The Legal and Moral Problems of Involuntary Commitment

Amanda Pustilnik and D.J. Jaffe seem to be arguing that “schizophrenia is a disease of the brain in the same sense that Parkinson’s disease and multiple sclerosis are diseases of the brain,” as E. Fuller Torrey puts it. If so, it makes sense, as Jaffe suggests, to have a legal procedure for determining when that disease has so impaired someone’s mental faculties that he is no longer capable of managing his own affairs, in which case a court-appointed guardian could make treatment decisions on his behalf. But Allen Frances—who, as the man who literally wrote (or at least edited) the book on mental disorders, surely counts as a reliable authority—forthrightly declares in his opening essay that “mental disorders most certainly are not diseases.” He argues that they nevertheless are useful “constructs,” although elsewhere he has called them “bullshit,” saying, “There is no definition of a mental disorder…. You just can’t define it.” I repeat these quotations not to score cheap debating points but because I am genuinely confused about how advocates of involuntary psychiatric treatment understand the conditions that supposedly justify it.

Another apparent inconsistency that gives me pause: Jaffe cites Ted Kaczynski, the Unabomber, as an example of someone whose “untreated mental illness” drove him to murder. By contrast, Frances says, “I believe that the recent run of mass murderers whose killings are based on fringe, extremist political beliefs are usually better handled as murderers in the legal system than as mental patients in the psychiatric—even if their beliefs seem offensive and bizarre.” If Kaczyski, who produced a manifesto explaining in great detail the motivation for his crimes, does not count as a murderer “whose killings are based on fringe, extremist political beliefs,” who does?

Distinguishing between eccentric beliefs and psychotic delusions is no mere academic exercise, since such judgments determine who can or cannot escape criminal liability and who can or cannot be forced to undergo treatment—especially if the rules for civil commitment are loosened in the way Jaffe proposes. Should everyone who behaves like Jared Lee Loughner did before he went on his shooting rampage in Tucson be subject to preventive detention in a mental hospital? The recent case of Brandon Raub, who was detained for psychiatric evaluation in Virginia based on the wacky political opinions he expressed on Facebook, gives you a sense of how that might work in practice. In retrospect, it is very easy to identify people whose bizarre opinions and off-putting actions signaled a homicidal future. Before the fact, not so much.

While Jaffe says people with “a very serious and persistent mental illness like schizophrenia” are prone to violence, Pustilnik says they are not. “As a group,” she writes, “people with these conditions [“severe mental illnesses”] are no more likely than typical people to break the law or to commit a violent crime.” And although Jaffe seems confident that psychiatrists can reliably predict violence, research does not support that sanguine view, as Jeffrey Schaler points out. This is a real problem if “danger to others” is the justification for stripping people of their freedom.

Appealing to libertarians, Jaffe wants to flip that view of reality, saying coercive psychiatric treatment actually restores people’s freedom. One way we know this, he says, is that most people who are civilly committed for treatment of schizophrenia “retrospectively express gratitude.” Frances likewise writes that “the majority [of involuntarily treated mental patients] are unhappy at the moment when involuntary treatment is imposed on them, but they understand why it was necessary once they have recovered from their acute symptoms.” This retroactive validation of coercion seems suspect to me, not least because formerly confined patients may surmise (perhaps correctly) that agreeing they were correctly diagnosed and properly treated helps them remain free by showing they have recovered their senses.

Then, too, retrospective gratitude could be used to justify all manner of paternalistic interventions, whether or not they involve a psychiatric diagnosis. If the government began kidnapping obese people and forcing them into a strict diet-and-exercise program, how many newly thin former captives would eventually be thankful for the help? Let’s not find out.

Although I am not ready to endorse that policy, I think people should be able to sign up for “fat camp” (or for databases of problem gamblers who want to be barred from casinos) if they feel they need the external discipline. Through such arrangements, people can bind their future selves to rules they otherwise might not follow. That sort of precommitment may be analogous to the “advance directives” suggested by Frances.

Whether we measure success by violence prevented or misery mitigated, the question remains: How can a conscientious mental health professional know in advance that forcible treatment is justified, especially when there is no objective test for the will-impairing condition that may or may not be present and may or may not be an actual brain disease? And what level of confidence should we expect?

Back in 1974, when he seemed more inclined to worry about such details, Torrey wrote:

It is better that we err on the side of labeling too few, rather than too many, as brain diseased. In other words, a person should be presumed not to have a brain disease until proven otherwise on the basis of probability. This is exactly the opposite of what we do now as we blithely label everyone who behaves a little oddly “schizophrenic.” Human dignity rather demands that people be assumed to be in control of their behavior and not brain diseased unless there is strong evidence to the contrary.

It is not clear what standard of proof Torrey had in mind. “On the basis of probability” suggests something like a “preponderance of the evidence” standard (i.e., this person is more likely than not to be suffering from a will-impairing brain disease), while “strong evidence” might mean a heavier burden of proof (clear and convincing?). Requiring proof beyond a reasonable doubt, the standard used in criminal cases, might leave out many people who, by their own future judgment, would benefit from treatment. A more relaxed standard, however, risks locking people up and forcing them to take psychoactive drugs—no small infringement on liberty—for no good reason.

Before deciding how to balance those risks, shouldn’t we have more confidence that the “constructs” championed by Frances and the cognition-crippling brain diseases to which Jaffe likens them are fundamentally similar? The fact that mental disorders are treated by psychiatrists rather than neurologists suggests otherwise. So does the rhetoric equating mental illnesses with biological diseases. As Szasz says, one telling difference is that people do not go around insisting that cancer or Alzheimer’s is every bit as real as schizophrenia.

Pustilnik likens mental illness to a boulder pinning a hiker who “is pretty far gone and can’t communicate with you.” She sees two choices for someone who happens upon him: “You could remove the boulder, freeing him. Or you could shrug and say, ‘Hey, he must have chosen to be under that rock. That’s not my problem.’” To my mind, the crucial difference between helping the hiker (even without explicit consent) and forcibly treating someone diagnosed with a mental disorder is that the boulder indisputably exists, and the hiker is clearly trapped by it. A closer analogy would be seeing someone lying on the ground, surmising that he is pinned by an invisible boulder, and whisking him away, ignoring his objections and dismissing his explanation that he was merely resting. Invisible boulders pose serious legal and moral problems that cannot be resolved by compassion and good intentions.

Also from This Issue

Lead Essay

  • Strategies of Psychiatric Coercion by Jeffrey A. Schaler

    Professor Schaler notes that mental illness differs in several important ways from physical illness, and these ways make a mockery of conventional diagnosis. Nonetheless mental illness plays an important role in our legal system; it permits psychiatrists to exercise a significant degree of coercion. Schaler challenges this arrangement and argues that those whom we may classify as mentally ill are still deserving of their liberties, including the liberty to refuse treatment. Schaler also questions whether “insanity” is an appropriate legal fiction at all.

Response Essays

  • A Clinical Reality Check by Allen Frances

    Professor Frances agrees that mental disorders are not diseases properly speaking, but he maintains that they are nonetheless useful analytic constructs. As to coercive psychiatric treatment, he argues it can indeed be a horrific abuse. Still, in some especially desperate cases it will be necessary to save lives and to prevent even greater harms. He recommends several practices designed to minimize the frequency and risks of coercive treatments.

  • Psychiatrists Create Their Own Reality by Jacob Sullum

    Jacob Sullum asks the mental health establishment for consistency: If mental disorders are not diseases, what justifies involuntary treatment? Evidence of criminal conduct is a matter for law enforcement, not mental health. And how is it that we punish sexual predators (on the theory that they are responsible) — then treat them afterward (on the theory that they aren’t)? Psychiatric diagnoses are ultimately arbitrary, Sullum argues, and they lead to the arbitrary exercise of power.

  • Calling Mental Illness “Myth” Leads to State Coercion by Amanda Pustilnik

    Amanda Pustilnik argues that the most profound violations of liberty in this area don’t come from coercive psychiatry, but from the warehousing of the mentally ill in our criminal justice system. Such people aren’t more likely to commit crimes, but they fare badly in the criminal justice system, where unusual behavior leads to convictions, longer sentences, parole violations, and reincarceration.

The Conversation