Saturday, March 10, 2018


     It’s not that long ago that the several states operated insane asylums to which one could be committed – involuntarily confined for an indefinite period – through a fairly casual procedure. Actually, such facilities still exist, though they’re fewer. So do the commitment procedures, but the psychiatrists have grown considerably more reluctant to use them.

     Correlate the rate of commitments with the population trend among the “homeless.” Draw your own conclusions. The causal forces might not be determinative. But don’t imagine that there’s no relation between them.

     The misuses and abuses of involuntary commitment are well documented. Here’s one from 2011:

     My friend had been communicating with a mental health professional. He mentioned suicide, but had never harmed himself, made no mention of a plan, and closed the message with: "But I have to go to work. I'll call you later." Hardly seems like an emergency to me though of course I'm no expert.

     Pursuant to NY Mental Hygiene Law § 9.27, an ambulance appeared at his home and took him to an emergency room. His room was strikingly uncomfortable due to the removal of any object he might use to kill himself. While there he was lied to repeatedly by the staff. They lied to me too. They threatened him, and me. They intimidated him and discouraged him from exercising his right to a hearing. They disregarded the laws requiring them to give him proper notice of his rights....

     If you are committed against your will, you do not get read a Miranda warning and you do not have the same right to remain silent. The hospital is required to provide you with written notice of your rights and to post them conspicuously. In practice if they do so the notice is buried among other papers and there is no requirement that they make sure you understand your rights. If you choose to remain silent, your silence will be deemed a lack of cooperation with their evaluation and treatment, and will be used against you in any hearing. My friend did not receive any written notice. When I visited the rights were not posted anywhere I'd call conspicuous - I couldn't find them and I looked for them. There were places where things were posted conspicuously and the relevant rights were not there.

     If you are arrested you have the right to an attorney. If you can't afford an attorney, one will be provided for you. You are notified of this as part of the Miranda warning. Once you request an attorney, they can't question you without your attorney present.

     In involuntary commitment, there is no clear right to an attorney. There are some requirements that the Mental Hygiene Legal Service be notified and they will serve, in a sense, as your public defender. In practice you don't get to see them for a while.

     I tried to assist my friend. Hospital staff limited my access to him. They refused to allow me to be present while he was questioned.

     When my friend submitted his written request for a hearing, one of the hospital psychiatrists got right in his face and yelled at him. This treatment was not therapeutic.

     The above comes from an Albany defense lawyer. Clearly, he saw a great gulf between the rights and procedures afforded to one accused of a crime and those afforded to one deemed “a danger to himself or others.” As it happens, New York law on the subject makes plain that this is supposed to be the case:

     Section 9.27(b) describes 11 categories of persons who may request or submit an application for involuntary commitment of an individual. The list includes any person that lives with the allegedly mentally ill person, close family members, the court, the supervisor of a correctional facility, a treating psychiatrist and other professionals familiar with the individual’s lifestyle and behavior patterns. In order to be considered, the request must include written statements regarding the facts surrounding reasons for the request.

     After the request is submitted, a person may be involuntarily committed if:

  • Two physicians agree and present documentation that the person has a mental illness necessitating inpatient care and treatment;
  • The individual’s judgment is so impaired that he cannot understand the need for care and treatment;
  • He poses a substantial threat of harm to himself or others due to his mental illness, which may include the inability to meet his needs for food, shelter, clothing, and health care or dangerous conduct and noncompliance with mental health treatment programs.

     The laws of the other forty-nine states are similar. If this isn’t a situation ready-made for massive abuses, I can’t imagine how to design one. And revelations of abuses of these systems have sufficiently embarrassed America’s “mental health professionals” to make them far more reluctant to engage in involuntary commitments than they were previously.

     But note the last condition listed immediately above: “[if] He poses a substantial threat of harm to himself or others due to his mental illness, which may include the inability to meet his needs for food, shelter, clothing, and health care or dangerous conduct and noncompliance with mental health treatment programs.” That encloses the “homeless” like a tent – something few of them possess.

     Once again: Draw your own conclusions.

     Abuses of the commitment laws were made public in the Seventies to great public indignation. The notion that “a close family member” could say something to “a mental health professional” that might result in one’s involuntary and indefinite confinement appalled huge numbers of Americans (which might say as much about the state of our family relations as anything else). Though changes in the commitment laws and the procedures they specify were generally few and modest, psychiatrists became steadily more reluctant to initiate the process. Insane asylums (by whatever euphemism they were named) closed down in droves.

     One consequence was a tide of releases of the confined back onto the streets. Some of those persons had nowhere else to go.

     Have a few thoughts from CBD at Ace of Spades HQ, about the recent death of a homeless woman:

     What is ironic is that the majority (probably all) of the people involved and interviewed probably support the deinstitutionalization craze that has gripped America since the 1970s. I wonder whether a firm public policy of forced commitment would have helped this woman. My suspicion is that it would have. That is not to say that our institutions were wonderful, but an all-or-nothing approach makes no sense. We have moved the mentally ill out of sometimes awful psychiatric facilities into the revolving door of the street, prison and an early death.

     Collectivization of the inmates of those institutions as “mentally ill” strikes me as unwise. Some of them were surely insane (“a danger to himself or others”) and thus benefited from being confined for their own safety and well-being. But it’s likely, given the weakness of the legal protections of one compelled to undergo psychiatric examination, that some were not – that they were victims of others the law allowed to railroad them into confinement.

     Still, CBD has a point: Surely some of the “homeless” occupy our heating grates because of deinstitutionalization. This is not a matter in which the arrow of justice points unambiguously and inarguably in one and only one direction. How, then, can we distinguish those who would genuinely benefit from confinement from those who are victims of procedural abuse?

     Some final thoughts from Warren Redlich, “Albany lawyer:”

     It is idiotic that those suspected of being a danger to themselves have less rights than those suspected of actually harming others. Yes it is important to make an effort to protect people with dangerous mental health problems. But it is more important that we ensure this is not abused. Anyone subject to involuntary commitment should have at least the same rights as an arrestee.

     And thanks to Winston's comment on facebook, there's another point. When the mental health professional pulls the involuntary commitment trigger, it inherently damages the relationship. That may be necessary at times. But if the process thereafter is unfair, it further damages the relationship between the patient and the entire mental health profession. Future care for this person will be far more difficult.

     Food for thought.


Linda Fox said...

This is a tough call. I do think, when someone has been arrested repeatedly, or is unwilling or unable to manage their personal care at least minimally (living in feces, vermin surrounding them, physical health deteriorating), they should be sent for at least a short stay in a facility.

Any prison/jail inmate with mental problems not controlled with meds needs to be bumped to the head of the list - they are often victims of other prisoners if left there.

I'm biased. My late brother's problems were a direct factor in his early death, and a lot of suffering before that time. I do realize that many troubled people will not improve with confinement. Again, my brother was the poster boy for this - he only participated in the alcohol treatment activities long enough to heal, rest, then - once released - turn right around and do it again. And again. And again.

Keep in mind, men are the ones that could most benefit from this - more of them actually succeed at committing suicide (women SAY they want to kill themselves, but actually follow through much less often).

BB-Idaho said...

I'm so old that I remember no mass shootings, no school massacres and no crazies roaming free. A grade school friend grew up with his
father in an 'insane asylum', having locked his wife and kids in the house and set fire to it. The father never got out, but was shifted
from one institution (there were many) to another. Of course there was little in the line of drugs (lithium, valium, antipsychotics) and
the institutions were heartless (lobotomies and shock treatment). In a way, society was uptight back in the 40s and 59s: guns were very rare and kept locked away until hunting season..any one who thought they had to 'carry' was considered paranoid and closely watched. But
those were safe times. Rightly or wrongly, we are creatures of our
place in time, comfortable with conditions of our youth and growth.
(Probably why I still have only a landline and have no need for facebook!) One of the few benefits of old age is complaining...