Morris, Grant H., LLB., THE MENTALLY ILL AND THE RIGHT TO TREATMENT. Springfield, Illinois: Charles C. Thomas Co., 1970, 130 pp., $9.50
No one, of course, wants to deprive a mentally ill patient of his right to treatment. This volume by six contributors (one sociologist, two psychiatrists and three attorneys) reviews in considerable detail the problem of enforcing the patient's right to treatment. Three basic dilemmas haunt us here. One is what do we do with the patient for whom no effective treatment is known if the courts can enforce treatment? Second, how about unbeatable patients who are dangers to others? And third, can courts really make treatment decisions?
One of the attorney-contributors finds "it difficult to see how confinement can be used to justify detention of an untreatable patient." Mrs. Marschall, the attorney who wrote this chapter, suggests that if the institution does not follow a court order to give treatment, "it would seem reasonable to enforce the order by a contempt proceeding against the superintendent." Several of the contributors insist that "lack of staff should not be considered sufficient excuse for lack of treatment." Judge Bazelon warns that courts "should not play handmaiden to the hypocrisy which rationalizes confinement by a false promise to treat." The judge adds that when a patient threatens a court procedure to get treatment, the hospital often does find ways of improving the program.
With respect to patients for whom we have no effective treatment, the general position taken here is that such patients should be returned Io prisons if they have been convicted, or released from the hospital if they have not been convicted. Our difficulty in predicting violence is not unnoticed, and the Baxstrom experience is rubbed in. In this case, courts ordered transfers from "criminally insane" to civilian hospitals of all patients who had served the maximum time for their crimes. All had been certified by psychiatrists as too dangerous to be in civilian hospitals. Actually, fewer than one per cent of these presumably dangerous patients ever got into subsequent difficulties with acts of violence, which leads Mr. Morris to conclude that "the psychiatrists in the Department of Mental Hygiene lacked the ability to diagnose dangerousness in mental illness." One reason that we so often overpredict violence is that if we call the patient safe, and he is released and commits a crime, the doctor may be liable in malpractice; but if we predict violence and he is confined, our error cannot be exposed.
As to the ability of the courts to make treatment decisions, Judge Bazelon points out that judges are always making decisions on technical points in engineering, marine biology, radio communications; and, to make it clear, Judge Bazelon says that "in making administrative decisions, there is little to distinguish psychiatry from, say, radio broadcasting."
In 1967 the American Psychiatric Association adopted a position paper on the right to treatment which began: "The definition of treatment and appraisal of its charges are matters for medical determination." This declaration has aroused resentment and charges of staking out territorial jurisdictions from psychologists and judges.
This book presents us with a stimulating challenge to show that what we are doing in locked wards can legitimately be called treatment. It is true that many of our decisions about putting patients in closed wards are administrative rather than medical; perhaps, we should tailor-make individualized treatment regimes for each patient and encourage patients to appeal to a disinterested professional tribunal if they feel that they are not getting treatment. Stili unanswered is whether the legal right to treatment also carries with it a right to refuse treatment.