Still Dying With Their Rights On, 50 Years Later

This article is co-authored with George Dawson, M.D., DLFAPA, who recently retired from psychiatric clinical practice and is a freelance writer focusing on psychiatry.

In 1973, psychiatrist Darold A. Treffert, M.D., published an article titled "Dying with Their Rights On" in the American Journal of Psychiatry. The piece, written in the midst of the antipsychiatry trend of the late 1960s and early 1970s, lamented increased legal restrictions on mental health professionals to hospitalize and treat sick patients. These patients, according to Treffert, were quite literally dying with their rights on in homeless shelters, jails, under overpasses, and in the basements of abandoned houses. Fast-forward 50 years and the situation for the severely mentally ill hasn't gotten any better. In fact, it's grown much worse.

As a psychotherapist (Mark) and acute care psychiatrist (George) with experience working in inpatient, outpatient, and emergency settings with the severely mentally ill, we wish to offer some comments here on the ongoing debate surrounding the use of involuntary treatment in psychiatry. This is in the context of the recent resurgence of anti- and critical psychiatry perspectives on mental health (see Morehead, 2021).

Case Example

Frank was an 18-year-old college freshman who was taken to the emergency department of his local hospital after his college roommate noticed increasingly bizarre and erratic behavior over the course of the past few weeks. Frank insisted that an electrical thought-monitoring device had been surgically implanted in his brain by the CIA and that he had been wrongly accused of a worldwide conspiracy involving multiple major crimes. Frank's grades were dropping, he recently lost his job at the university library, and his family attempted to get him to an outpatient psychiatrist to no avail. Because he was not expressing any suicidal or homicidal ideas, Frank was discharged from the emergency department back to his dorm with a recommendation to follow up with a psychiatrist at the university counseling center.

Three weeks later, Frank attempted to dig out the electrical device in his brain with a kitchen knife. When this was unsuccessful, he killed himself in his dorm room after shooting himself in the head with a handgun.

The abandoned Center Building at St. Elizabeth's Hospital in Washington, D.C., 2006.

Source: Tom, used with permission

A Legal and Moral Obligation

Contrary to the claims of some critics, involuntary civil commitment has a well-established basis in English common law, arising from two fundamental legal principles: parens patriae (Latin, "parent of the country") and the police power of the state.

As Testa and West (2010) explain, "Parens patriae [refers to the legal doctrine that assigns to the government the responsibility to intervene on behalf of citizens who cannot act in their own best interest. A second legal principle, police power, requires a state to protect the interests of its citizens... Because of this obligation to all citizens, the state has the right to write statutes for the benefit of society at large, even when providing this benefit may come at the cost of restricting the liberties of certain individuals."

Indeed, both the power to quarantine persons with highly infectious diseases and the power to hospitalize those in need of psychiatric treatment stem from the long-recognized police power of the state—a power that predates the nation's founding (Gostin & Friedman, 2014).

To insist that involuntary treatment for the gravely ill is a threat to individual freedom, as Thomas Szasz argued for decades, is to turn the concept of freedom on its head. The sickest psychiatric patients—those most in need of involuntary treatment—have no real freedom at all; instead, they are restricted by their illness, which frequently renders them unable to work, go to school, maintain a home, or make any appreciable free choices in the world.

While it is true that there have historically been abuses of the civil commitment process, particularly in the late 19th and early-to-mid 20th centuries, the current reality is that it is too hard for the severely mentally ill to receive the care they need. State hospital beds have been reduced from over half a million in 1955 to a mere 35,000 presently. (To adjust for the current population, we would need approximately 1.2 million state psychiatric beds to reach 1950s hospitalization levels.) In the current non-system of care, homelessness and incarceration function like treatment options.

Getting into the hospital has become a near-impossibility unless the patient is deemed imminently dangerous, but many patients with severe, disabling disease (like Frank) do not meet this requirement and are shut out of the system. This frequently places family members and loved ones in a bind: The patient is too sick to function but not sick enough (or, more accurately, dangerous enough) to receive the treatment they need. And once patients are hospitalized, the modern standard of care is to treat the patient for a few days (not even long enough for pharmacological treatment to become effective, in most instances) and to discharge them right back into the same environments from which they came, often with no follow-up care arranged.

President Kennedy's plan for a well-funded network of community mental health centers was a well-intentioned and ambitious goal, but half of these centers were never built, and the reality is that some patients are too ill to live outside of the hospital setting without constant family or caregiver support. The result has been 350,000 severely mentally ill in prison and another 250,000 homeless on the streets (Frances & Ruffalo, 2018).

Multiple forces keep the current non-system of care going, including disproportionate rationing of care for mental and substance use disorders; the use of jails as mental hospitals; the lack of structured and supervised housing for persons with severe mental illness; the lack of affordable housing; the lack of adequate crisis intervention services; and the lack of realistic application of civil commitment standards. In the case of civil commitment, self-injury and aggression may be prioritized, but the more common problem of an inability to care for oneself is frequently ignored. Civil commitment statutes generally require the monitoring of treatment and outcomes, and there are few interventions available with that option.

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The question of involuntary treatment also has legal and moral dimensions. Society has a well-recognized role in protecting individuals with impaired decision-making and functional capacity. Guardianship, conservatorship, and civil commitment statutes are written to protect individuals from the effects of disability as well as to preserve the rights of these individuals by due process. Involuntary treatment involves a judicial review and process, an adversarial hearing, and an ongoing review. Personal autonomy is often considered the basis for rejecting involuntary treatment, but it is considered at every step in the process. The critical clinical and legal question is whether the personal autonomy in question is a product of mental illness or the decisions of a competent person.

Treatment Works

Psychiatric outcomes for treating major disorders are well-researched and generally positive. In the case of involuntary treatment, the outcomes are similar. Relevant research questions in that population include the effects of diagnostic heterogeneity, premorbid risk factors, associated substance use diagnoses, variable civil commitment and screening processes, access to resources if involuntary treatment is ordered, and the fact that it is a time-limited process. The court process typically includes the monitoring of progress.

In the case of Frank, as noted above, psychiatric hospitalization and the initiation of antipsychotic treatment would likely have stabilized his condition and helped avoid a catastrophic ending. Unfortunately, as resources dwindle and commitment laws become more stringent, patients like Frank are shut out of the system.

Conclusion

Involuntary treatment is a legal intervention to treat people with severe mental illnesses that affect their ability to function on a day-to-day basis and, in the extreme, pose a direct threat to their own safety or the safety of others. On a historical basis, the concept has evolved as a way to substitute the judgment of society for that of the compromised individual. Acute care clinicians see the process work on an ongoing basis by comparing the functional capacity and experience of the untreated individual to the same person after treatment. Debates about this process frequently focus on the adversarial legal process and a rights versus treatment debate. Current statutes are a compromise and not an ideal solution.

The main limitation in reducing involuntary treatment has been the fragmentation of care by governments and healthcare organizations. Rationed care reduces care to all patients with mental illnesses, but most of the burden will fall on people who are not aware of or seeking help for their problem. Active outreach by the necessary services and a more enlightened approach by courts will do a lot more to reduce involuntary treatment than an ongoing rights versus treatment debate.