital psychiatrists have been trying to do in recent years? On reading the Donaldson decision, a psychiatrist can imagine his colleagues shouting, “Hear! Hear!” at each step of the court’s reasoning: “Even if involuntary confinement of mental patients was initially permissible, it could not constitutionally continue after that basis no longer existed.” “A finding of ‘mental illness’ alone cannot jUstify a state’s locking up a person against his will and keeping him indefinitely in simple custodial confinement; there is no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.” “State may not confine the mentally ill merely to insure them a living standard superior to that they enjoy in the private community.” “State may not confine the harmless mentally ill solely to save its citizens from exposure to those whose ways are different.” “Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.” “A state cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends” (1). The court explicitly recognized the narrowness of the decision. “We have concluded that the difficult issues of constitutional law dealt with by the court of appeals are not presented by this case in its present posture. Specifically, there is no reason now to decide whether mentally ill persons dangerous to themselves or to others have a right to treatment upon compulsory confinement by the state, or whether the state may cornpulsively confine a nondangerous, mentally ill individual for the purpose of treatment.” In other words, all the Supreme Court said was that a
VOLUME
30 NUMBER
8 AUGUST
1979
563
ill person who can get along outside a hospital be hospitalized without treatment. Attempts to stretch the decision to imply that dangerousness to self or others is a necessary condition cannot be justified, as mentally
REFERENCES
cannot
Ennis
attempts
to
do
when
he
writes,
“The
Supreme
Court apparently believes that involuntary confinement simply because of mental illness and the need for treatment is not constitutionally justified. There must be proof of some degree of danger to self or others” (2). The current national trend to make imminent danger a condition of civil commitment finds little to go on in the Supreme Court decision. The definition of dangerousness
to
decision
self
is not
quoted
as part
basically
of the
different
district
from
that
judge’s
would
disagree.
The
court
simply
for the state to confine a person where the person is to be confined) his benefit requires that the person by due criminal
process. law.
That,
to me,
is no
out
that
(and it doesn’t say and do nothing for be found dangerous than
traditional
In view of the limited nature of the decision, why are more courts insisting that criteria for commitment be “imminent danger to self or others?” I think it is because of the implication in Donaldson that if the mentally ill person is found dangerous, he can be confined without treatment, therefore relieving the court of the obligation to be sure treatment is really available. It would be well if we would all stop using the word “dangerous” in the two senses of “to others” or “to self.” As frequently stated by critics of psychiatry, the former can’t be predicted and the latter is hard to define. A different word for those who, because of mental illness, show gross incompetence to care for themselves would prevent all of us from slipping back and forth between the two meanings. Some
critics
confusion about
about into
theses
of institutional
which that
psychiatry
have
dangerousness got
more
they attention
parlayed
were than
talking they
de-
served (2-6). They assert, first, that the basis of commitment has been and is dangerousness, and since violent aggression against others by someone who has not repeatedly been violent cannot be reliably predicted, the commitment process itself is invalid. Of course, the obvious flaw in their reasoning is that except those
for who
the are
so-called civilly
criminally committed
insane, are
harmless
the
bulk
of
to others.
Because of illness, they fail to take care of their own needs for food, clothing, health, safety, or medical care and therefore must have something done for them. Conclusions drawn from observations made about those alleged to be dangerous to others simply cannot be applied to the majority of seriously mentally ill.
564
HOSPITAL
& COMMUNITY
Donaldson, “Judicial
422 U.S. Involvement
563(1975). in Public
Practice,”
in Law
Summer
1976, pp. 1084-1101.
5) B. Rubin, nals,” Archives 397-407.
“Prediction of General
6) A. M. Dershowitz, Psychology
of Dangerousness Psychiatry, Vol.
“The Today,
27,
in Mentally September
Psychiatrist’sPower February
1969,
pp.
in
Ill Crimi1972, pp. Civil
Com-
43-46.
commonly
points
more
V.
and the Mental Health Professions, W. E. Barton and C. J. Sandborn, editors, International Universities Press, New York City, 1978. 3) B. J. Ennis and T. R. Litwack, “Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom,” California Law Review, Vol. 62, May 1974, pp. 693-711. 4) J. J. Cocozza and H. J. Steadman, “The Failure of Psychiatric Predictions of Dangerousness,” Rutgers Law Review, Vol. 29, Late
mitment,”
written into state laws. It states, “Even if there is no foreseeable risk of self-injury or suicide, a person is literally dangerous to himself if for physical or other reasons he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends.” If that is what is meant by dangerousness, few psychiatrists
1) O’Connor 2) B. J. Ennis,
PSYCHIATRY
DISPELLING SURROUNDING Irving
THE
MYTHS MENTAL
ILLNESS
Blumberg
#{149}inumber of common myths and half-truths concerning the nature and treatment of psychiatric disorders, the role of psychiatry, and the optimal settings for providing mental health services have permeated much of the professional and popular literature in the mental health field. Among these myths are the following: . The myth that mental illness is a myth-a false notion fostered by a few so-called “experts” afflicted with tunnel vision. This is a myth that has created considerable confusion among the lay public and even some circles of psychiatric sophisticates. Unfortunately mental illness is no myth, but a tragic reality. . The myth that psychiatric treatment, to have any value, must effect total cures. That can no more be expected of psychiatrists than to expect other medical specialists, dealing with a variety of physical disorders, to achieve complete success in their treatments. . The myth that treatment must always precede rehabilitation, and must be successfully completed before instituting rehabilitative efforts. In actual practice, treatment and rehabilitation go hand in hand, interact, and either one can follow or precede the other. There is no single successful method to follow. S The myth that treatment and rehabilitation are one and the same-that treatment is rehabilitation, and rehabilitation is treatment. We know there are common elements as well as unique differences in the two concepts and practices. Strictly defined, treatment seeks to alleviate or eliminate, through medical, psychological, and other processes, disordered cognition, emotions, or behavior, and to relieve distress, suffering, and anxiety. Rehabilitation, while sharing some of these goals, is designed primarily and directly to restore a person’s capacity to function, or, as in habilitation, to help an indiMr. Blumberg is executive vice-president mittee Against Mental Illness, Box 898, New York 10023.
of the Ansonia
International Station, New
CornYork,
ON
OF
DONALDSON
THE
It E. Reinert,
THE
FORUM
MEANING DECISION
M.D.
IThe fact that the legal outcome of the O’Connor v. Donaldson case was hailed as a great breakthrough in the crusade for the rights of the mentally ill reveals how far apart is the understanding of the issues held by psychiatrists and some patients’ rights advocates. Donaldson was an involuntarily committed hospitalized patient who took legal action against his ward psychiatrist and the hospital superintendent for holding him without treatment long after he was apparently able to care for himself. The case went to the Supreme Court when the superintendent appealed the judgment for punitive damages against him. The court held that “A state cannot constitutionally confine without more [presumably treatment] a nondangerous individual who is capable of surviving in freedom by himself or with the help of willing and responsible family members or friends” (1). The case is significant primarily because it was the first concerning the constitutional rights of a committed patient to reach the Supreme Court in the current climate of active concern for patients’ rights. The case is not significant, however, for another major claim that is made for it; namely, that it will free hoards of mentally ill from the clutches of incompetent or vindictive psychiatrists. That will not occur because the Donaidsons have been virtually an extinct species since the hospital reform movement of the sixties. The reform movement was characterized by open wards, shorter lengths of stay, and maximum use of community support facilities where they existed. There is no incompatibility between the principles enunciated by the Supreme Court in Donaldson and those that have guided the operation of modern mental hospitals for the last 15 years. Even not very richly endowed hospitals, which may have left much to be desired in other respects, have at least had their philosophy right. Yet in a recent book, Bruce Ennis, whose opinions are especially significant as the legal director Dr.
Reinert
ter, St. Cloud,
is director
Minnesota
of
the
56301.
Veterans
Administration
Medical
Cen-
of the American Civil Liberties Union and as one of Donaldson’s attorneys, writes, “Given Donaldson, it seems clear that the judicial pressures psychiatrists have felt in the past few years are insignificant compared to the judicial pressures they will feel in the years to come” (2). How else can that statement be interpreted, except to assume that he misunderstands what hospital psychiatrists have been trying to do in recent years? On reading the Donaldson decision, a psychiatrist can imagine his colleagues shouting, “Hear! Hear!” at each step of the court’s reasoning: “Even if involuntary confinement of mental patients was initially permissible, it could not constitutionally continue after that basis no longer existed.” “A finding of ‘mental illness’ alone cannot jUstify a state’s locking up a person against his will and keeping him indefinitely in simple custodial confinement; there is no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.” “State may not confine the mentally ill merely to insure them a living standard superior to that they enjoy in the private community.” “State may not confine the harmless mentally ill solely to save its citizens from exposure to those whose ways are different.” “Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.” “A state cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends” (1). The court explicitly recognized the narrowness of the decision. “We have concluded that the difficult issues of constitutional law dealt with by the court of appeals are not presented by this case in its present posture. Specifically, there is no reason now to decide whether mentally ill persons dangerous to themselves or to others have a right to treatment upon compulsory confinement by the state, or whether the state may cornpulsively confine a nondangerous, mentally ill individual for the purpose of treatment.” In other words, all the Supreme Court said was that a
VOLUME
30 NUMBER
8 AUGUST
1979
563
ill person who can get along outside a hospital be hospitalized without treatment. Attempts to stretch the decision to imply that dangerousness to self or others is a necessary condition cannot be justified, as mentally
REFERENCES
cannot
Ennis
attempts
to
do
when
he
writes,
“The
Supreme
Court apparently believes that involuntary confinement simply because of mental illness and the need for treatment is not constitutionally justified. There must be proof of some degree of danger to self or others” (2). The current national trend to make imminent danger a condition of civil commitment finds little to go on in the Supreme Court decision. The definition of dangerousness
to
decision
self
is not
quoted
as part
basically
of the
different
district
from
that
judge’s
would
disagree.
The
court
simply
for the state to confine a person where the person is to be confined) his benefit requires that the person by due criminal
process. law.
That,
to me,
is no
out
that
(and it doesn’t say and do nothing for be found dangerous than
traditional
In view of the limited nature of the decision, why are more courts insisting that criteria for commitment be “imminent danger to self or others?” I think it is because of the implication in Donaldson that if the mentally ill person is found dangerous, he can be confined without treatment, therefore relieving the court of the obligation to be sure treatment is really available. It would be well if we would all stop using the word “dangerous” in the two senses of “to others” or “to self.” As frequently stated by critics of psychiatry, the former can’t be predicted and the latter is hard to define. A different word for those who, because of mental illness, show gross incompetence to care for themselves would prevent all of us from slipping back and forth between the two meanings. Some
critics
confusion about
about into
theses
of institutional
which that
psychiatry
have
dangerousness got
more
they attention
parlayed
were than
talking they
de-
served (2-6). They assert, first, that the basis of commitment has been and is dangerousness, and since violent aggression against others by someone who has not repeatedly been violent cannot be reliably predicted, the commitment process itself is invalid. Of course, the obvious flaw in their reasoning is that except those
for who
the are
so-called civilly
criminally committed
insane, are
harmless
the
bulk
of
to others.
Because of illness, they fail to take care of their own needs for food, clothing, health, safety, or medical care and therefore must have something done for them. Conclusions drawn from observations made about those alleged to be dangerous to others simply cannot be applied to the majority of seriously mentally ill.
564
HOSPITAL
& COMMUNITY
Donaldson, “Judicial
422 U.S. Involvement
563(1975). in Public
Practice,”
in Law
Summer
1976, pp. 1084-1101.
5) B. Rubin, nals,” Archives 397-407.
“Prediction of General
6) A. M. Dershowitz, Psychology
of Dangerousness Psychiatry, Vol.
“The Today,
27,
in Mentally September
Psychiatrist’sPower February
1969,
pp.
in
Ill Crimi1972, pp. Civil
Com-
43-46.
commonly
points
more
V.
and the Mental Health Professions, W. E. Barton and C. J. Sandborn, editors, International Universities Press, New York City, 1978. 3) B. J. Ennis and T. R. Litwack, “Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom,” California Law Review, Vol. 62, May 1974, pp. 693-711. 4) J. J. Cocozza and H. J. Steadman, “The Failure of Psychiatric Predictions of Dangerousness,” Rutgers Law Review, Vol. 29, Late
mitment,”
written into state laws. It states, “Even if there is no foreseeable risk of self-injury or suicide, a person is literally dangerous to himself if for physical or other reasons he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends.” If that is what is meant by dangerousness, few psychiatrists
1) O’Connor 2) B. J. Ennis,
PSYCHIATRY
DISPELLING SURROUNDING Irving
THE
MYTHS MENTAL
ILLNESS
Blumberg
#{149}inumber of common myths and half-truths concerning the nature and treatment of psychiatric disorders, the role of psychiatry, and the optimal settings for providing mental health services have permeated much of the professional and popular literature in the mental health field. Among these myths are the following: . The myth that mental illness is a myth-a false notion fostered by a few so-called “experts” afflicted with tunnel vision. This is a myth that has created considerable confusion among the lay public and even some circles of psychiatric sophisticates. Unfortunately mental illness is no myth, but a tragic reality. . The myth that psychiatric treatment, to have any value, must effect total cures. That can no more be expected of psychiatrists than to expect other medical specialists, dealing with a variety of physical disorders, to achieve complete success in their treatments. . The myth that treatment must always precede rehabilitation, and must be successfully completed before instituting rehabilitative efforts. In actual practice, treatment and rehabilitation go hand in hand, interact, and either one can follow or precede the other. There is no single successful method to follow. S The myth that treatment and rehabilitation are one and the same-that treatment is rehabilitation, and rehabilitation is treatment. We know there are common elements as well as unique differences in the two concepts and practices. Strictly defined, treatment seeks to alleviate or eliminate, through medical, psychological, and other processes, disordered cognition, emotions, or behavior, and to relieve distress, suffering, and anxiety. Rehabilitation, while sharing some of these goals, is designed primarily and directly to restore a person’s capacity to function, or, as in habilitation, to help an indiMr. Blumberg is executive vice-president mittee Against Mental Illness, Box 898, New York 10023.
of the Ansonia
International Station, New
CornYork,
