Incarceration & Mental Health Care Treatment

As we move into an epoch of increasing awareness of mental illness and indeed higher incidents of same, we are confronted with a gut-check test of our commitment to two features of fundamental human rights, namely, the concept of self-determination and the idea that society and the State do not own persons or citizens but instead that people own their bodies.

When it comes to physical illnesses – from cancer, MS, and AIDS to an array of non-life-threatening ailments – our right to bodily integrity means individuals have a constitutional right to refuse medical treatment. See Curzon v. Diretor, MDH:

It is a well-established rule of general law ... that it is the patient, not the physician, who ultimately decides if treatment - any treatment - is to be given at all... The rule has never been qualified in its application by either the nature or purpose of the treatment, or the gravity of the consequences of acceding to or foregoing it... he rationale of this rule lies in the fact that every competent adult has the right to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks, however unwise his sense of values may be to others. Curzon, 497 U.S. 261,307[internal citations and quotations omitted]

These rules and legal principles do not apply to mental illness. The right to refuse treatment is severely truncated. And this is obvious when you consider the existence of “involuntary commitment,” which almost by definition betrays the idea that sufficiently competent persons get to make the call.

You might believe that only people who are not competent to make a free and informed decision about their treatment can be incarcerated involuntarily in a mental hospital and forced to undergo treatment. The truth is otherwise. And here's why:

Thousands of people each year who are suffering from severe depression and/or some type of Bi-Polar condition find themselves experiencing the intrusion of serious suicidal thoughts and check themselves “voluntarily” into the hospital because they are afraid they might actually kill themselves. The moment they check themselves in their 'voluntary' status becomes irrelevant and if they attempt to leave or reject proscribed treatments they are subject to legal process to transform their incarceration to the status of 'involuntary.' The legal test for determining the legality of holding a person against their will in a locked ward is whether they are a danger to themselves or others.

Because they've checked themselves in as experiencing suicidal ideation it follows they are a danger to themselves and can be kept in the locked ward until the psychiatric professionals are satisfied they have responded to the proscribed chemical regime. This necessarily means they will be locked up past the time they have ceased to be suicidal. It necessarily means they will be held even when they are no longer a danger to themselves.

How do Psychiatrists know a person is experiencing suicidal ideation? Well the patient has to report it. Once they do, they are stuck and if they report they no longer feel suicidal this self-reporting is not given the equivalent credence that the previous self-report was given. They are suicidal until proven non-suicidal. And must remain in the locked ward and cannot refuse any proscribed treatment without engaging in a futile legal process that can result in their commitment being extended by weeks or months.

In any hearing they might be able to get, the hospital Psychiatrist(s) attest to the patient being a danger to themselves or others, and the patient lacks the ability to procure an independent Psychiatric evaluation to contradict the Hospital's doctor(s) and thus the Court has only the testimony of the Hospital's doctor upon which to verify whether the patient is indeed a danger to themselves or anyone else. With the deck so stacked, the patient has little way of prevailing even where it is the case that they are not in fact by the lights of the psychiatric profession a genuine danger to themselves.

Now you might ask why it is that when a person comes into the hospital voluntarily seeking treatment, this act by its nature doesn't indicate two things: competence and a remarkable unlikelihood of their immediate intent to commit suicide. Such a patient is demonstrating good decision making and is attempting to ensure they won't kill themselves – a straightforwardly competent and non-suicidal act.

Finding that irrespective of the 'voluntary' nature of their commitment they are kept in a locked ward and denied any input or decision-making as to their treatment, any desire to leave is not interpreted as a legitimate concern for their own healthy sense of autonomy but is instead explained as evidence of their loss of competence to make the “correct” decisions for themselves, and thus becomes evidence for their incompetence and willingness to be a harm to themselves.

You can walk away from chemotherapy even if the logical if not necessary result will almost certainly be your own death; you can in effect make a suicidal decision about your medical treatment, except if that treatment is ostensibly for being suicidal.

I offer these consideration as a prelude to a further discussion of the moral and political implication of our nation's commitment regime. As time goes on I will attempt to make the case that the Psychiatric profession accepts the idea that incarceration can be part of mental health treatment an equation it should reject. We have greater protections in our law to ensure that accused criminals are not subject to incarceration than we do for people who most certainly have not done anything wrong and who in many cases have done something exactly right by asking for treatment. Incarceration, in other words, can never be consistent with mental health care and treatment as it invades and demeans and disrespects the very thing it hopes to heal – our dignity and value as autonomous and free persons.