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Sunday, April 22

On Mental Illness, Part Deux

Thanks to everyone for their kind and intelligent comments to Part Un below. I want to talk with you today about the intersection between mental health and American jurisprudence. It's not a pretty picture, and it raises some challenging questions. It is a complex, dense problem, and there are no easy answers.

As late as two generations ago, the mentally retarded and mentally ill populations were simply "put away"; the poor to state mental health institution (in Florida, the state mental hospital was called Chattahoochie; when we were teenagers, we always used "Chattahoochie" as slang to imply someone was just not right in the head), the rich to nicer, private "sanitariums". The family rarely discussed "Aunt Jill" and "Uncle Joe", and when the kids asked about them, they were hushed up. Mental illness was not discussed, not acknowledged unless absolutely necesssary. If a person "needed" to be institutionalized, the family went to the local judge, and they were granted commitment papers for the "care, maintenance and tratment" of the patient.

In the late 1960s, a lawsuit called O'Connor v. Donaldson was filed by the ACLU on behalf of a mental patient had been confined (coincidentally at Chattahoochie) because of some psychotic episodes. During his confinement, he regularly petitioned for his release, contending that the hospital was depriving him of his consitutional right to liberty. The case eventually reached the Supreme Court, and the Court's unanimous decision was very direct: a person who is mentally ill is a person nonetheless, and therefore is entitled to the same constitutional rights as any other person; and that under the 14th Amendment's guarantee of liberty, a mentally ill person may not be deprived by the state of his liberty, without due process of law. In this context, due process to the Court meant that, "[a] finding of 'mental illness' alone cannot justify a State's locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the 'mentally ill' can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom."

The O'Connor decision worked a tremendous shift in legal landscape vis-a-vis mental health issues. As the decision ultimately was refined by lower court cases, we end up with the legal landscape we have today: A mentally ill person cannot be confined (deprived of his liberty) unless he is an imminent danger to himself or others. To justify depriving him of his liberty, the state must prove the danger by clear and convincing evidence (a lower burden of proof than reasonble doubt, but still a high standard of proof). Assuming an involuntary commitment, he may be institutionalized only so long as he remains a danger to himself or others, and even then, periodic court hearings must be held to determine whether the patient is a continued threat. Once determined not to be, he must be released unless he agrees to further treatment voluntarily. In exigent circumstances, a state may lock a patient up without a court hearing, but this "temporary hold" cannot exceed a designated period of time (which varies from state to state but usually is something like 72 hours) before a court hearing must be held. A mentally ill person may be not be forced to accept treatment (i.e., forceably medicated) against his will.

(I've been through this cycle a number of times with my mother. She would have a psychotic episode and get taken to the county mental health facility, she would be medicated and stabilized, occasionally she would commit herself voluntarily for an additional few days or a week, and then the facility would have to let her go. (The ultimate "catch and release", if you will.) She would be referred to the county mental health clinic for outpatient treatment, which she would promptly ignore. Her medication expended, she would go off it, hold it together for a period of time, but inevitably, there would be another psychotic outburst. My mother was lucky in one respect, and that is that she had a house to go back to and an income from social security and her children. Others are not so fortunate.)

This Supreme Court decision is, ladies and gentlemen, in a nutshell, how we ended up with several million mentally ill people living on the streets. Civil liberties cannot be constrained by practicalities such as what happens to the mentally ill when you say they cannot be confined against their wills if they are not a danger to themselves or others. If they are not committed to the state's care, if the state may not restrain them, then they must be left to their own devices. If you live in a city of any size, you see the mentally ill every day, walking the streets unkempt, muttering to themselves, pushing a grocery cart with all their posessions inside, living under bridges, queuing in the line at the soup kitchen. I bet if you're like me, you often avert your eyes because it's too painful to see that bag lady having a conversation with the air, or you move out of the way so that the crazy man screaming his greivances as he strides down the block won't focus on you. What would you have the state or city government do? Pick them up and take them where? Supposing the bag lady was taken to a local mental health clinic and she didn't want to stay, then what? In light of O'Connor, she can't be forced to stay and she can't be forced to take medication.

Did Ronald Reagan have his fair share in making a bad situation worse? He certainly did. Ronald Reagan never met a social welfare program that he didn't love to cut, and mental health services were certainly no exception. Were numerous state mental institutions closed? They certainly were, but given the legal standard for commitment enunciated by the Court in O'Connor and its progeny, this makes complete sense. There was no longer a need for mass institutions such as these because very few of their inmates ever were an imminent threat to themselves or others, they were simply being warehoused. Under the Court's decision in O'Connor, they had to be released regardless of whether there were adequate arrangements for their continued care. A sensible policy toward community based treatment, with adequate financial support, may or may not have ameliorated the sufferings of the numerous mentally ill people released, but we will never know. These programs were underfunded well before Reagan came to office because of the financial drain of the Viet Nam War and the stagflation of the late 1970s. It also does not change the fact that treatment cannot be forced against those unwilling to accept it. Even in the ideal situation of a supportive family with the monetary and psychological resources to deal with a mentally ill family member, there is no certainty that a patient will accept the need for treatment. I am the last person ever to defend anything that St. Ronnie did, but I cannot lay the full blame for the current state of mental health services at his doorstep. The blame, if we can call it blame, lays with the Bill of Rights. This is one of the costs of our liberty.

So, was the Supreme Court wrong in O'Connor? In the absence of imminent danger, should the state have more authority to involuntarily commit a person, or force a mentally ill person to accept treatment, "for his own good"? I hope you appreciate fully the civil liberties implications before you answer. Among the Justices on the Supreme Court that decided the O'Connor case were the liberal lions of the last century: William O. Douglas, William Brennan, Thurgood Marshall. These guys were absolutists on civil liberties issues. I am sure they understood some of the consequences that would flow from their decision. To them, the constitutional issue was more important.

We all would like to see the mentally ill receive treatment, even those, like my mother for many years, who cannot or do not recognize that they need treatment. We want to see these folks receive treatment from our impulse to help, from a place of compassion. As we struggle to understand what could have been done to help Cho before he went off like the bomb he was, remember why the Supreme Court says that we cannot willy nilly lock people up, that there must be some due process before even the mentally ill are deprived of their liberty. You and I might want to see these people committed for the right reasons, because we want them to be helped. But as a fundamental matter of our constitutional rights, it would be the wrong result.

Because we must recognize that when we grant the State the power to compel, to restrict and impinge upon one person's civil liberties, there is the possibility (indeed, with current regime, one might say probability) this power may be misused. As we struggle through the questions of why Cho wasn't locked up so he could not have committed this awful act, think of what the Supreme Court said in O'Connor and ask yourself whether you would want it to be easier for the current government to lock people up for being mentally ill? If you answer yes to that question, I'll leave you with this final thought. It was commonplace in the Soviet Union to institutionalize political dissidents for mental illness. After all, they must be crazy if they disagreed with the perfect political state.

[Sorry for the long post, but even this just scratches the surface. I could go on for days.]

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