Liberty, Sanity, Equality

"I was a political prisoner. ... [P]eople on the street, sleeping with their faces down on the ground, having to panhandle for money -- that ought to be enough. But no: Mayor Koch wants to compound the problem by picking you up against your will, violating your human rights, humiliating you, degrading you, forcing you into the hospital."

Those were the words of Joyce Brown, who was briefly the world's best-known homeless woman, to an audience of law students at Harvard University in February 1988. Four months earlier, Ms. Brown had been the first mentally ill person involuntarily hospitalized under an aggressive program launched by New York City's Mayor Ed Koch. In a widely publicized series of court hearings, Ms. Brown bitterly contested her confinement and refused to take psychiatric medication. She was finally released from Bellevue Hospital Center after 84 days, following a court ruling that hospital staff could not forcefully medicate her. She declared that her rights had been vindicated.

Others disagreed. Ms. Brown's sisters insisted that her best interests -- her true rights -- demanded that she receive treatment for her mental illness. She had been living an apparently miserable existence, begging on a street corner and urinating in an alley. After a district court found in Ms. Brown's favor in an early round of the battle, her family complained, "If the judge's own wife or mother were on the streets, he would not stand for it." Mr. Koch, too, proclaimed that involuntary hospitalization was sometimes the best way to honor the rights of the acutely mentally ill. The city's earlier, more liberal policies, he said, abandoned "thousands of people to a slow, painful death on the streets of New York City. ... As long as they choose to refuse help which is offered, they die slowly and quietly."

At the time of Ms. Brown's confinement, Judith Lynn Failer was in her first year of graduate school in political science at Princeton University. She read newspaper accounts of the case with horror and fascination. "I didn't understand why the language of rights was not helping her," she says. "I also didn't know what was the right thing to do by her. So it all bothered me."

Ms. Failer also noticed that the state's ability to place mentally ill people under involuntary civil commitment was hard to justify under the standard accounts of citizenship in a liberal democracy. "What I was learning about in our jurisprudence seminar did not map onto what I was reading about Joyce Brown," she says.

That puzzle has inspired Ms. Failer, who is now an assistant professor of political science at Indiana University at Bloomington, throughout the past 15 years. In Who Qualifies for Rights? Homelessness, Mental Illness, and Civil Commitment (Cornell University Press), she uses the debates over civil commitment to illuminate the liberal tradition's hidden assumptions about the rights and capacities of "normal" citizens. Meanwhile, a second new book -- Refusing Care: Forced Treatment and the Rights of the Mentally Ill (University of Chicago Press), by Elyn R. Saks -- argues for serious reform in the government's treatment of mentally ill people who, like Ms. Brown, prefer to be left alone.

Dangerous Disorder?

Involuntary civil commitment is nothing new. A 13th-century English statute permitted the king to take temporary guardianship of a person "that beforetime hath had his wit and memory [but] happen[s] to fail of his wit." A 1788 New York law authorized the confinement of people who are "furiously mad, or are so far disordered in their senses that they may be dangerous to be permitted to go abroad." Today, all 50 states permit the detention of people who are acutely mentally ill and appear to pose a danger to themselves or others. (The specific criteria vary from state to state.) If a hospital wishes to confine a person involuntarily for longer than a brief period (generally 72 hours, depending on the state), it must justify the need for long-term confinement at an administrative hearing, where the patient must be represented by an attorney.

Ms. Failer notes that the United States has repeatedly tightened, then loosened standards for civil commitment. During the decade after the Civil War, Elizabeth P.W. Packard, who had been involuntarily hospitalized on her husband's say-so, successfully fought for procedural reforms. At her prodding, most states began to allow patients to plead their sanity before a jury.

Another wave of liberalization came in the early 1970s. Following a series of federal-court decisions, most states narrowed their commitment criteria to focus on "dangerousness," rather than on the patient's alleged general well-being. More recently, in response to the apparent distress of urban homeless people, some cities have aggressively interpreted "dangerousness to self," so that mentally ill people who sleep outdoors in inclement weather can be detained. That was the premise of the 1987 New York City program that confined Joyce Brown.

The present-day practice of civil commitment represents an odd and difficult hybrid of legal and medical functions, says Ms. Saks, a professor of law, psychology, and psychiatry and the behavioral sciences at the University of Southern California. The job of a lawyer who represents a patient at a commitment hearing is not to act in his or her best interests, as the lawyer sees them, but to be the patient's mouthpiece, she says. That can be difficult. "What do you do if the client changes his mind a lot? What do you do if the client is silent? Do you assume then that you should argue for what you think is best for them?" And: "What if you're representing someone and you find out that, unbeknownst to anyone else, they're planning on ... going to live under a bridge, and they're not going to eat anymore because God told them not to? What do you do? Do you violate confidentiality, which makes every other patient lose trust in lawyers? Do you throw the case?"

Paul S. Appelbaum, a professor of psychiatry at the University of Massachusetts at Worcester and the president of the American Psychiatric Association, believes that the current model of civil commitment is incoherent. "I think there are a lot of people who are uncomfortable with using 'dangerousness' as the touchstone here," he says, "believing that it tends to turn the psychiatric-care system into something that approaches a system of social control rather than a system of medical treatment."

Dr. Appelbaum would prefer a system based on a person's "capacity -- so that whether or not you were dangerous, if you were unable to make a good decision about your own care, the state would make sure that someone made that decision for you. And conversely, if you were dangerous, but able to make reasonable decisions about your own treatment ... the state has other means for dealing with those cases, through the criminal-justice system."

Hidden Assumptions

But why, exactly, should "dangerousness to self" or a lack of "capacity" allow someone to be deprived of ordinary liberties? That is the riddle at the heart of Ms. Failer's book. The founding theorists of political liberalism tended to take the answer too much for granted, she found. John Locke, for example, excluded "Lunaticks and Ideots ... and Madmen" from his theory of rights, on the grounds that a person without reason is "never capable of being a Free Man."

Locke's formula, Ms. Failer says, perhaps matches our intuitions in a very broad way: Some aspects of democratic citizenship do require reason of one sort or another. But Locke, like most of his successors, never spelled out how to identify a "Lunatick," or who should be permitted to do the identifying. Even contemporary liberal theorists such as Isaiah Berlin and John Rawls left their assumptions about individual citizens' rationality "undertheorized," Ms. Failer says.

What we are left with today, then, is an awkward patchwork, according to Ms. Failer. We tend to believe that our rights are seamless and universal, even when our society's actual practices suggest otherwise. Not only the mentally ill but other large groups of people -- such as bankrupts and felons -- carry "bundles of rights," in Ms. Failer's phrase, that are different from those of "normal" citizens. "Our commitment to legal equality makes it very difficult to talk about inequality," she writes.

And our avoidance of that discussion, she continues, makes it very difficult for the opposing sides in cases like Joyce Brown's -- civil libertarians and paternalists -- to reach any kind of accord. Following the lead of the feminist scholar Martha Minow, Ms. Failer urges liberal philosophers to take "difference" seriously, and not to smuggle into their theories unwarranted assumptions about citizens' capacities and desires.

Ms. Failer wants to expose our hidden assumptions about citizens' capacities in order to make our debates about mental illness more coherent and productive. She worries that bundling rights for certain groups of people, including the mentally ill, raises the danger of the creation of second-class citizenships. But she finally concludes that certain bundles, as in the case of civil commitment, "may be an efficient -- perhaps unavoidable -- way to make assumptions about who qualifies for rights." She hopes that a more explicit public discussion of those bundles will prevent the state from abusing its powers. (She was horrified, for example, that Joyce Brown was prevented from contacting reporters during her first several days of confinement.)

Certain other scholars, who are much more critical of the legal status quo, use language similar to Ms. Failer's when they denounce the system. "When we talk about 'disease,' when we talk about 'competency restoration,' those are words and phrases that are literally cloaked and saturated with a host of values that we don't really talk about," says Bruce A. Arrigo, a professor of criminal justice at the University of North Carolina at Charlotte. In his recent book, Punishing the Mentally Ill: A Critical Analysis of Law and Psychiatry (State University of New York Press), Mr. Arrigo argues that American law should be more respectful of the expressed desires of people with mental illness. "There are different ways of knowing, different ways of being," he says. "When we use terms like 'defect,' descriptors like that are naturally going to color the ways in which we make decisions about people with mental illness."

Ms. Saks is generally much more sympathetic to the mental-health system. (Alongside her duties at USC, she's a doctoral candidate at the Los Angeles Psychoanalytic Society and Institute.) She would like to see many more public resources devoted to treatment. Care for mentally ill people and the legal standard for detaining them should be separate issues, she says. "If a homeless person wants treatment, she shouldn't have to show that she's 'dangerous,' just that she's very ill and wants help."

Her new book, however, is about people in the opposite position -- people who, like Joyce Brown, would like to refuse help offered by the state. Ms. Saks's proposed reforms would be, in her words, "both more paternalistic and less paternalistic" than the legal status quo. More paternalistic because she would increase the state's freedom to give involuntary treatment the first time a person suffers a psychotic break. (Again, she would do this by removing the "dangerousness" criterion.) Less paternalistic because she would then give the patient more latitude to refuse treatment on subsequent occasions.

Ms. Saks's framework -- she calls it giving the state "one free shot" -- is a variation of the "thank-you theory" of involuntary mental-health care associated with Alan A. Stone, a Harvard University law professor. Forced civil commitment is justified, Mr. Stone argues, insofar as patients, in the aggregate, are later grateful for it. Ms. Saks says that her proposal represents a compromise between the anxieties of lawyers and the anxieties of psychiatrists. "We hope that psychiatrists' fantasies will turn out to be true," she says, "and that the patient will get better and be grateful." But we also must attend to lawyers' fears -- that the state will run roughshod over patients' autonomy.

The mechanism at the heart of Ms. Saks's system is the "psychiatric advance directive" -- something analogous to the living wills prepared by elderly people and the terminally ill. When patients are discharged from the hospital after their first psychotic episode, her system would encourage them to fill out a form indicating which (if any) type of treatment they would like to receive if they suffer symptoms in the future. She would give patients broad powers to refuse treatment, especially types of treatment that they have already experienced once. We should respect such "Ulysses contracts" -- an allusion to Ulysses' binding himself to his ship's mast in order to avoid the lure of the sirens -- even when a person appears to be suffering. She writes, "If it is too painful to watch someone suffer when he wants treatment and we decline to give it to him, why is it not too painful to watch someone suffer when he doesn't want to be treated and we decline to respect his choice?"

No Thank You

Some observers are skeptical of the apparatus that would be required to put into place and enforce a large-scale system of psychiatric advance directives. "I'm suspicious of what happens when you get the force of law behind these somewhat private questions," says Rebecca Dresser, a professor of law and medical ethics at Washington University in St. Louis. "The risks may outweigh the benefits of the policy. ... Do people really understand the implications of their choices?" Ms. Dresser has found that elderly and terminally ill people sometimes do not grasp the full range of possibilities before them. She concedes that, under Ms. Saks's proposal, "someone is addressing a treatment option they've already experienced, so the chances of informed choice would be greater." But she still worries about situations in which "the clinicians and family members all agree that something else is in the patient's best interest."

Dr. Appelbaum similarly worries about the practicalities. "How do you as a clinician know that a patient has an advance directive?" he asks. "Can you access that advance directive in a timely fashion? How do you know that the directive is valid in the sense that they made it at a time when they were truly competent?"

From the opposite corner, Mr. Arrigo is reluctant to endorse any proposal founded on the "thank-you" model, fearing that it would legitimize state paternalism. "Even if you assume a set of facts most favorable to the proponents of this approach," he says, "you're somehow saying that the patient is both mentally ill and not mentally ill simultaneously. If the patient says, 'Hey! I never wanted this treatment in the first place,' will that statement really be respected?"

Other scholars, however, see great promise in proposals like Ms. Saks's. "The preparation of an advance directive can be a wonderful therapeutic opportunity," says Bruce J. Winick, a professor of law at the University of Miami. "In a sense, we often infantilize our mental patients. We act very paternalistically toward them, and they don't develop a lot of self-determining, autonomous decision-making skills."

For her part, Ms. Saks concedes that the technical challenges of designing a system like hers would be considerable. But she hopes that policy makers will pay close attention. Her work has been put to public use before: As a law student 16 years ago, she wrote an article denouncing the American practice of restraining unruly mental patients in their beds -- a practice that was abolished in England two centuries ago. That article has been cited in lawsuits aimed at reforming American mental hospitals. "My hope is that by doing what I like to do, and what I have some abilities in, I can make some difference, even if I'm not in the trenches advocating."

David Glenn is an editor atThe Chronicle of Higher Education.

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