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Psychiatry: Force of Law
by James B. Gottstein, Esq.
November, 2002
The purpose of this article is to set forth just the basic legal principles, underpinnings and practices employed in the widespread use of legal force to compel unwilling patients into locked psychiatric hospitals and, most importantly, force brain damaging drugs and other brain damaging treatments such as Electroshock upon them over their desperate, but hopeless objections. The companion article, Unwarranted Court Ordered Medication: A Call to Action, describes what might be done about it and this article is really background for that one. In addition, there are a number of excellent law review articles on the subject, a small sampling of which are listed at the end of this article.
The impetus for this article is the realization that the scientific basis for these forced treatments is non-existent and they are permanently damaging hundreds of thousands, if not millions, of people. No other field of medicine allows this sort of forced treatment. Of course, there are many people who see psychiatrists and voluntarily, even eagerly, take psychiatric medications. This article has absolutely no complaint about this. It is unwarranted forced treatment that is being addressed. This article also does not address the issue of somewhat more subtle coercion such as "if you don't take the medication, we will take your housing away from you" or "if you don't take your medication, we will have you committed to the mental hospital." This article is solely concerned with using the force of law (court orders) to compel people to submit to unwarranted psychiatric treatments they do not want. What unfolds is a legal system of Catch-22's for the patients and one where the courts have not only abdicated to "professionals" their responsibility to protect the rights of people coming before them, but also condones perjury in furtherance of this abdication.
This outright disregard of the law is done in the name of "we know what is right for the person" and therefore it is okay to ignore the law. It is not the purpose here to show that this assertion (of knowing what is right) is scientifically invalid. See, Psychiatric Myths and Scientific Research by Topic for places to learn about that. There is a growing revolt among principled psychiatrists over the abuses of forced psychiatry. For purposes here, it will only be suggested that one should be very skeptical of the validity of a process that relies on lies to achieve its results.
Involuntary Commitment
While using different specific language, most states provide that people can be involuntarily committed to a mental institution if the person is:
In many states, the dangerousness is supposed to be fairly immediate or "imminent." Also, many states provide that even if the person is not dangerous, he/she can be committed if he/she is unable to take care of him/herself. In many states this is called being "gravely disabled."
The United States Supreme Court case of Foucha v. Louisiana, 504 U.S. 71 (1992) held that "The State may [in addition to punishment for a crime] also confine a mentally ill person if it shows 'by clear and convincing evidence that the individual is mentally ill and dangerous." (emphasis added) In the recent case of Kansas v. Crane, 122 S.Ct. 867 (2002), the US Supreme Court reiterated:
"[w]e have consistently upheld such involuntary commitment statutes" when (1) "the confinement takes place pursuant to proper procedures and evidentiary standards," (2) there is a finding of "dangerousness either to one's self or to others," and (3) proof of dangerousness is "coupled ... with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality.' "
With respect to the gravely disabled concept, in O'Connor v. Donaldson, 422 U.S. 563, 575–76 (1975), the United States Supreme Court has suggested that inability to take care of oneself cannot be considered a sufficient finding of dangerousness unless survival is at stake: "a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." In Wetherhorn v. Alaska Psychiatric Institute, 156 P.3d 371 (Alaska 2007) the Alaska Supreme Court explicitly adopted this standard under the Alaska Constitution in invalidating Alaska's statute authorizing commitment for being gravely disabled in order to avoid a "substantial deterioration of the person's previous ability to function independently."
As is explored at more (but not great) length in Unwarranted Court Ordered Medication: A Call to Action and Psychiatric Myths, the scientific reliability of diagnosing someone with a mental illness is very questionable. Even more questionable is the ability to reliably predict dangerousness. Thus, a vigorous attack on the scientific basis of psychiatric (expert) testimony on these elements can be mounted. In addition, attacks can be made on the way that the psychiatrist arrived at his or her opinion. For example, what was the standard for determining dangerousness? What authoritative work was used that sets the criteria? What level of dangerousness? As is shown by the Corruption in the Courts section, below, the way that most of these commitment orders are obtained is quite simple. They lie about meeting the legal requirements for getting the orders.
With respect to the mental illness diagnosis, itself, when a psychiatrist decides that a person has a mental illness and that person disagrees, according to the psychiatrist, that disagreement just shows the person lacks "insight" and is in itself proof of the mental illness. Catch-22.
Forced Medication
The United States Supreme Court decisions of Youngberg v. Romeo, 102 S.Ct. 2452, U.S.Pa.,1982, Mills v. Rogers, 102 S.Ct. 2442 (1982) and Rennie v. Klein, 102 S.Ct. 3506 (Mem), U.S.,1982, have been widely interpreted as holding that federal constitutional safeguards involving a person's right to refuse psychiatric medications are mostly defined by state law and that federal protection is limited to whether the treatment is "a substantial departure from accepted professional judgment, practice or standards" (the "Professional Judgment" standard). Under the "professional judgment" standard, if scientifically invalid pharmacology is "accepted practice" then, it doesn't matter that it is invalid. Catch-22. For example, in Kulak v. City of New York, 88 F.3d 63 (C.A.2 1996), mentioned in the annotated list of cases, held that the involuntary administration of Haldol was a proper exercise of professional judgment. Ultimately, however, it makes absolutely no sense that "professional judgment" prevails when the professional judgment can be shown to be fallacious.
It has been suggested that this is not what the Supreme Court actually held and that the Professional Judgment standard never was supposed to apply to forced medication cases. See, Reevaluating Substantive Due Process as a Source of Protection for Psychiatric Patients to Refuse Drugs, Indiana Law Review, 1998, 31 INLR 937. This view is lent great credence in the June, 2003, case of Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174 (2003), which while a competence to stand trial case, demonstrates much less deference to "professional judgment" than has been suggested the Supreme Court held in Youngberg. In Sell, the U.S. Supreme Court laid down the following constitutional guidelines:
First, a court must find that important governmental interests are at stake.
Second, the court must conclude that involuntary medication will significantly further those concomitant state interests.
Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results.
Fourth, as we have said, the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition. The specific kinds of drugs at issue may matter here as elsewhere. Different kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success.
(italics in original) While Sell is a competence to stand trial case, it is hard to see how a person facing forced drugging in the context of civil commitment has fewer rights. Moreover, all of these guidelines are basic constitutional principles that should be applicable to the civil forced psychiatric medication context. The question of what federal constitutional rights people facing forced drugging in the civil context have should be taken to the United States Supreme Court in an appropriate case. PsychRights raised these issues in an Alaskan case, Myers v. Alaska Psychiatric Institute, S-11021, which invalidated Alaska's forced drugging statute and required the court to find by clear and convincing evidence that in addition to all of the statutory criteria, the forced drugging is in the person's best interests and there are no less intrusive alternatives available.
Corruption in the Courts
It turns out that psychiatrists, with the full understanding and tacit permission of the trial judges, regularly lie in court to obtain involuntary commitment and forced medication orders:
[C]ourts accept . . . testimonial dishonesty, . . . specifically where witnesses, especially expert witnesses, show a "high propensity to purposely distort their testimony in order to achieve desired ends." . . .
Experts frequently . . . and openly subvert statutory and case law criteria that impose rigorous behavioral standards as predicates for commitment . . .
This combination . . . helps define a system in which (1) dishonest testimony is often regularly (and unthinkingly) accepted; (2) statutory and case law standards are frequently subverted; and (3) insurmountable barriers are raised to insure that the allegedly "therapeutically correct" social end is met . . .. In short, the mental disability law system often deprives individuals of liberty disingenuously and upon bases that have no relationship to case law or to statutes.
The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone? by Michael L. Perlin, Journal of Law and Health, 1993/1994, 8 JLHEALTH 15, 33-34.
The psychiatric profession explicitly acknowledges psychiatrists regularly lie to the courts in order to obtain forced treatment orders. E. Fuller Torrey, M.D., probably the most prominent proponent of involuntary psychiatric treatment says:
It would probably be difficult to find any American Psychiatrist working with the mentally ill who has not, at a minimum, exaggerated the dangerousness of a mentally ill person's behavior to obtain a judicial order for commitment.
Torrey, E. Fuller. 1997. Out of the Shadows: Confronting America's Mental Illness Crisis. New York: John Wiley and Sons. 152. Dr. Torrey goes on to say this lying to the courts is a good thing. Dr. Torrey also quotes Psychiatrist Paul Appelbaum as saying when "confronted with psychotic persons who might well benefit from treatment, and who would certainly suffer without it, mental health professionals and judges alike were reluctant to comply with the law," noting that in "'the dominance of the commonsense model,' the laws are sometimes simply disregarded."
It is also well known that:
Competency, Deinstitutionalization, and Homelessness: A Story of Marginalization, Michael L. Perlin, Houston Law Review, 28 Hous. L. Rev. 63 (1991).
So, sad to say, in what will no doubt be shocking to most all Americans who have not experienced this process, but is not even surprising to those who are involved with the system, it turns out that the legal protections for people diagnosed as mentally ill are illusory and the court proceedings are fairly characterized as a sham. The effect of this is eloquently described by Professor Perlin:
Its toxin infects all participants in the judicial system, breeds cynicism and disrespect for the law, demeans participants, and reinforces shoddy lawyering, blase judging, and, at times, perjurious and/or corrupt testifying. The reality is well known to frequent consumers of judicial services in this area: to mental health advocates and other public defender/legal aid/legal service lawyers assigned to represent patients and criminal defendants who are mentally disabled, to prosecutors and state attorneys assigned to represent hospitals, to judges who regularly hear such cases, to expert and lay witnesses, and, most importantly, to the person with a mental disability involved in the litigation in question.
Sanist Attitudes, supra.
Law Review Articles
The following is just a small sampling of the Law Review articles on the subject have been written, focusing on those within the last 15 years.
minor modifications
1/10/2003
8/24/2003
9/21/2003
10/15/2003
4/13/2004
1/10/2005
1/13/2005
2/14/2005
3/23-5/2005
4/7/2008
copyright © 2002--2008 James B. Gottstein, All Rights Reserved