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 a Washington bus stop outside the Department of Housing and Urban Development in November 1994, it was front-page news in papers from coast to coast. In the stories Miss Adams was cast as a victim of the nation's callous housing policies-a martyr to affluent America's indifference to the homeless. In the hours after her body was carted away, HUD Secretary Henry Cisneros held a press conference to propose raising spending on homeless programs from $823 million to $1.5 billion a year.
But as James Glassman pointed out in Forbes Media Critic, Yetta Adams did not die from lack of housing. She died from lack of treatment. She suffered from schizophrenia, a neurobiological disorder so profound that people who suffer from it-even as they talk back to voices only they can hear -often fail to recognize they are ill and therefore reject treatment. As a result, Miss Adams bounced from shelter to hospital to shelter. In her disorientation she forgot to take the insulin she needed for her diabetes and there was no way for social workers, judges, or family members to force her to take the medicine that would have kept her alive. At bottom, she was a victim of laws that make it impossible to treat brain-disordered individuals against their will without proof that they are dangerous to themselves or others-at which point they may be dead.
While Cisneros was lamenting Yetta Adams's fate, federally funded lawyers were working to make sure there would be many more victims like her. In each state Congress funds Protection and Advocacy programs (P&As) whose mandate is to prevent abuse and neglect of individuals with mental illness. But many are staffed by civil-libertarian lawyers and radical ex-patients who view schizophrenia as an alternative lifestyle and consider treatments 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 other diseases, they can be treated. During the last two decades there has been a revolution in the neurosciences which has produced new ways of studying the brain through neuroimaging techniques like MRI (magnetic resonance imaging), CT (computerized tomography), and PET (positron emission tomography). Particularly important are ongoing studies, conducted by the National Institute of Mental Health's Neurosciences Center, of identical twins only one of whom has schizophrenia. (In a high proportion of cases, if one identical twin has schizophrenia, the other is also afflicted, pointing to a strong genetic component in the disease.) MRI scans show striking differences between the sick and well twins, among them larger ventricles in those with schizophrenia (implying that missing tissue has been replaced by cerebrospinal fluid), wider cortical sulci, spaces in the foldings at the surface of the cortex (suggesting atrophy or failure of brain cells to develop), and reduction 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 as surely as multiple sclerosis, Parkinson's disease, and Alzheimer's disease are established as real brain diseases."
Unfortunately, our laws and public policy are founded not on this scientific consensus but on destructive ideas from the Left and the Right that became fashionable in the militantly anti-institutional climate of the 1960s. British psychiatrist Ronald Laing, a counter-cultural guru, popularized the notion of schizophrenia as analogous to an LSD trip, a "voyage of discovery" leading to higher forms of perception and "a natural way of healing our own appalling state of alienation called normality." From the Libertarian Right came Dr. Thomas Szasz, who disposed of mental illness by verbal sleight of hand." Mental illnesses do not exist; indeed they cannot exist, because the 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 by falsely suggesting that the symptoms of mental illness were to a large extent produced by institutions that were meant to cure it. They suggested that mental patients needed lawyers, not doctors. And in the late 1960s and early 1970s, a group of public-interest lawyers created an informal mental-health bar. Bruce Ennis, widely regarded as the father of that bar, spoke candidly of his target. "My personal goat is either to abolish involuntary commitment or to set up so many procedural roadblocks and hurdles that it will be 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 badly needed reform. Vaguely worded commitment laws lent themselves to abuse. Huge numbers of people were warehoused for life in understaffed and badly run state hospitals. State budgets 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 patient dumping. 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 (or up to 90 days if he continued to be "dangerous"). There were no medical grounds to justify these time limits; there had been no pilot program; no one had any idea how the law would work. Yet the California legislature passed the LPS Act unanimously. Fiscal conservatives and civil libertarians made an unbeatable combination, holding out the prospect of saving money by doing good.
Other states followed suit. Part of the strategy of the mental-health bar in the 1970s was to sue to force expensive improvements in state hospitals in the correct expectation that state governments would close them down or radically reduce their size rather than meet court-imposed standards. In 1974, an attorney in a "Mental Health Project" established by a federally funded legal-services program at Mississippi State Hospital boasted 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 years earlier. The number of psychiatric beds in general hospitals increased in this period, but in 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 to abuse drugs and alcohol. Judy Pritchett, former clinical director for Project Reachout in New York City, says: "Every day we are seeing more and more people with addictions to crack cocaine, alcohol, and other substances. It's a dramatic increase. And the presence of these problems makes it harder and harder to reach these people."
Increasingly, jails have become society's institution of choice 'people with brain diseases. A recent study sponsored by the National Alliance for the Mentally Ill and Public Citizen found that 7.2 per cent of the jail population has a mental illness. Put another way, every day more than 30,000 individuals are serving time in jail, most for misdemeanors 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 are undertaking 'mercy bookings,' charging individuals with small crimes just to get them into jail and treatment. Unfortunately in many cases they are victimized in jail by the regular inmates and get no treatment." On the street, the untreated may become truly dangerous, especially when they abuse drugs. While old studies which still quoted that claim mentally ill people are less violent than the general population, they were conducted at a time when the most seriously ill were in hospitals. John Monahan of the University of Virginia Law School writes: "The data that have recently become available, fairly read, suggest the one conclusion I did not want to reach ... Mental disorder 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 housing prompted 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 65 and 85 percent of the homeless population suffers from chronic alcoholism, drug addiction, severe psychiatric disorders, or a combination of the three. Most researchers agree, they write, "that at least one-third of the homeless suffer from severe and persistent chronic psychiatric disorders such as schizophrenia and manic depression; the proportion may be as high as one-half."
But the denial is starting to break down. A number of states have changed their commitment- laws, supplementing the usual standard requiring the patient to be dangerous or "gravely disabled" with a "need for treatment standards" which permits treatment if the person has a severe mental disorder that will predictably result in his deterioration and lacks the capacity to make informed decisions on treatment as a result of his illness. However, this does not mean a return to the bad old days when mental illness was vaguely defined and patients could be confined in mental hospitals indefinitely. Today's existing strict procedural safeguards-including the patient's right to 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.
Efforts to reform the law typically start with statewide family/patient groups, many of them 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, whose mentally ill sister-in-law Victoria Jacobs Madeira dressed her 11 year-old son in girl's clothes, drove with him seventy miles to her parents' home, and stabbed and shot to death her 78-year-old mother. The family had repeatedly sought. to have Mrs. Madeira, who lived in a parking lot with her son ,and rummaged through dumpsters for food, committed for treatment, but mental-health authorities ruled she was not dangerous.
Civil-libertarian lawyers have successfully, opposed reform efforts in many states, but reformers may be gaining a new ally in the judiciary. In September 1994, Justice Salvador Collazo of the New York State Supreme Court ruled that the family of John Winter-a 77-year-old usher at St. Patrick's Cathedral, who had been bludgeoned to death by Jorge Delgado, a mentally ill man-could sue Bellevue Hospital, which had repeatedly treated and released Delgado. Judge Collazo acknowledged that he was flying in the face of established case law. Nonetheless, he ruled: "The cyclical pattern exemplified here of admittance-drug treatment-release-psychosis-readmittance-drug treatment-release, etc., although widely accepted as the modern approach to rehabilitating mentally ill persons, is unreasonable, since released mental patients (without medication and/or supervision) do (sic) violence to themselves and to others. Unsupervised and unmedicated, Mr. Delgado was a tragedy waiting to happen."
A particularly important innovation is outpatient commitment. Most patients do not need long-term institutional care. The problem is that many of those who respond to medications stop 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 remaining in 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 for enforcement. The judge orders a patient to take medication, but if he subsequently refuses, he can be compelled to do so only if he meets the commitment standard in most states, that he be a danger to himself or others. But this defeats the whole purpose of outpatient commitment, which is to prevent the individual from getting to that point in the 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 take medication can be put in the hospital if he fails to comply. David LeCount, Mental Health Coordinator for Dane County, says that this program, in combination with other forms of outreach, cut the number of days patients spent in hospitals by 75 per cent over three years. There is a precedent for forced treatment in the community: TB patients. Dr. Torrey observes: "For an individual with tuberculosis and schizophrenia, in some states the individual may be involuntarily treated for the tuberculosis but not for the schizophrenia."
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 new laws fear they are unconstitutional. But are they? The mental-health bar has argued that only 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, and intelligence. There were repeated offers, both from a half way house and a friend of Donaldson's, to provide a home and supervision for him. Paul Stavis, legal counsel to the Commission on Quality of Care for the State of New York, says that the mental-health bar misreads the Donaldson decision. Says Stavis: "In its decision, the Supreme Court specifically spoke of someone who could 'live safely in freedom.' The justices weren't thinking of malnourished individuals lost in delusions lying on park benches in their own waste. I believe a well crafted need-for-treatment standard would be judged constitutional by this Supreme Court."
Let us hope he is right. Such a rational system will improve life for those who suffer from mental illness, not perpetuate their degradation as we do at present. Herschel Hardin was director of the British Columbia Civil Liberties Association for nine years. But having a son with schizophrenia, he learned that it was a grotesque distortion to justify abandoning people to the ravages of this disease in the name of civil liberties. Today Hardin says: "The opposition to involuntary committal and treatment betray a profound misunderstanding of the principle of civil liberties. Medication can free victims from their illness-free them from the Bastille of their psychoses and restore their dignity, their free will, and aid in the meaningful exercise of their liberties." Exactly.
January 29, 1996
Reprinted with permission. Copyright 1996 by National Review, Inc., 215 Lexington Avenue, New York, NY 10016. All rights reserved.
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