Bad Science Makes Bad Law: How the Deference Afforded to Psychiatry Undermines Civil Liberties (original) (raw)
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There is a developing robust literature about mental health courts (MHCrts) in the United States, and researchers have begun to focus on a broad range of empirical issues, such as the extent to which defendants are competent to waive their trial rights in such settings, the significance of diversion, etc. Also, advocates and other scholars have engaged in vigorous debates about the value of these courts, and the extent to which they do or do not preserve and protect due process and civil liberties values. Finally, those who locate themselves in the therapeutic jurisprudence (TJ) movement write frequently in support of them – and other problem-solving courts in general – as the best way to optimize TJ values in the court process. But there has been virtually nothing written from the perspective of what college professors always called “Compare and contrast.” How are these MHCrts like or unlike the involuntary civil commitment courts which, for more than 40 years have adjudicated the question of whether individuals should or should not be committed involuntarily to inpatient psychiatric hospitals and which have been characterized as “greased runways” to such commitment? In the past, I have written about how, in these courses, adjudication takes place in “pitch darkness” in cases presided over by disinterested judges in which patients were often represented by even less-interested lawyers. We are still confronted with studies from the 1970s that showed that pro se patients had a better chance of release in some states than did those with assigned counsel. The disconnect between the prevailing “takes” on MHCrts and traditional civil commitment courts is profound. Yet, there has been virtually no commentary in the literature on that disconnect. In this paper, I “compare and contrast” the two, and demonstrate that the reasons that the disconnect is so total is that the courts come from utterly dissonant perspectives. MHCrts – at least the successful ones – began with the conscious goal of promoting TJ in a way that did not impinge on civil liberties; traditional civil commitment courts grudgingly gave lip service to those Supreme Court cases that established baseline due process procedures in commitment cases, and generally have shown little interest in the nuances and complexities of the cases that are being decided, a lack of interest often reflected in the work done by lawyers in those cases. I conclude that attorneys must embrace the principles and tenets of therapeutic jurisprudence as a means of best ensuring the dignity of their clients and of maximizing the likelihood that voice, validation and voluntariness – the basic precepts of TJ – will be enhanced, and further believe that a rejection of the traditional civil commitment court model and an embrace of the modern mental health court model is the single best way that this dignity can be provided to litigants in these courts.
This article presents results of a national survey of psychiatrists in the United States about involuntary civil commitment. The questionnaire, created by the researcher, asked respondents about their knowledge of and support for various legal standards surrounding inpatient and outpatient commitment. Data from 739 members of the American Psychiatric Association indicated support for relatively limited definitions of mental disorder for purposes of commitment and relatively limited legal grounds for commitment. Respondents frequently gave inaccurate responses about the grounds for commitment in their states, as well as whether involuntary outpatient commitment is allowed in their states. A comparison of results with prior surveys of psychiatrists is provided, and policy implications are discussed.
Changing Trends in Mental Health Legislation: Anatomy of Reforming a Civil Commitment Law
Journal of Health Politics, Policy and Law, 1996
In this article, we discuss changing trends of mental health legislation in the United States using a case study of the process of reforming the civil commitment law in New Jersey. That state's new commitment law, commonly called the "screening law," was enacted after a thirteen-year legislative process. Changes in the orientation of the proposed legislation and the dynamics of the process of reforming the commitment law in the state exemplify changing national trends in civil commitment legislation. We consider how the proposed legislation shifted in emphasis from a strong civil libertarian orientation to a social service approach. We assess the role of various interest groups, their negotiations, and the compromises that emerged. Our analysis of the process shows that changes in the social and political environment were the decisive factors that stimulated the process of reforming the civil commitment laws. Many of these changes occurred outside the mental health system and could be neither anticipated nor controlled by the various parties. Our examination of the process and the final outcome of this legislation reveals how organizations and interest groups, in their efforts to adapt to changing conditions, shaped the legislative outcome according to their interests. During the past twenty-five years, U.S. public policy involving civil commitment of persons with mental illness swung like a pendulum between
The wrong handle": flawed fixes of medicolegal problems in psychiatry and the law
The journal of the American Academy of Psychiatry and the Law, 2005
The practice of psychiatry, the severity of some men- tal illnesses, the rights of mental patients, and the available resources for evaluation and treatment of mentally ill persons all pose significant challenges for the involved parties, including patients, practitio- ners, institutions, legislatures, and social systems. Making the system work at all inescapably creates many problems of access to and delivery
This Article examines civil defendants' use of evidence of a plaintiff's alleged current or prior psychiatric diagnosis or treatment by analyzing and critiquing the three primary rationales offered in support of the relevancy of such evidence: (1) to suggest an alternative cause of the plaintiff's alleged psychological injuries; (2) to impeach the plaintiff's credibility by asserting that a mental illness interferes with the plaintiff's ability to recount or to perceive events accurately; and to reveal certain propensities that inform how the plaintiff likely acted with respect to the events at issue in the litigation. While attaching a label of mental disorder can be a powerful means to discredit a person, its role as trial evidence goes largely unexamined, unquestioned, and unregulated by courts. Few courts carefully consider whether evidence of a plaintiff's mental illness is truly probative of the issues for which it is purportedly offered. I explain that evidence of a plaintiff's psychiatric history poses a significant risk of unfair prejudice to the plaintiff in light of the persistent and pervasive stigmatizing effects of psychiatric diagnoses. Regardless of the relevancy theory advanced by defendants in support of admissibility, fact finders likely use such evidence improperly to discount a plaintiff's credibility and to conclude that the plaintiff possesses certain behavioral propensities that weigh in favor of a finding for the defendant. I conclude by urging courts that face admissibility questions concerning such evidence to closely scrutinize the purported relevancy of the evidence and to exercise their discretion to guard against factual findings that are ultimately traceable to the stigmatizing effects of mental illness.
Psychiatrists' opinions about involuntary civil commitment: results of a national survey
The journal of the American Academy of Psychiatry and the Law, 2007
This article presents results of a national survey of psychiatrists in the United States about involuntary civil commitment. The questionnaire, created by the researcher, asked respondents about their knowledge of and support for various legal standards surrounding inpatient and outpatient commitment. Data from 739 members of the American Psychiatric Association indicated support for relatively limited definitions of mental disorder for purposes of commitment and relatively limited legal grounds for commitment. Respondents frequently gave inaccurate responses about the grounds for commitment in their states, as well as whether involuntary outpatient commitment is allowed in their states. A comparison of results with prior surveys of psychiatrists is provided, and policy implications are discussed.
2006
This is the thirty-second report in a monograph series authorized by the Hoard of Trustees of the American Psychiatric Association to give wider dissemination to the findings of the Association many commissions. committees, and task forces that are called upon from time to time to evaluate the state of the art in a problem area of current concern to the profession, to related disciplines, and to the public. Manifestly. the findings, opinions, and conclusions of the Task Force Reports do not necessarily represent the views of the officers, trustees, or all members of the Association. Each report. however, does represent the thoughtful judgment and consensus of the task force of experts who formulated it. These reports are considered a substantive contribution to the ongoing analysis and eva]uation of problems. issues. and practices in a given area of concern. Lawrence Hartman. M.D. President. APA 1991-1992
Alaska L. Rev., 2008
A commonly-held belief is that locking up and forcibly drugging people diagnosed with mental illness is in their best interests as well as society's as a whole. The truth is far different. Rather than protecting the public from harm, public safety is decreased. Rather than helping psychiatric respondents, many are greatly harmed. The evidence on this is clear. Constitutional, statutory, and judge-made law, if followed, would protect psychiatric respondents from being erroneously deprived of their freedom and right to decline psychiatric drugs. However, lawyers representing psychiatric respondents, and judges hearing these cases uncritically reflect society's beliefs and do not engage in legitimate legal processes when conducting involuntarily commitment and forced drugging proceedings. By abandoning their core principle of zealous advocacy, lawyers representing psychiatric respondents interpose little, if any, defense and are not discovering and presenting to judges the evidence of the harm to their clients. By abandoning their core principle of being faithful to the law, judges have become instruments of oppression, rather than protectors of the rights of the downtrodden. While this Article focuses on Alaska, similar processes may be found in other United States' jurisdictions, with only the details differing.