Epic Fail: The Legislation of Involuntary Mental Health Treatment

By Faith Rhyne

Last week, Rep. Tim Murphy (PA) introduced the Helping Families in Mental Health Crisis Act of 2013 to Congress and almost simultaneously mental health and disability rights advocates voiced their opposition to the proposed legislation with a statement from the Bazelon Center for Mental Health Law.

The bill, as many people who follow what’s happening in mental health law know, calls for the enactment of assisted (involuntary) outpatient commitment laws at the Federal level and is purportedly crafted to ensure the safety of those deemed “severely mentally ill” by giving families, courts and mental health providers increased authority to commit individuals to outpatient treatment. This may involve supervisory case management and compulsory treatment with whatever psychiatric drugs may be prescribed, while also granting family members or guardians the legal right to access an individual’s medical records.

This legislation, were it to pass, would divert funds from recovery-oriented community mental health programs and would expand funding for psychiatric drug treatment, while also undermining existing legislation relating to patients’ rights.

The Families in Mental Health Crisis bill presents itself as being written with worst case scenarios in mind — such as individuals being unable to care for themselves and prone to actions that may lead them to incarceration. In many ways the legislation carries the theme and intent of E. Fuller Torrey’s Treatment Advocacy Center, which is noted on Representative Murphy’s website as being a leading supporter of the bill. “Treatment advocates” communicate that those with “severe mental illness” have needs that can only be met through medical treatments, and that the need for long-term treatment is non-negotiable to the extent that force will be used to deliver treatment as deemed necessary.

It is true that there are some people who do have extreme difficulties in their experiences, and who may be more likely to struggle persistently for a number of reasons — ranging from compound trauma, substance use, abusive psychosocial realities, poverty and other societal oppressions, to all manner of other individual and external factors that impact one’s capacity to be well in ways that are acceptably functional and in alignment with the norms of safety in this culture.

However, people who carry the diagnoses of bipolar disorder, depression, and schizophrenia (all diagnoses which include specifications for a propensity toward states that are clinically identified as psychosis) are not universally likely to be severely and persistently prone to extreme and unpredictable states that impair their ability to reasonably take care themselves. This fact is evidenced by the multitudes of people with these diagnoses who do fine and well within their lives, as well asrespected research indicating that people can and do recover – to some degree or another – if given the opportunity to do so.

There are complexities within all of this, such as; what defines “functional,” and who defines “fine and well,” not to mention the quagmire of complex politics that surround the word “recover.”

Nonetheless, while this legislation presents itself as being “not about most people” with psychiatric diagnoses, it actually does concern the vast majority, as the criteria for patients who would be eligible for mandatory outpatient commitment are not limited to individuals with a history of violence and incarceration; it includes those with a record of non-medical hospitalizations, and those who are unable to take care of their basic needs.

Here are the criteria for “eligible patients,” as stated in the proposed legislation:

ELIGIBLE PATIENT

The term ‘‘eligible patient’’ means an adult, mentally ill person who, as determined by the court —

(A) has a history of violence, incarceration, or medically unnecessary hospitalizations;

(B) without supervision and treatment, may be a danger to self or others in the community;

(C) is substantially unlikely to voluntarily participate in treatment;

(D) may be unable, for reasons other than indigence, to provide for any of his or her basic needs, such as food, clothing, shelter, health, or safety;

(E) has a history of mental illness or condition that is likely to substantially deteriorate if the patient is not provided with timely treatment; or

(F) due to mental illness, lacks capacity to fully understand or lacks judgment to make informed decisions regarding his or her need for treatment, care, or supervision.

It seems to me that a fair amount of this may be subjective and cautionary. Who is to say that the state that one appears to be in is the state they are in or that the states that people may inhabit for some span of their lives – sometimes only fleetingly – are the states they are doomed to exist within indefinitely or that past behavior predicts future behavior?

It’s all very problematic.

While most people do not have histories of incarceration, many people have histories of “violence” (depending on how it is defined and reported), and many people with psychiatric labels have experienced medically unnecessary hospitalizations* at times when they were not able to care for or had any interest in caring for their basic needs.

A lot of people have thrown objects or said terrible things in states of panic and anger. Some people have had periods of time during which they were so immersed in an isolated and difficult state that they ceased to uphold the functions of daily living.

Experiences such as this lead many people to receive the diagnoses they carry – the labels that determine them to be “severely mentally ill.” However, many people do not persist in these states so severely and unavoidably as the cautionary voices of the treatment advocacy movement would have one to believe.

People can and do recover. Whether this means not experiencing struggle to the extent that one once experienced, or learning ways to live with struggle differently, or to give challenging experiences new meaning and to find new ways of responding to difficult thoughts, feelings, and circumstances –people do recover.

Yes, it is important to find ways to meet the needs of those whose struggles are most profound and, absolutely, families and caregivers must be supported in their efforts to support people who are in crisis. Yes, it is crucial that we as a society understand and seek to prevent acts of violence – including abuse within families, bullying in schools, rape, police brutality, hate crimes, war games and all the other myriad other harms that shape American culture.

Is legislation that mandates outpatient treatment for those identified as having a “severe mental illness” going to meet those needs?

I’d say no.

In fact, I’d predict an epic fail, an utter disaster that may lead to innumerous losses of life and a potential for unspeakably tragic consequences.

The criticisms of the therapeutic efficacy of force and coercion in mental health treatment are significant. While some people identify forced treatment as being helpful to them during times of crisis, many feel that their experiences of forced treatment have been dehumanizing, deeply traumatic, and ultimately harmful, leading to further difficulties and significantly impairing wellness. The mechanics of force are inherently violent, so much so that the UN Special Rapporteur on Torture has identified common practices in forced treatment – such as restraints – to be torture.

Most people understand the simple maxim that violence leads to violence, that harm leads to harm. How is it then that one would expect to reduce the risk of violence by exerting violence?

While treatment advocates perpetuate the belief that mental health stigma discourages people from seeking support when they are struggling, it is plausible to surmise that many people may opt to avoid seeking mental health treatment because they find the expected treatment to be unappealing and, perhaps, because they fear that they will “get locked up.”

When a system of care uses force, it ceases to be a system of care and becomes a system of authority . . . and most people generally make an effort to avoid getting involved with such systems.

Further, the lasting images of the effects of long-term forced treatment in institutionalized settings and with neuroleptic drugs paint a rather grim picture of what a life as an involuntary mental patient might involve — a lack of choice, a loss of rights and a life sentence of “coping with” and “living with” an endless string of days that exist in the limited haze of erased futures.

The promotion of associations of violence with diagnoses of mental illness in media and rhetoric further contributes to a culture where it would not make much sense to pursue involvement in the mental health system, if such involvement meant that your name may end up in a database and that your every word, movement, and expression might be seen as potential symptoms.

The knowledge that the treatment one may receive has the capacity to make one impotent, diabetic, perpetually sedated and with muscles that twitch and seize, is not a particularly strong incentive to seek the sort of treatment that this legislation would prescribe.

While this legislation seeks to establish the authority of the courts and of families in securing the treatment of those who are not “compliant” – the effect that this may have is that individuals who are struggling may increasingly avoid being identified as having a “mental illness,” which means that they may not reach out for support when they begin to struggle and that they will not talk with anyone. Ultimately, this may increase the risk of crisis in that these dynamics of fear may themselves feed crisis states by isolating the individual, damaging relationships, and leaving one to try to cope on their own, which sometimes works out but sometimes leads to disastrous circumstances.

While families may be supported in having expanded authority over their loved one’s treatment, it is not clear as to whether or not this is actually supportive of families. How much heartbreak has been created in scenarios in which families are led to believe that there is no hope for their loved one, that the person they care for is an imminent danger, that there is no hope?

When family members become involved in forced and coercive treatment, important life relationships are wounded. The effects of being “the sick one” within a family system can be devastating to one’s self-esteem and identity. These phenomena may contribute to one’s experience of struggle, as – to be frank – it can be incredibly damaging to our most basic sense of humanity to live in such scenarios between self and other.

So, what is to be done?

There are a number of practices and modalities that have been shown to support individuals with severe difficulties in recovering to the extent that they are able to establish a self-reported quality of life and happiness and to contribute meaningfully to their communities in some way or another. These practices – such as Open Dialogue, peer support, and the creation of opportunities for individuals to engage in reflective self-determination in understanding one’s own difficulties and learning how to respond to those difficulties in ways that support the life goals one has set – all rely upon the ethos of compassion, acceptance, individual agency, and hope.

While legislation that mandates outpatient treatment for those who struggle most significantly claims to be compassionate – as it purports to seek to secure care for “those who most need it” – the degree to which forced treatment can truly be compassionate is questionable, and involuntary treatment is inherently unaccepting and violates the right to individual agency while clearly flying in the face of hope in its certainty that the only option for some people is indefinite supervised treatment.

As a person who would – unfortunately – meet some of the criteria for “eligible patient” under this legislation, as well as a person who works to support those with complex and persistent struggles, I have to say that the proposal put forth by Representative Murphy and encouraged by treatment advocates is an absolute affront to human rights, human potential, and the dignity of people who struggle within their human experience.

* * * * *

*I find it interesting that the term “medically unnecessary hospitalizations” is being used in this legislation to, presumably, refer to psychiatric hospitalizations.

Are they finally admitting that psychiatry is not “medical”?

I certainly agree, but do find it curious that they would use such wording, particularly when making such an effort to promote the idea that struggles which can be characterized as “mental illnesses” are “medical” conditions.

It seems to me like a bit of a conflict in messaging, though such things are to be expected when one is not entirely sure about what it is they are saying and whether or not it is real.

In speaking about “mental health,” that’s a fairly common phenomenon . . . because we do not, after the billions in research and innumerable social and medical experiments that have been conducted, really have any idea what we are talking about when we talk about mental health.

It’s called a breakdown of shared meaning . . . and it is core to the reasons that people struggle.