OPINION
AND
COMMENT
Comment BY
ALAN
A.
STONE,
M.D.
DR. PESZKE presents a powerful and incisive argument that will surely strike responsive chords in the minds of many psychiatrists. He defines the medical treatment model for emergency civil commitment in a straightforward way and defends this position on humane and ethical grounds. I shall attempt to add some further perspective to what is in my estimation a basically sound but incomplete argument. Civil commitment of the mentally ill has always had two overlapping legislative justifications: protection for society and care and treatment of the individual. The former is a traditional police function, but psychiatrists have in fact performed this function for at least a century by committing persons because of their supposed danger to society. It would be ingenuous to suggest that psychiatrists have always used the power for emergency commitment simply or solely for the good of the patient. We have in fact acted as agents of social control to protect society from persons we thought dangerous. Furthermore, emergency commitment has been employed by psychiatrists for decades as a first step to commit nondangerous patients for an indefinite period of time to substandard and understaffed facilities where few received adequate treatment. These facts are well known, and no psychiatrist can argue that the medical model as a basis for making a decision on emergency commitment has ever been an unqualified success. But the more important question, and this is the sense in which Dr. Peszke’s paper should be read, is, Could it be? I think it can. I believe, however, that it may be too late, given the recent developments in litigation and legislation.’
THE
TREND
IN
LEGAL
REFORM
The thrust ofcurrent legal reform is to reject the medical model of imposing treatment for the person’s own good. Under law the medical model is justified by the doctrine of parens patriae. That doctrine is increasingly under attack as a basis for involuntary confinement.2 The
Dr. Stone is Professor of Law and Psychiatry, Faculty of Law and Faculty of Medicine, Harvard University, Cambridge, Mass. Address reprint requests to Langdell Hall, Harvard Law School, Cambridge, Mass. 02138.
‘See, for example, pital at Eloise (1).
the recent
case
of Bell
2See, for example,
the recent case of State
v Wayne
County
ex rel Hawks
General v Lazaro
Hos(2).
courts have held that deprivation of liberty must be based on an objective standard; they have turned in the spirit of reform to the standard of dangerousness, particularly dangerousness to others. Many states have precipitously adopted that standard in their statutes. Dr. Peszke warns that psychiatrists operating under that standard become nothing but agents of social control. He is obviously correct, but I believe the situation may be even worse than he states. Because I wish to draw attention to the emerging legal trends, I shall focus solely on an emergency commitment system in which dangerousness to others is the preeminent criterion. I have deliberately slighted the standard of dangerousness to self, which is quite pertinent. Its limited retention is indicative of the court’s unwillingness to totally abandonparenspatriae. Similarly, many states have retained the standard of gravely disabled, but this is a narrow category as currently interpreted. At the present time psychiatry lacks the capacity to identify dangerous patients with sufficient reliability to meet a court’s evidentiary test of either beyond a reasonable doubt (about 90 percent certainty) or clear and convincing proof (about 75 percent certainty) (3).3 There will, ofcourse, be rare cases in which a clinician feels confident enough to claim that degree of certainty, most often with patients who are dangerous to themselves. However, in most instances the psychiatrist challenged in a court of law would simply have no legal basis for emergency confinement. Stated simply, the law has now produced an unworkable standard. Let us assume, nonetheless, that some emergency commitment continues and that involuntary access to mental health care is based on the standard of dangerousness. The traditional psychiatric population with severe forms of treatable mental illness is rarely dangerous (3). Thus these individuals will no longer have access to involuntary mental health care. On the other hand, the population ofdangerous persons with diagnosable mental illness includes many who are either difficult to treat or untreatable (e.g., those with character disorders, sociopathy, or paranoid personality). The objective legal standard erected as the criterion will thus tend to select an untreatable patient population who will require maximum or at least increased security. A large concentration of this kind of patient will create
‘I have attempted cal concepts. The opinion of many.
to translate statistical
AmJ
evidentiary conversions
Psychiatry
standards might be
/32:8,
August
into even
rough higher
1975
statistiin the
829
OPINION
AND
COMMENT
havoc in mental health facilities and destroy the open hospital concept. If the trend is allowed to continue and develop, the emergency commitment facility will become a jail, and the psychiatrists, if they remain, will be the wardens. This scenario is already apparent in some hospitals. Ironically, this movement toward reform in the law will be constitutionally suspect as well as destructive of social resources. Ifcommitment is not based on treatability but on dangerousness, emergency commitment becomes almost nothing but preventive detention, which has, of course, been anathema to civil libertarians on a variety of constitutional grounds. Thus the progressivist rush to the standard ofdangerousness in emergency commitment creates an impossible evidentiary problem, confines the untreatable, destroys important social resources, and may well be unconstitutional. If psychiatrists recognize their limitations in the ability to predict dangerousness and the dangers of exercising such a police function, might it not be wise for them to refuse to participate in this bizarre creation of legal progress? I have painted the starkest possible picture because I believe it is important that psychiatry begin to articulate the costs of the current wave of legal reform in terms of the mental health care delivery system. Many have rushed to condemn the medical model, but it is time that we answered the lawyers with their own riposte to almost any question, e.g., How is your wife? Compared to what? The path of legal reform involves not only changing the standard for emergency civil commitment to dangerousness but also changing the procedures to guarantee due process. As Dr. Peszke points out, this means embellishing civil commitment with all of the due process safeguards of a criminal trial (4). This kind of reform may be good law, but whether it is a wise social policy remains to be seen. There is a critical perspective at the conceptual level to be derived from distinguishing two social functions of the criminal courts. The first of these is to serve as a forum for establishing a standard of guilt while respecting mdividual rights. The second is to serve as the most powerful decision-making body in a complex bureaucracy consisting of law enforcement, the courts, and the system of corrections-this bureaucracy is charged with controlling crime. When the system is examined from this latter perspective its failures become obvious; indeed, many believe that it is counterproductive. Is it realistic to assume that imposing one terrible system on another will be socially productive? Nonetheless, given the past record of civil commitment, some legal modification of the process is essential. Dr. Peszke does not address this problem because of his effort to narrow the focus of his article. However, he has pulled together certain ideas that are a foundation to build on. The important premises implicit in his thesis are as follows: 1. Mental illness exists, although its forms and manifestations may be culturally determined.
830
Am
J Psychiatry
132:8. August
1975
2. Severe mental illness interferes with individual autonomy and compromises the capacity of the individual to make rational decisions. 3. Psychiatrists are capable of reliably diagnosing severe mental illness and evaluating competency to make rational decisions about treatment. 4. The mentally ill who are thus incapacitated and incompetent to decide about treatment can in fact benefit from treatment.
THE
RIGHT
TO
TREATMENT
Assuming that these considerations are valid, dangerousness becomes an irrelevant criterion. On the other hand, the availability oftreatment becomes a crucial consideration. If all of the premises outlined above are correct when applied to a given patient but treatment is not available in the institution to which he is committed, the medical model becomes an empty promise. A valid application of the medical model demands that the right to treatment be established as a reality in each instance of emergency civil commitment and at the earliest possible moment. The physician and the court should not be deciding whether or not a person is dangerous.4 Rather, they should address the following question: Would a reasonable man in this situation give up this much freedom for this much treatment? Elsewhere I have spelled out in specific detail the possible legal boundaries and psychiatric j ustification of this “thank-you theory” of civil commitment (5). Essentially, it posits that the right to treatment must be an integral part of the initial judicial review of emergency commitment. The implications of the thank-you theory go beyond emergency commitment and extend to all instances in which the courts act underparenspatriae. I believe that in every instance the court has a responsibility to know what will happen to the individual whose life is being interfered with by the state. The question, Is this person committable? is meaningless in the abstract. It can be answered only by knowing what treatment is available. The question, Is this child neglected? is also meaningless in the abstract. It can be answered only by knowing whether the available foster home or institution is better or worse than the child’s present home. Psychiatrists and judges have for decades focused on the abstract threshold questions and have ignored what happens to the victims ofparens patriaejustice. If we revive the medical model, as I believe we should, this model must operate in a way that looks to results. Emergency commitment can be ethical only when it is more than a decision-making process. It must be linked to a guarantee of a humane course of treatment acceptable to reasonable men in ajust society.
4If the court finally decides that the sole standard dangerousness, i.e., the preventive detention model, tion “civil” should be abandoned and the procedure criminal justice system.
for commitment is I think the designabe relegated to the
OPINION
REFERENCES I. Bell v Wayne County General (ED Mich 1974 ) 2. State cx rd Hawks v Lazaro,
Prompt
Hospital 202
SE
Publication
at Eloise, 2d
109
384
( 1974)
F Supp
1085
AND
COMMENT
3. Task Force Report 8: Clinical Aspects of the Violent Individual. Washington, DC, American Psychiatric Association, 1974 4. Lessard v Schmidt, 349 F Supp 1078 (ED Wis 1972) 5. Stone AA: Mental Health and Law A System in Transition. Washington, DC, US Government Printing Office, 1975
Policy
The Journal would like to remind authors who are particularly interested in early publication (whether to establish priority of an idea, reveal innovative results of new research, or for other pressing reasons) of its prompt publication policy. Under this policy, short (maximum of six double-spaced pages) manuscripts will be considered for publication in the Brief Communications section of the first available issue. These manuscripts must still undergo expert scrutiny before being accepted, and two months must be allowed for the printing process. However, the time required for publication of these short articles can be lessened considerably. Authors who would like to have their manuscripts considered this desire, as well as the reasons for it, when they submit their
under this policy manuscripts.
A ml
Psychiatry
should
indicate
132:8,
A ugust
/ 975
831
AND
COMMENT
Comment BY
ALAN
A.
STONE,
M.D.
DR. PESZKE presents a powerful and incisive argument that will surely strike responsive chords in the minds of many psychiatrists. He defines the medical treatment model for emergency civil commitment in a straightforward way and defends this position on humane and ethical grounds. I shall attempt to add some further perspective to what is in my estimation a basically sound but incomplete argument. Civil commitment of the mentally ill has always had two overlapping legislative justifications: protection for society and care and treatment of the individual. The former is a traditional police function, but psychiatrists have in fact performed this function for at least a century by committing persons because of their supposed danger to society. It would be ingenuous to suggest that psychiatrists have always used the power for emergency commitment simply or solely for the good of the patient. We have in fact acted as agents of social control to protect society from persons we thought dangerous. Furthermore, emergency commitment has been employed by psychiatrists for decades as a first step to commit nondangerous patients for an indefinite period of time to substandard and understaffed facilities where few received adequate treatment. These facts are well known, and no psychiatrist can argue that the medical model as a basis for making a decision on emergency commitment has ever been an unqualified success. But the more important question, and this is the sense in which Dr. Peszke’s paper should be read, is, Could it be? I think it can. I believe, however, that it may be too late, given the recent developments in litigation and legislation.’
THE
TREND
IN
LEGAL
REFORM
The thrust ofcurrent legal reform is to reject the medical model of imposing treatment for the person’s own good. Under law the medical model is justified by the doctrine of parens patriae. That doctrine is increasingly under attack as a basis for involuntary confinement.2 The
Dr. Stone is Professor of Law and Psychiatry, Faculty of Law and Faculty of Medicine, Harvard University, Cambridge, Mass. Address reprint requests to Langdell Hall, Harvard Law School, Cambridge, Mass. 02138.
‘See, for example, pital at Eloise (1).
the recent
case
of Bell
2See, for example,
the recent case of State
v Wayne
County
ex rel Hawks
General v Lazaro
Hos(2).
courts have held that deprivation of liberty must be based on an objective standard; they have turned in the spirit of reform to the standard of dangerousness, particularly dangerousness to others. Many states have precipitously adopted that standard in their statutes. Dr. Peszke warns that psychiatrists operating under that standard become nothing but agents of social control. He is obviously correct, but I believe the situation may be even worse than he states. Because I wish to draw attention to the emerging legal trends, I shall focus solely on an emergency commitment system in which dangerousness to others is the preeminent criterion. I have deliberately slighted the standard of dangerousness to self, which is quite pertinent. Its limited retention is indicative of the court’s unwillingness to totally abandonparenspatriae. Similarly, many states have retained the standard of gravely disabled, but this is a narrow category as currently interpreted. At the present time psychiatry lacks the capacity to identify dangerous patients with sufficient reliability to meet a court’s evidentiary test of either beyond a reasonable doubt (about 90 percent certainty) or clear and convincing proof (about 75 percent certainty) (3).3 There will, ofcourse, be rare cases in which a clinician feels confident enough to claim that degree of certainty, most often with patients who are dangerous to themselves. However, in most instances the psychiatrist challenged in a court of law would simply have no legal basis for emergency confinement. Stated simply, the law has now produced an unworkable standard. Let us assume, nonetheless, that some emergency commitment continues and that involuntary access to mental health care is based on the standard of dangerousness. The traditional psychiatric population with severe forms of treatable mental illness is rarely dangerous (3). Thus these individuals will no longer have access to involuntary mental health care. On the other hand, the population ofdangerous persons with diagnosable mental illness includes many who are either difficult to treat or untreatable (e.g., those with character disorders, sociopathy, or paranoid personality). The objective legal standard erected as the criterion will thus tend to select an untreatable patient population who will require maximum or at least increased security. A large concentration of this kind of patient will create
‘I have attempted cal concepts. The opinion of many.
to translate statistical
AmJ
evidentiary conversions
Psychiatry
standards might be
/32:8,
August
into even
rough higher
1975
statistiin the
829
OPINION
AND
COMMENT
havoc in mental health facilities and destroy the open hospital concept. If the trend is allowed to continue and develop, the emergency commitment facility will become a jail, and the psychiatrists, if they remain, will be the wardens. This scenario is already apparent in some hospitals. Ironically, this movement toward reform in the law will be constitutionally suspect as well as destructive of social resources. Ifcommitment is not based on treatability but on dangerousness, emergency commitment becomes almost nothing but preventive detention, which has, of course, been anathema to civil libertarians on a variety of constitutional grounds. Thus the progressivist rush to the standard ofdangerousness in emergency commitment creates an impossible evidentiary problem, confines the untreatable, destroys important social resources, and may well be unconstitutional. If psychiatrists recognize their limitations in the ability to predict dangerousness and the dangers of exercising such a police function, might it not be wise for them to refuse to participate in this bizarre creation of legal progress? I have painted the starkest possible picture because I believe it is important that psychiatry begin to articulate the costs of the current wave of legal reform in terms of the mental health care delivery system. Many have rushed to condemn the medical model, but it is time that we answered the lawyers with their own riposte to almost any question, e.g., How is your wife? Compared to what? The path of legal reform involves not only changing the standard for emergency civil commitment to dangerousness but also changing the procedures to guarantee due process. As Dr. Peszke points out, this means embellishing civil commitment with all of the due process safeguards of a criminal trial (4). This kind of reform may be good law, but whether it is a wise social policy remains to be seen. There is a critical perspective at the conceptual level to be derived from distinguishing two social functions of the criminal courts. The first of these is to serve as a forum for establishing a standard of guilt while respecting mdividual rights. The second is to serve as the most powerful decision-making body in a complex bureaucracy consisting of law enforcement, the courts, and the system of corrections-this bureaucracy is charged with controlling crime. When the system is examined from this latter perspective its failures become obvious; indeed, many believe that it is counterproductive. Is it realistic to assume that imposing one terrible system on another will be socially productive? Nonetheless, given the past record of civil commitment, some legal modification of the process is essential. Dr. Peszke does not address this problem because of his effort to narrow the focus of his article. However, he has pulled together certain ideas that are a foundation to build on. The important premises implicit in his thesis are as follows: 1. Mental illness exists, although its forms and manifestations may be culturally determined.
830
Am
J Psychiatry
132:8. August
1975
2. Severe mental illness interferes with individual autonomy and compromises the capacity of the individual to make rational decisions. 3. Psychiatrists are capable of reliably diagnosing severe mental illness and evaluating competency to make rational decisions about treatment. 4. The mentally ill who are thus incapacitated and incompetent to decide about treatment can in fact benefit from treatment.
THE
RIGHT
TO
TREATMENT
Assuming that these considerations are valid, dangerousness becomes an irrelevant criterion. On the other hand, the availability oftreatment becomes a crucial consideration. If all of the premises outlined above are correct when applied to a given patient but treatment is not available in the institution to which he is committed, the medical model becomes an empty promise. A valid application of the medical model demands that the right to treatment be established as a reality in each instance of emergency civil commitment and at the earliest possible moment. The physician and the court should not be deciding whether or not a person is dangerous.4 Rather, they should address the following question: Would a reasonable man in this situation give up this much freedom for this much treatment? Elsewhere I have spelled out in specific detail the possible legal boundaries and psychiatric j ustification of this “thank-you theory” of civil commitment (5). Essentially, it posits that the right to treatment must be an integral part of the initial judicial review of emergency commitment. The implications of the thank-you theory go beyond emergency commitment and extend to all instances in which the courts act underparenspatriae. I believe that in every instance the court has a responsibility to know what will happen to the individual whose life is being interfered with by the state. The question, Is this person committable? is meaningless in the abstract. It can be answered only by knowing what treatment is available. The question, Is this child neglected? is also meaningless in the abstract. It can be answered only by knowing whether the available foster home or institution is better or worse than the child’s present home. Psychiatrists and judges have for decades focused on the abstract threshold questions and have ignored what happens to the victims ofparens patriaejustice. If we revive the medical model, as I believe we should, this model must operate in a way that looks to results. Emergency commitment can be ethical only when it is more than a decision-making process. It must be linked to a guarantee of a humane course of treatment acceptable to reasonable men in ajust society.
4If the court finally decides that the sole standard dangerousness, i.e., the preventive detention model, tion “civil” should be abandoned and the procedure criminal justice system.
for commitment is I think the designabe relegated to the
OPINION
REFERENCES I. Bell v Wayne County General (ED Mich 1974 ) 2. State cx rd Hawks v Lazaro,
Prompt
Hospital 202
SE
Publication
at Eloise, 2d
109
384
( 1974)
F Supp
1085
AND
COMMENT
3. Task Force Report 8: Clinical Aspects of the Violent Individual. Washington, DC, American Psychiatric Association, 1974 4. Lessard v Schmidt, 349 F Supp 1078 (ED Wis 1972) 5. Stone AA: Mental Health and Law A System in Transition. Washington, DC, US Government Printing Office, 1975
Policy
The Journal would like to remind authors who are particularly interested in early publication (whether to establish priority of an idea, reveal innovative results of new research, or for other pressing reasons) of its prompt publication policy. Under this policy, short (maximum of six double-spaced pages) manuscripts will be considered for publication in the Brief Communications section of the first available issue. These manuscripts must still undergo expert scrutiny before being accepted, and two months must be allowed for the printing process. However, the time required for publication of these short articles can be lessened considerably. Authors who would like to have their manuscripts considered this desire, as well as the reasons for it, when they submit their
under this policy manuscripts.
A ml
Psychiatry
should
indicate
132:8,
A ugust
/ 975
831
