Reply to Allen Frances

I appreciate the cordial manner in which Dr. Allen Frances makes his point, agreeing with several things I wrote in my lead essay, “Strategies of Psychiatric Coercion.” Perhaps one of his more important concessions is that mental illness is a myth. He makes several serious mistakes, however. He did not read and study the meaning and purpose of legal fiction in my essay. Additionally, he claims I believe in “worthless myths.” As readers will see, there are important reasons why people believe in and perpetuate myths concerning psychiatry and mental illness.

Dr. Frances titles his response “A Clinical Reality Check.” While he agrees that mental illness is a myth, he avoids any mention of the nefarious ways psychiatrists coerce innocent persons in the name of practicing medicine. Psychiatrists lie when they say patients lack insight, as if this putative lack of insight is the same as literal unconsciousness. Psychiatrists lie when they assert that adults are children. And psychiatrists lie when they say they can accurately predict who is going to harm self and others.

Psychiatry has nothing to do with medicine, yet Dr. Frances persists in attacking me and colleagues who share my view for “living in ivory towers” because we point out the truth about what is done to people erroneously called patients. Involuntary commitment is a form of assault and battery. The principle of primum non nocere is clearly absent when innocent persons are injected with drugs, forced into four-point restraints, shocked with electricity, and forced to believe in things that are simply not true about themselves. Normally, we call it slavery when people earn their living by depriving others of their liberty. George Orwell would undoubtedly call it doublespeak when slavery is called freedom. However, Dr. Frances makes it clear that what he does is not the practice of medicine. He states that he does not believe in mental illness, and since mental illness does not exist, we must examine exactly what he does in the name of practicing psychiatry, clearly something other than medicine.

Dr. Frances’s Scotoma: The Reality of Legal Fiction

In my opinion, one of the most egregious of Dr. Frances’s errors as a response to my lead essay is to completely avoid addressing the concept and practice of legal fiction. This is such an important principle that it bears repeating. At the risk of being ignored again, I want to quote two important legal sources as cited in the work of Thomas Szasz.[1] First, here is the definition of legal fiction from Black’s Law Dictionary: “An assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place … . A rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible.”

As Szasz comments: “In the American historical-legal experience, the classic example of a legal fiction is the status of the Negro slave as part-person or property. No less lofty a legal document than the United States Constitution defines enslaved blacks this way.”

Second, the distinguished legal scholar Lon L. Fuller explains how we must try to understand a particular concept as a legal fiction: “To obtain an understanding of any particular [legal] fiction we must first inquire: What premise does it assume? With what proposition is it seeking to reconcile the decision at hand? In most cases the answer is easily discovered.”

Thomas Szasz has clearly explained how mental illness is our key contemporary legal fiction since the Civil War, much as the United States Constitution defined slaves as less than whole persons, chattel property, and three-fifths persons prior to the Civil War. I will quote Szasz directly here, again from his book entitled Insanity, because either Dr. Frances did not read my description of mental illness as legal fiction in my lead essay or because he simply did not understand what I wrote, for whatever reason: “Of course, Fuller is right when he observes that the function of a legal fiction is easily discovered. ‘What premise does it (mental illness) assume?’ It assumes that the idea of illness is applicable to the mind (or whatever we mean by the mind). ‘With what proposition is it seeking to reconcile the decision at hand (psychiatric coercions and excuses)?’ It seeks to reconcile the decision to deprive innocent persons of liberty, and to exonerate guilty persons of responsibility, with the proposition that insanity is an illness which annuls free will and responsibility, and with the claim that so treating certain persons does not violate our commitment to a political philosophy of individual freedom and responsibility under the rule of law.”

I am grateful that Dr. Frances acknowledges that what he does to people in the name of psychiatry has nothing to do with medicine. But what does he do in the name of psychiatry? Let’s take a look via the title of his response to me, “”A Clinical Reality Check,” assuming the title has something to do with what he has written.

“Clinical reality check” is a gimmick in the form of a hidden premise, an enthymeme, here used to suggest that psychiatry in fact does have something to do with medicine, when in fact the only thing that is medical about psychiatry is that psychiatrists have medical degrees. Again, Dr. Frances says he does not believe in the existence of mental illness. It only follows that if there is no such thing as mental illness, there is no such thing as treatment for mental illness. Furthermore, he asserts that while mental illness is a myth, and thus treatment of mental illness must be a myth, neither are worthless myths. I agree wholeheartedly. I don’t believe I ever asserted that both myths were worthless, quite to the contrary. Serious things are done to people, and not done to people, in the name of these myths. One is to treat innocent persons as if they are criminals – involuntary commitment to a mental institution. The other is to treat guilty persons as if they are innocent – the insanity defense.

The Myth of Mental Illness Is Hardly a Worthless Myth

Coercion practiced in the name of medicine is still coercion, whether it is constitutional or not. State-sanctioned coercion practiced in the name of medicine is, I agree, not a worthless myth. The legal fiction that slaves were three-fifths persons was hardly a worthless myth either. That legal fiction served at least two purposes: One, it facilitated reduced representation in Congress for southern slaveholders. Two, it assisted in preserving the institution of slavery. The myth that slaves were less than human was very useful indeed.

Similarly, mental illness as legal fiction is clearly not a worthless myth. As I pointed out several times now, the premise of mental illness as legal fiction is that the mind can be diseased the way the brain can be diseased. Not allowing this myth to be challenged as fiction in the courts allows the state and its psychiatric agents to deprive persons of liberty without due process of law. It is also a way to deprive the victims of criminals of justice. The idea of mental illness, mistakenly equated with the legal term “insanity,” is key to exculpating guilty persons of responsibility for their acts. It is also used to absolve persons who commit socially unacceptable behaviors of responsibility for their behaviors. In other words, the idea of mental illness is used to deprive innocent persons of liberty as if they were guilty of committing a crime, and the idea of insanity is used to pronounce guilty persons innocent of committing a crime. (Insanity, like mental illness, is a myth.)

Labeling people mentally ill makes them less than human, below the law. Labeling people as mentally ill dehumanizes them by “removing” moral agency. Persons no longer choose to act; they are “acted upon” by mental illness. Behavior is no longer voluntary; it is more a seizure, a convulsion. Behavior becomes allegedly involuntary, a logical impossibility. Institutional psychiatrists as agents of a therapeutic state are not commanded by the state to deprive innocent persons of freedom and make guilty persons innocent, they are empowered by the state to do so. Psychiatrists make a choice, just as Nazi doctors in the 1930s and 1940s Germany made a choice. Neither were commanded by the state to deprive people of life, liberty, and justice; both were empowered by the state to do horrible things to people.[2]

Mental illness is hardly a worthless myth, but it is not a useful myth in the way Dr. Frances views it. Dr. Frances uses the myth of mental illness to uphold the rule of man; it is a very useful myth when it comes to destroying the rule of law. Since mental illness and its treatment do not exist, anyone is susceptible to being diagnosed with mental illness and treated for it; the state empowers people to make and implement such arbitrary decisions, people such as psychiatrists, like Dr. Frances.

The war on people masquerading as a war on drugs is also hardly based on a worthless myth. Drug warriors (prohibitionists) benefit a great deal from myths regarding drugs and addiction. Drugs are neither safe nor dangerous, neither good nor bad. It all depends on who uses them, how they are used, who says they are safe or dangerous, good or bad, and so on. Drug enforcement agents earn a living on the myths that sustain drug prohibition, as do prison builders. Illegal drug dealers also depend a great deal on similar myths regarding drugs and addiction; in fact, their very existence depends on prohibition.

When Dr. Frances claims that he is helping others, especially those who don’t want his help, and despite the fact he does not believe in mental illness, he benefits most—as a self-appointed engineer of the human soul. But just as the Bill of Rights has no postscript stating “for mentally healthy people only,” it also has no postscript indicating that decisions regarding who is most deserving of liberty and justice are best left to the discretion of institutional psychiatrists.

We Cannot Predict Who Is Going to Harm Self and/or Others With an Accuracy Greater Than That Expected by Chance

While deprivation of liberty through involuntary commitment to mental hospitals is often done in the name of protecting people from themselves and protecting others from them, the fact remains that we cannot determine who is most likely to harm self and/or others with a certainty or accuracy greater than that expected by chance. Dr. Frances’s fantasy about “clinical realities” notwithstanding, this is a statistical fact, not fiction. We cannot tell who is going to hurt others and who is going to hurt themselves.

I have debated some of the most hostile forensic psychiatrists in the country, and even they acknowledge this final point of mine. While the liberal press keeps clamoring for more involuntary commitment in order to protect innocent persons from crazy murderers, the most sophisticated multiple regression models using endless demographic variables are no more accurate in detecting who will and who won’t commit a heinous crime than closing one’s eyes and saying “eenie, meenie, minee, moe … .” The Tom Cruise movie Minority Report was science fiction. Dr. Frances conveniently ignores another part of our one reality: People own their bodies. Their bodies are their properties. Suicide is a right, not a crime. Even if we could accurately predict who is going to commit suicide, suicide is a right, not a disease. The right to end one’s life is as sacred as the right to life, liberty, and happiness.

As Thomas Szasz quoted Genesis 11:6-9 in his book entitled The Second Sin (Garden City, NY: Anchor Press, 1973):

And the Lord said, ‘Behold, they are one people, and they have all one language, and this is only the beginning of what they will do; and nothing that they propose to do will now be impossible for them. Come, let us go down, and there confuse their language, that they may not understand one another’s speech.’ … Therefore its name was called Babel, because there the Lord confused the language of all the earth.

There may be different opinions about reality, opinions that are accurate or inaccurate in the sense that one person perceives reality accurately, while another has a difficult time differentiating between what he imagines about reality and what actually exists. This is very different, however, from saying there are two realities, or multiple realities, – or a “clinical” reality versus a “non-clinical reality.” When Dr. Frances writes about a “clinical reality” he is suggesting that there can be more than one reality.

There is no such thing as clinical reality when it comes to psychiatry, be it contractual or coercive. There is also only one reality, this reality, the here and now. “Clinical” implies medical activity. Psychiatry is not a medical activity. Dr. Frances works both sides of the street. First he says there is no such thing as mental disease. Then he treats people for mental disease by forcing them into a prison called a mental institution. Why does he contradict himself so? Because there is plenty to gain from pretending to practice a fake form of medicine called psychiatry.

What Really Happens in Contractual Psychiatry or Psychotherapy?

Consider contractual or consensual psychiatry. A person, often referred to as a patient, or a client, engages in a conversation with his psychiatrist or psychologist, also perhaps a social worker or a counselor. They both try to influence one another using rhetoric. They try to influence one another to think about themselves, and/or each other, in particular ways because they find some benefit, meaning, or investment in doing so. The rhetoric can be forensic, focused on the past; ceremonial, focused on the present; political, focused on the future; there is rhetoric that is base, inauthentic; and there is noble rhetoric, what I refer to as truth-telling.

Being a patient is a socially assigned role. Being physically sick can at times have nothing to do with being a patient. A person malingers, he pretends to be ill, in order to avoid being responsible. A person who is really sick can choose to reject medical treatment and use prayer instead of going to a doctor. A Christian Scientist may be deathly ill and refuse to be a patient. A person can be coerced into a mental institution, where he is called a patient. Despite the fact he is in a prison called a hospital, and called a patient by psychiatrists and nurses at the locked institution, he is not physically sick. We now know he is not mentally sick.

How Do We Decide a Person Really Is Sick?

Consider a person who has lung cancer. We make a clinical and objective assessment about the presence of metastatic adenocarcinoma of the lung. The disease may very well be asymptomatic. A diagnosis is confirmed using different objective methods to gather signs that may indicate the presence of specific diseases. In physical medicine, the majority of objective diagnoses are conducted through tests that reveal signs of disease.

But as Thomas Szasz has written, diagnoses are not diseases. Many people say that schizophrenia, attention deficit hyperactive disorder, fibromyalgia, anorexia nervosa, and so on, are real diseases; after all, “they’re diagnosable!” Disease is not defined by symptoms, by how a person complains. Disease is defined by physiological signs, cellular abnormalities. Imagine, if you will for a moment, what asymptomatic depression looks like. I’m serious. What does asymptomatic depression look like? And what do you call a person who has the delusion that he suffers from delusions?

In the Diagnostic and Statistical Manual of Mental Disorders (DSM), signs and symptoms are confused at times. The difference between the two is important from a pathological and nosological point of view. There are no signs of psychiatric disorders that lead to the meaningful diagnosis of a psychiatric disease.

Imagine you wake up suffering with acute abdominal pain. The pain becomes severe enough that you call your internist and request an appointment. Your internist asks you how you feel. You say that you feel pain in your abdomen. Your doctor may ask you when the pain started, he may ask you to describe the pain, he may ask you what makes your pain feel better or worse, and so on. You tell him. What is occurring in this dialogue with your physician is that you are reporting symptoms. Symptoms are complaints. They are subjective. There are some diseases that are diagnosed through symptoms alone, but they are few and far between. Migraine, for example, which could be caused by any number of things.

A physician may prescribe medicines that aim at treating symptoms even without necessarily knowing the origin of the disease. Seizures or convulsions may have diverse causes that may not be detected. Still, an anti-seizure medication such as Lyrica or Dilantin might be given and the internist still may not know the cause of the disease, the cause of the seizures. Your internist may ask you to take it easy for a few days. He may suggest that you drink more fluids, cut back on overeating, drinking alcohol, whatever. He will usually add that if you do not feel better after a few days he will want you to return so that he can run some tests, tests like blood tests, a test for fecal blood, a urinalysis, and so on. Maybe he will want you to have a chest x-ray. These tests reveal the possible existence of what are called signs. Signs are objective indicators of disease.

If your doctor were to ask you to come back for surgery, because he suspects, based on your symptoms alone, that you have, for example, a hiatus hernia, you might very well ask him to hold off. You may want a second opinion. Even more so, you’d like to see the results of a few tests because you don’t want to rely on symptoms alone to justify surgery. You don’t want to rely on his intuition, even if he is comfortable doing so. You want clear, hard evidence before you go under the knife.

The accurate and definitive diagnosis of disease is accomplished through signs, not symptoms. While symptoms may lead to tests, which in turn reveal the signs of disease, symptoms alone are highly unreliable when it comes to disease diagnosis. In part this is because the symptoms of one disease could also be the symptoms of many diseases.

Many serious and life-threatening diseases, it seems, are also asymptomatic at their early stages. Imagine you are joining the United States Marine Corps. You’ve been taking good care of yourself, you work out regularly, your diet and weight are fine, you rarely get sick, and in order to join the Marines, you must pass your physical examination. Towards the end of your physical, your physician says “you look very healthy, Mr. Sullum, your blood pressure is fine, you report feeling fit as a fiddle, but we just want to take a few tests.” You agree, you’re not worried.

He asks you to come in, he says he’d like to go over some of your test results. You meet with him the next day. Your internist says, “Jacob, we found traces of blood in your urine and we have some concerns about why this exists, so we’d like to run a few more tests. There’s enough blood in your urine to suggest you need to have a cystoscopy.” The camera at the end of a long tube inserted into your urethra can detect tumors or problems in your bladder and elsewhere. In other words, the cystoscopy can be used to reveal the signs of disease, cellular abnormality, lesions, and so forth.

While symptoms may lead to tests, and tests lead to signs, disease is ascertained by signs, not by symptoms. Symptoms are unreliable when it comes to the accurate diagnosis of disease. Now here is the problem as it pertains to psychiatric diagnosis, disease and treatment. All diagnosis of psychiatric disease is based on symptoms alone. There are no signs of psychiatric disease. There are no signs of psychiatric disease. That’s why there are no psychiatric diseases.

The Lack of Validity (and Reliability) of the DSM

The reliability and validity of psychiatric diagnosis has always been embarrassingly low. Validity refers to whether or not a measurement accurately represents what it purports to represent, and reliability refers to the extent to which a diagnosis is consistent.

For example, some psychiatrists claim that multiple personality disorder is a type of thought disorder. Other psychiatrists claim that multiple personality disorder is a type of anxiety-based disorder, a dissociative disorder.

Most psychiatrists recognize that there are serious problems with diagnostic reliability in the DSM, but they do not seem to recognize the relationship between reliability and validity. High reliability does not equal high validity. Imagine you have a cough and on the basis of symptoms alone, one group of internists claim you have tuberculosis and another group of internists claim your have lung cancer. I suspect you are not going to be very confident in either group of doctors. The diagnosis is highly suspect because the reliability is exceedingly low.

Psychiatrists and authors of the DSM have long been concerned about this problem, and they have managed to come up with a group of symptoms that increases the reliability of a psychiatric diagnosis. However, just because reliability is high does not mean that validity is high. Validity, remember, has to do with the extent to which measurement accurately represents what it purports to measure. Do the alleged characteristics of bipolar disorder accurately represent a disease called bipolar disorder? No. There is no such thing as a mental illness called bipolar disorder. Yes, people’s moods go up and down, sometimes to an extreme degree, but that does not mean a disease exists. Remember, if you will, how in my lead essay I discussed the difference between description and explanation.

Do You Believe in Witches?

Consider the “diagnosis” of people called witches in early modern Europe. Witch detectors, also known as “prickers,” relied on a book called The Hammer of Witches, the Malleus Maleficarum, that allegedly guided them to ascertain or “diagnose” who was a witch and who was not. There were allegedly certain “signs” of being a witch. Signs were often confused with symptoms. For example, some people said that the signs of being a witch were certain markings and discolorations on their skin. Other signs were points in the body where blood would not come out when a needle pierced or pricked their skin. Bad breath was a sign. Tying the right thumb to a suspected witch’s left big toe, and tossing the person in a body of water allegedly revealed that a person was a witch. If the person floated, she was a witch. If she sank, she was not a witch. If she sank, they supposedly would dive in and save her. However, if they didn’t rescue her in time, it was allegedly not a problem. The important thing was that her soul was saved. Since she was not a witch, death didn’t matter.

And what was a witch? A witch was someone who had made a pact with the devil. Now here is where the analogy between witchcraft and present-day reliability and validity comes in. A person could meet all the symptoms and signs of being a witch and still never made a pact with the devil. Of course, no one made a pact with the devil. Why? Because the devil did not and does not exist. Similarly, God did not and does not exist.

Denying the existence of witches was one of the greatest sins a person during the time of the Inquisition could commit. And as I pointed out in my lead essay here, denying the existence of mental illness is an indication that a person is mentally ill. This lack of agreement with the psychiatrist, cleverly referred to as “lack of insight,” is given a medical sounding name, anosognosia, meaning feigned or real ignorance of a disease. This term, as I indicated in my first essay, is used to justify involuntary commitment to a mental hospital. It has also been used to justify variations on the insanity defense.

There is one other point I’d like to mention here, and perhaps elaborate on in my next reply: As the great British philosopher Sir Karl Popper pointed out, for any assertion, theory, or hypothesis to be scientifically worthwhile, the assertion must be falsifiable. How can we falsify the claim that schizophrenia, affective or mood disorders, anxiety-based disorders, personality disorder, or delusional disorders are real diseases? By gathering evidence to support our hypothesis? No. By trying to disprove the claim, theory, or assertion? Yes. This is the way all “respectable” science proceeds. Not so when it comes to psychiatry. And how can we falsify Dr. Frances’s claim regarding a “clinical reality”?

Before I close this second essay, I want to revisit what must, according to many of our readers, be the main point of Dr. Frances’s first essay. After leading with some very kind and much appreciated expressions of gratitude for the work that both Thomas Szasz and I have done separately and together for many years now, Dr. Frances kindly states the following:

I agree completely with Schaler and Szasz that mental disorders are not diseases and that treating them as such can sometimes have noxious legal consequences. But I strongly disagree that mental disorders are worthless ‘myths’ and think it greatly over-simplifies a complex clinical and legal conundrum to categorically assert that involuntary treatment should be completely eliminated.

While I am reluctant to speak for Dr. Szasz, as he and I both agree and disagree on many things, I believe it is safe for me to say that we both agree with Dr. Frances on this point: The myth of mental illness is far from worthless. God is a myth, as far as I am concerned, and clearly many people benefit from believing in God, especially the leaders of various religions in theocratic states. Similarly, many people benefit from believing in the myth of mental illness, especially psychiatrists and other authorities empowered to do and not do things to people living in a therapeutic state.


[1] Szasz, T.S. (1997). Insanity: The idea and its consequences. Syracuse, NY: Syracuse University Press, pp. 319–321, citing Black, H.C., Black’s Law Dictionary, rev. 4th ed, St. Paul, MN: West and Fuller, L.L. (1976). Legal Fictions. Stanford, CA: Stanford University Press, p 53.

[2] Proctor, R.N. (2003). Racial hygiene: Medicine under the Nazis. Cambridge, MA: Harvard University Press.

Also from this issue

Lead Essay

  • 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

  • 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.

  • 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.

  • 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.