Psychiatric Annals

THE PRACTICAL LIMITS OF PATIENTS' RIGHTS

Darold A Treffert, MD

Abstract

1. State Mental Health Act. Laws of Wis ch 51 75 11 (F), 1971.

2. Lessard v. Schmidt (349 F Supp 1078).

3. Testimony before Senate Select Committee, California Legislature, State Capitol, Sacramento. Calif.. June 15, 1973.

4. Chase, J. Where have ail the patients gone? Human Behavior (Oct., 1973), 14-21.

5. Personal communication, Detroit Police Department. Detroit. Mich., Feb, 9, 1974.

6. Personal communication. Memphis Police Department, Memphis. Tenn., Jan. 3, 1974.

7. Resisted aid. The Sacramento Bee, June 20, 1973.

8. Final Report: Senate Select Committee on Proposed Phase-Out of State Hospital Services. California Legislature, Sacramento, Calif., March. 1974, pp. 38-45.

9. Allen, R. Commentary M/H 58:1 (1974), 3.

10. Reich, R , and Siegel, L. The chronically mentally ill shuffle to oblivion. Psych. Annals 3:11 (1973), 35-55.

11. Risks of premature discharge reported in Canadian study Psych. News (Aug. 1, 1973), 4.

12. Reich, R. Care of the chronically mentally ill - A national disgrace. Amer. J. Psychiat 130 (1973), 911-912,

13. Peale, R. Chodoff, P., and Taub, N. Involuntary hospitalization and treatability Observations from the District of Columbia experience. Catholic Univ. Law Rev. 23:4 (1974), 744-753.

14. Lessard v. Schmidt Supreme Court of the United States, 73-568. Decided Jan. 14, 1974.

15. California solons override Reagan veto of hospital bill. Psych News (March 20, 1974), 19.

16. Oran, D. Judges and psychiatrists lock up too many people Psychology Today 7:3 (1973), 20-22, 27, 28, 93.…

Determining which of the mentally ill must be hospitalized and which need not be is a complex problem at best and a treacherous one at worst. Throughout psychiatric history there have been skirtings around that issue, with attempts to find a reasonable middle ground between protecting the psychiatric patient's right to remain free and the right of the patient and those around him to be secure from the untoward or even tragic effects of his illness. The latter right, that of assistance and relief, has recently been overshadowed by our concern about the former, the right to be sick. But both are important, and psychiatrists and society have an obligation to be equally concerned about both rights.

This article presents several case reports of psychiatric patients who have "died with their rights on," situations in which scrupulous concern for the patient's rights overshadowed and outweighed reasonable concern for the patient's life. My contention is that such instances as these are a legitimate interest of psychiatry and the law in the delicate task of balancing legal rights with clinical concerns in the commitment process.

Before October 17, 1972, psychiatric patients in Wisconsin could be committed to mental hospitals if the court - after inquiry, examination, and hearing - was "satisfied that the patient was mentally ill and a proper subject for custody and treatment." Mental illness was defined as "mental disease to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community."1

But on that date a federal district court, in the class action suit Lessard v. Schmidt,- declared Wisconsin's commitment law un-Constitutional and substituted a new definition of suitability for commitment in Wisconsin: "Extreme likelihood that if the person is not confined he will do immediate harm to himself or others."

Since this new and more stringent law went into effect, several cases have occurred in Wisconsin of patients who have died with their rights on; similar cases have surfaced in other states that are making similar legal changes.

A 49-year-old woman with anorexia nervosa, admitted to a medical unit in a general hospital because of profound weight loss, steadfastly refused to eat. She presented a life-threatening situation, albeit not an imminent one. This was her response to a family struggle in which she was deeply enmeshed, but she was in good general contact with reality and was not flagrantly psychotic. She refused voluntary psychiatric intervention and, in spite of her frail and deteriorating condition, insisted on leaving the hospital. Her family and physician petitioned the court for psychiatric observation of the patient. The judge believed, however, that the situation lacked dangerousness in an immediate or imminent sense, and the patient therefore failed to qualify for involuntary commitment. She was sent home, as she desired, and three weeks later she died from inanition.

A 19-year-old college student with a refractory schizoaffective depression of major proportions made a serious suicide attempt with a massive drug overdose; only the unexpected arrival of friends prevented the attempt from being successful. After two days in the intensive care unit of a general hospital, she regained consciousness and agreed to transfer to the psychiatric unit.

After several days on this unit, the patient requested release, although it seemed apparent to her psychiatrists that she was little dissuaded from her death wish. Her family and physician urged her to stay for further treatment, but she insisted that she was much better, adamantly denied any suicidal intent, and made a formal promise to her family that she would never try to harm herself again.

The family wanted to commit her, but they were advised that - in view of the girl's good presentation of herself, her denial of suicidal intent, and her desire to leave the hospital - she did not qualify for commitment under the new guidelines. Her situation lacked extreme likelihood of immediate harm to herself or others. She signed out of the hospital against medical advice. The following day she hanged herself.

The next case is from Michigan, where a stringent new law concerning suitability for commitment has recently gone into effect.

Two young women in a university community were observed standing on a street corner in the campus area, staring in catatonic fashion at each other for over an hour. Their behavior soon attracted a crowd, creating considerable confusion at the busy intersection. Eventually the police were called and took the pair to a nearby precinct for questioning, but the women would give nothing more than their names; they refused to speak and sat mutely staring into space.

The police concluded that some type of psychiatric observation was indicated, but when they contacted the city attorney's office and the prosecuting attorney's office, the opinion from both was the same. State law allowed persons to be held for observation only if they appeared obviously dangerous to themselves or others. In this case, while the overall behavior of the two women was obviously bizarre, they were, after all, only staring at each other, not voicing any threats against themselves or others. Since neither homicidal nor suicidal tendencies were apparent, it was the opinion of both attorneys that the women did not qualify for observation. Reluctantly, the police released them.

Less than 30 hours later the police were called to a campus apartment where the two women had been found on the floor screaming and writhing in pain, their clothes ablaze from a self-made pyre that they had lit for each other in a suicide pact. It was concluded that there was no evidence for drugs having played a part in what was believed to be a "ceremonial immolation." Both women were taken to hospitals in critical condition; one recovered and one died.

Additional such tragedies have occurred. A 36-year-old California man, granted a writ of habeas corpus because he failed to qualify as "imminently dangerous" under the provisions of the Lanterman-Petris-Short Act, left the hospital over the objections of staff doctors and promptly killed his wife, three children, and himself.'' (It might be said that they died with his rights on.) According to one report, since that 1969 LPS Act "72 murders, suicides, and unfortunate accidents have directly involved former patients or those who tried unsuccessfully to get psychiatric care."4 A 22-year-old Michigan man stabbed his year-old daughter on a makeshift altar after the family "failed in efforts to have the man committed to a mental hospital for observation."5 A 32-year-old Tennessee man shot and killed his two small sons and himself after his wife, checking with police about her husband's strange behavior, was told "there was nothing they could do."(i A pregnant mother of nine stabbed to death and decapitated two of her children in the front yard of their home; repeated attempts had been made to have her committed for psychiatric treatment, "but the effort was unsuccessful because of laws that required the woman's consent."7

Other problems spring from commitment statutes whereby dangerousness can be used as a criterion for commitment only in the presence of an overt physical act.s Some patients simply deteriorate until they accumulate sufficient symptoms to meet the dubious qualification of being dangerous. Others are imprisoned - criminalized - instead of being hospitalized. One California county reports that its jail population has more than tripled because of the addition of mental patients who now, failing commitment, are picked up for loitering or disorderly conduct.9 It seems ironic that, while society is moving away from jailing the public inebriate, jailing of the mentallv ill still occurs.

Intrinsically related to changes in criteria for commitment is the tendency to dump large numbers of the mentallv ill into communities unwilling or unprepared to deal with this onslaught of very disturbed and helpless persons.10,11 One writer described this as a "return to the Middle Ages, when mentally ill roamed the streets and little boys threw rocks at them."12 Another describes this abandonment of the mentally ill for whom treatment would be available and effective as "preservation of a liberty which is actually so destructive as to constitute another form of imprisonment."13

The patients died - with their rights on. It is reminiscent of the dubious laboratory triumph of "dying in electrolyte balance," where the patient's impeccable chemical harmony at the time of death softens the whole matter for the chemoclinician solely concerned with magnesium, potassium, and sodium.

Certainly in the commitment process we have much to guard against. Such a procedure cannot be allowed to be arbitrary, capricious, casual, or employed merely for convenience. Abuse of mental hospital commitments in the past has rightfully heightened society's concern that the psychiatric hospital not be subverted for some unsavory purpose, be it personal, societal, or political. Painstaking protection of patients' civil rights and prevention of warehousing in psychiatric hospitals are important and noble efforts. I am simply arguing that equally - no more, no less - important and noble is the task of ensuring reasoned, restrained, and appropriate care and intervention for the seriously mentally ill patient (voluntary or involuntary) when severe or tragic consequences will ensue to the patient or those around him in the absence of treatment. "Extreme likelihood of immediate harm" is simply too harsh and too rigid a criterion.

Fortunately, legislators are beginning to realize that their good intentions failed to balance all the necessary considerations. On January 14, 1974, the Supreme Court of the United States set aside the Lessard decision, stating that it provided a "wholly inadequate foundation upon which to premise plenary judicial review" and that it was vague and lacking in reasonable detail.14

Clearly the Wisconsin commitment statute to which the state reverted after Lessard is imperfect. It does not provide sufficient due-process safeguards. The Lessard decision went too far in the other extreme, however; while providing legal safeguards, it tended once again to criminalize the mentally ill and ignored basic clinical facts of life. Judges, attorneys, legislators, and psychiatrists in Wisconsin are now working towards a new statute that will strike a practical, humane, delicate balance between clinical realities and legal rights. New ways of approaching these difficult problems are being considered, such as a protective-services provision that would handle the chronic, gravely disturbed patient by a guardianship rather than by commitment per se.

In California, the Senate Select Committee on Proposed Phase-Out of State Hospital Services has also looked at the problems of existing commitment procedures and concluded that, as with most things of controversy, the truth is somewhere between ultrarestrictive and ultraliberal laws. The committee recommends such changes as retention of an involuntary, but time-limited, treatment period; not restricting the criterion of dangerousness to overt physical violence; outpatient treatment to be prescribed in certain cases as an alternative to hospitalization; ample judicial review provisions; and expansion of the definition of "gravely disabled."8 Public concern about the plight of the mentally ill and many of the problems we have discussed led then-governor Ronald Reagan to reverse his earlier position to close all state hospitals by 1977. For the first and only time in Reagan's tenure, a gubernatorial veto was overridden by the Assembly and Senate in California, on a bill opposed by the Governor that required legislative review of any unilateral administrative decisions regarding closure of hospitals for the mentally ill and retarded.15

In recent years, sensationalism about the abuse of commitment prerogatives, and abuse of psychiatric power in general, has captured the public interest. Horror stories of long-term commitment for mere eccentricity, coupled with fear of a "behavioral state," have fed into a climate wherein all such procedures are suspect.'" Perhaps the recounting of the cases I have presented could be called sensationalism as well. If the process of citing these instances stopped there, it would be mere sensationalism and serve no useful role; but my purpose is much broader. If the other sides of the commitment dilemma are pointed up - sides recently submerged by the purely legal concerns - public and legislative interest can be channeled towards developing truly enlightened legislation that neither criminalizes nor captures the mentally ill. Perhaps now, having looked at all sides of the dilemma, psychiatry and law can take a cautious, awkward, but new step forward.

BIBLIOGRAPHY

1. State Mental Health Act. Laws of Wis ch 51 75 11 (F), 1971.

2. Lessard v. Schmidt (349 F Supp 1078).

3. Testimony before Senate Select Committee, California Legislature, State Capitol, Sacramento. Calif.. June 15, 1973.

4. Chase, J. Where have ail the patients gone? Human Behavior (Oct., 1973), 14-21.

5. Personal communication, Detroit Police Department. Detroit. Mich., Feb, 9, 1974.

6. Personal communication. Memphis Police Department, Memphis. Tenn., Jan. 3, 1974.

7. Resisted aid. The Sacramento Bee, June 20, 1973.

8. Final Report: Senate Select Committee on Proposed Phase-Out of State Hospital Services. California Legislature, Sacramento, Calif., March. 1974, pp. 38-45.

9. Allen, R. Commentary M/H 58:1 (1974), 3.

10. Reich, R , and Siegel, L. The chronically mentally ill shuffle to oblivion. Psych. Annals 3:11 (1973), 35-55.

11. Risks of premature discharge reported in Canadian study Psych. News (Aug. 1, 1973), 4.

12. Reich, R. Care of the chronically mentally ill - A national disgrace. Amer. J. Psychiat 130 (1973), 911-912,

13. Peale, R. Chodoff, P., and Taub, N. Involuntary hospitalization and treatability Observations from the District of Columbia experience. Catholic Univ. Law Rev. 23:4 (1974), 744-753.

14. Lessard v. Schmidt Supreme Court of the United States, 73-568. Decided Jan. 14, 1974.

15. California solons override Reagan veto of hospital bill. Psych News (March 20, 1974), 19.

16. Oran, D. Judges and psychiatrists lock up too many people Psychology Today 7:3 (1973), 20-22, 27, 28, 93.

10.3928/0048-5713-19750401-06

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