A new kind of "living will" would protect people from involuntary psychiatric intervention
In the last two decades there has been a widening public recognition that much of psychiatric practice rests on or involves coercion and violence. As this recognition grew, there emerged a concern, not least among former psychiatric patients, with "patient's rights," especially the right to reject psychiatric treatment.
Since politics, however, is the art of saying one thing and doing another, the mental health establishment—which is nothing if it isn't political—lost no time in coopting the patients' rights issue. Whereas formerly the code phrase in the mental health reform business was mental illness, now it became the rights of mental patients. The phrase the right to treatment has become a formidable new weapon in the psychiatrists' perennial struggle to oppress and control the "mental patient."
Today, coercive psychiatrists themselves freely admit that in the past mental patients were deprived of liberty by being involuntarily "warehoused." But that is no longer true, they say. Now mental patients are guaranteed their "right to treatment," especially with so-called antipsychotic drugs.
The enormous importance of the right-to-treatment rhetoric is illustrated by Kenneth Donaldson's famous appeal to the Supreme Court in 1975. The appeal was brought on Donaldson's behalf by a group of mental health reform lawyers on the ground that Donaldson's rights had been violated when he was deprived of treatment during incarceration in a mental institution. The appeal was supported by every major mental health group in the country, including such traditional enemies of the involuntary mental patient as the American Psychiatric Association and the American Orthopsychiatric Association.
It is important to emphasize and recognize that the mental health establishment's sudden concern with patients' rights has thus left completely untouched the age-old problem of what to do with the "mental patient" who refuses treatment. The stubborn fact is that ever since the birth of psychiatry, people have been deprived of the right to reject the ministrations of mad doctors. For 200 years or more, people were deprived of this right on the grounds that they were "insane" or "psychotic" and hence were incompetent to manage their lives. For the past 15 years or so—since the advent of the patients' rights rhetoric—people have been deprived of this right on the ground that their "true interests" require that they receive "life-saving psychiatric treatment." Although some of the legal protections provided to mental patients might have worked to their temporary advantage, I believe that, on balance, the added legal attention lavished on the so-called rights of mental patients has served only to authenticate further the legitimacy of depriving them of the only right that counts—the right to reject treatment, the right to reject being cast in the role of mental patient; in short, the right to reject psychiatric authority.
ENDING THE REIGN OF THE PSYCHIATRIC INQUISITION
Whenever force is an established method of resolving an ideological conflict, it is likely that the proponents and opponents of force do not speak the same language. For example, during the waning days of the Inquisition, the advocates of clerical tortures feared heresy and the imaginary terrors of eternal damnation and embraced the Inquisition as a protection against these dangers; whereas the critics of such torture feared the Inquisition and its very real terrors and embraced the ideas of the Enlightenment as a protection against these dangers. Today, the proponents of psychiatric coercion fear psychosis and the dire consequences of psychiatric neglect; whereas the opponents of such coercion fear psychiatry and the dire consequences of involuntary psychiatric interventions.
Recently, a report on "patients' rights" in Psychiatric News, the American Psychiatric Association's official newspaper, explained that psychiatrists no longer think "in terms of physical restrictions on freedom but of the shackles of [psychiatric] illness itself and the patient's right to freedom from this mental restraint." The report cited the views of two "experts" on patients' rights according to whom involuntary mental hospitalization and "treatment" actually increase the involuntary mental patients' freedom:
We would submit that commitment can be justified on the grounds of enhancing the individual's future freedom. If society insisted that freedom be the only purpose of commitment, commitment to achieve a real lack of unnecessary constraints from mental illness and to increase a patient's options could be justified.…Such an approach…would place psychiatry fully behind the principle that psychiatric institutions be utilized for increasing the freedom of the mentally ill.
This rhetoric of "psychiatric slavery in the name of mentally healthy freedom" explains a seeming paradox: the professional advocates of the rights of mental patients are the most determined adversaries of former mental patients' groups that are lobbying for mental patients' right to reject treatment.
Sadly, but not surprisingly, psychiatric reformers have sought and continue to seek to improve the mental health system by doing even more for the patient, for society, or for both. Thus, they have tried to protect the patient from himself or from those who might exploit or mistreat him; they have tried to protect society from the "dangerous" patient and his "illness"; and, most recently, they have tried to restore the "sick patient" to "mental health." Each of these efforts is paternalistic in principle and coercive in practice.
The individualist approach to the core problem of psychiatry—namely, coercion in the name of mental health-is radically different. Viewing psychiatric coercion as essentially similar to religious coercion, the individualist solution to it is also similar. That solution, exemplified by the Founding Fathers' position on clerical power, was to protect the free practice of religion but to abolish coercion in the name of God. The individualist solution to clinical coercion is the same: to protect the free practice of psychiatry but to abolish coercion in the name of mental health.
Simple? Of course. Why, then, are so few people interested in it? The answer to that question is not so simple. I shall point here only to one of the reasons for it.
When the United States went through its birth pangs, violence in the name of God was an accepted political and legal principle throughout Europe and indeed the whole world. What justified this practice? We know the answer only too well: an alliance between church and state that made the use of force in the service of God as legitimate as the use of force in the service of Caesar. The soldier protected the commonwealth from external enemies. The inquisitor protected it from internal enemies, especially heretics.
The problem of religious coercion, like the problem of psychiatric coercion, could be approached in two ways. One way would be to look to the state to protect the victims of clerical power. This would generate a rhetoric about the rights of heretics and demands for guaranteeing the heretic's right to proper (that is, orthodox) worship. The other approach would be to recognize that the source of clerical power lies in an alliance between church and state. This realization would generate (as it did in the United States) a rhetoric about the separation of church and state and demands for making worship the private affair of the worshipper.
We can easily see how the first course only aggravates the problem. By guaranteeing the absurdity of the heretic's right to embrace the true faith, it further authenticates the legitimacy of religious coercion. Similarly, coercion, being the result of an alliance between psychiatry and the state, can be ended only by a separation of psychiatry and the state. Any other course, particularly the state's "guaranteeing" the absurd right of mental patients to receive treatment can lead only to reauthenticating the legitimacy of psychiatric coercion. The history of mental health reform in the United States during the past 15 years illustrates and supports the validity of this interpretation.
Psychiatrists, however, contend that insane persons—out of touch with reality, misinterpreting therapy as torture—cannot competently consent to or reject psychiatric interventions. And many people, perhaps the majority of the population, believe that this is true. So some special legal mechanism is necessary for realistically implementing a separation of psychiatry and the state. Such a mechanism is prefigured in procedures that people in Western societies have developed for coping with other situations in which a moral agent's capacity to act competently is diminished or destroyed. There are two typical situations of this sort: death and incapacitating terminal illness. And there are two legal instruments that have been developed to cope with them: wills (last wills and testaments) and so-called living wills. I propose that we create a third type of will—the "psychiatric will."
SECURING THE RIGHT TO AN UNMOLESTED MIND
Many of us are eager to exercise our desires over the distribution of our property after we die. The purpose of the last will is to assure this by extending our control into a situation in which we cannot otherwise exercise any control at all.
While the use of last wills is an ancient practice, the use of living wills, in anticipation of a lingering, painful, and expensive terminal illness, is of more recent origin. Executed while the person is not disabled by illness, a living will directs those responsible for caring for its author to abstain under certain circumstances from administering to him or her life-sustaining measures. The legal philosophy underlying this practice is illustrated by the following opinion of a Kansas court: "Anglo-American law starts with the premise of thoroughgoing self-determination. It follows that each man is considered to be the master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery."
The psychiatric will I propose rests on the same principle and seeks to extend it to "mental treatment." It asserts, in effect, that competent American adults should have a recognized right to reject ahead of time involuntary psychiatric interventions that they may be deemed to require in the future when they are considered incompetent to make decisions concerning their own welfare. My model for the psychiatric will is the so-called living will and, more specifically, the rejection by Jehovah's Witnesses of blood transfusion as a medical treatment.
A frequently cited opinion concerning the constitutionality of allowing Jehovah's Witnesses to reject blood transfusion, even when the transfusion may be lifesaving, was formulated in 1964 by Chief Justice (then Circuit Judge) Warren Burger. In this opinion, Burger recalled Justice Brandeis's famous words about our "right to be let alone." "The makers of our Constitution," wrote Brandeis, "sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights, the right most valued by civilized man." To which Burger added these (for my present purposes, decisive) words: "Nothing in this utterance suggests that Justice Brandeis thought an individual possessed these rights only as to sensible beliefs, valid thoughts, reasonable emotions, or well-founded sensations. I suggest he intended to include a great many foolish, unreasonable, and even absurd ideas which do not conform, such as refusing medical treatment even at great risk."
As we have seen, then, where the person is conscious and rational, the courts have tended to accept the principle that a person has a right to refuse medical treatment even if the result is death. "Even in an emergency situation," an article in the Journal of Medical Ethics recently explained, "where death would ensue if treatment were not administered, the court upheld a patient's refusal of treatment."
Since involuntary psychiatric intervention is rarely lifesaving (and even if it were, that would not be enough under the foregoing ethical-legal principles to justify its forcible imposition on unwilling clients), the parens patriae rationale for psychiatric coercion is fatally undermined. The psychiatric will would implement the right to reject psychiatric treatment for people deemed to be fully competent and rational at the time they made their decision. On what constitutional, moral, or political grounds could Americans be denied this right?
ESTABLISHING THE FORM OF THE PSYCHIATRIC WILL
Many people (and virtually all psychiatrists and other mental health experts) fear the danger of a "nervous breakdown" or "psychotic illness." These people believe that mental illness exists, that it is like any other illness, that it is amenable to modern psychiatric treatment, and that the effectiveness and legitimacy of such treatment do not depend on the patient's consent to it. Accordingly, such people seek protection from "life-threatening" mental illness and support the use of involuntary psychiatric interventions.
On the other hand, there are other people (including a few psychiatrists and other mental health experts) who fear the danger of compulsory psychiatry or involuntary "therapy." Some of these people also believe that mental illness does not exist and that psychiatric coercion is torture rather than treatment. Accordingly, these people seek protection from the powers of psychiatry and advocate the abolition of involuntary psychiatric interventions.
Let us now apply the principles underlying the last testament and the living will to the psychiatric contingency some people might want to anticipate and control, such as "sudden madness" or "acute psychosis." Since involuntary psychiatric confinement is a tradition-honored custom in modern societies, these people are wise to anticipate the possibility of their own sudden madness managed by others by means of commitment and coerced treatment. To forestall that happening, we need a mechanism permitting anyone who has reached the age of maturity to execute a "psychiatric will" prohibiting his confinement in a mental hospital or his involuntary treatment for mental illness. Those failing to execute such a document before an actual encounter with coercive psychiatry would, of course, have the opportunity to do so as soon as they "recovered" from their first episode of "mental illness" or otherwise regained their competence.
Since commitment entails the loss of liberty, the foregoing mechanism for its protection is relatively weak. It requires the affirmative assertion of a desire to do without involuntary psychiatric care, and in the absence of such a declaration, the person would remain a potentially defenseless victim of psychiatric coercion. So even though this kind of psychiatric will would be a great improvement over the present situation, a more powerful document could be fashioned by shifting the presumptive rights. In this stronger version, a person would be free from psychiatric coercion unless he executed a psychiatric will in advance that asserted his right to such coercion should the "need" for it arise. This arrangement would leave most of us free from psychiatric coercion, much as we are free, without having to go to such troubles, from religious coercion.
The second version of the psychiatric will is stronger and theoretically more attractive than the first. But because the paternalistic perspective on involuntary psychiatric interventions is now so prevalent, the weaker version may be more acceptable to most people and to their elected representatives. Of course, the rejection of psychiatric interventions need not be total in either version of such a will. For example, some persons might wish to authorize coerced hospitalization and to forbid treatment by drugs or electroshock, while others might wish to authorize coerced drug therapy and to forbid confinement. Only through a mechanism such as this could the responsibilities as well as the rights of the "severely mentally ill" be expanded.
The use of psychiatric wills might put an end to the dispute about involuntary psychiatric interventions. Earnestly applied, such a policy should satisfy the demands of involuntary psychiatry's proponents (the psychiatric protectionists) and its opponents (the psychiatric voluntarists). Surely, the psychiatric protectionists could not in good faith object when people who were competent to make binding decisions about their own future chose to prohibit personally unauthorized psychiatric assistance. Nor could the psychiatric abolitionists really complain when other people who were competent to make binding decisions about their future chose to permit their own temporary (or not-so-temporary) psychiatric "enslavement."
Finally, it should be noted that although the main purpose of the psychiatric will would be to protect potential patients from unwanted psychiatric interventions, such a document would also protect would-be therapists from the risks they now face in their relations with involuntary mental patients. This dual function of the psychiatric will is inherent in its being an instrument for transforming a status relationship into a contractual relationship.
As matters now stand, psychiatrists faced with the task of having to care for "seriously ill mental patients" often find themselves in a Catch-22 situation. They are in danger of being sued both for confining and for failing to confine the "patient," for using coercive treatment as well as for failing to use it. The psychiatric will, prospectively requesting or refusing involuntary psychiatric interventions, would constitute a contract between potential future psychiatric patients and their potential future psychiatrists. Hence, while it would protect the former from psychiatric coercion or psychiatric neglect (as the case may be), it would protect the latter from charges of unauthorized treatment or unprofessional neglect.
Contributing Editor Thomas Szasz is a professor of psychiatry at the State University of New York College of Medicine. He is the author of many books, including Psychiatric Justice and The Myth of Mental Illness.