Justification of Involuntary Psychiatric Commitment
Traditionally, involuntary commitment is a type of social intervention involving both psychiatrists and judges. The combination of these two areas of expertise has been rather variable. At one extreme was a fairly exclusive involvement of psychiatrists, perhaps combined with judicial rulings that routinely underwrote psychiatric opinion and empowered psychiatrists to act accordingly. At the other extreme were fairly exclusive legal procedures to which psychiatrists contributed only elements on which to base rulings.
Jones compared psychiatric and judicial attitudes. Generally speaking she found several typical differences. Judges want concrete and clear answers to questions as: Does the person have a psychiatric disorder? Is the person competent? Is he dangerous? If so what is that danger and how large is the risk? Psychiatrists can answer only vaguely and with restrictions. “Almost anybody is capable of almost anything.” Law is normative, setting rules as clearly as possible. Mental health more closely resembles an undefinable ideal than a norm. Judges’ thinking is routine, psychiatrists’ individualistic. Judges aim to pronounce a judgment, psychiatrists to comprehend. The legal model is optimistic in the sense that it presupposes that everybody can, with a little luck, comply with the law. The psychiatric model is pessimistic because mental health is an ideal that is difficult to realize. It seems to me that one of the prime differences is that psychiatric theory was not designed to judge competency or responsibility but to form a basis for decisions on treatment. “Treatment” in psychiatry is totally different from “treatment” in law.
Jones further notes that judges and psychiatrists share a high regard for human liberty and dignity. However these are “ideals which the legal system and the mental health system do not greatly support in our prisons and mental hospitals.”
Finally, Jones posits that psychiatrists and judges are inclined to stereotype and denounce each other’s professions, which was amply proven by the tumultuous discussion that followed her speech in Oxford, from which above I have taken some excerpts.
How is involuntary commitment justified from psychiatric and legal perspectives?
From a psychiatric perspective, involuntary commitment is usually justified because it is considered to be in patients’ interest. The idea is that precisely due to patients’ disorders they cannot effectively evaluate their own situations nor view their own realities. An example is the man with the delusion of sin who refuses hospitalization because he considers himself too evil to be worth anyone going to any trouble for him. Another argument is that certain patients are socially destroying themselves and in no-time are estranging themselves from all of their acquaintances. This may occur expecially among manic patients. Sometimes patients’ inability to care for themselves is emphasized or their inability to defend their own interests. Psychotics are not infrequently presumed incapable of asking for help although they presumably could if they wanted to. Threatening suicide or violence against others is also sometimes considered a valid reason. Generally: there is disease. Due to this disease either the ability to see reality as it is, the ability to correctly evaluate one’s own situation, or the ability to choose is afflicted. The degree of affliction is so grave as to oblige others to assume responsibility in order to protect the ill person against himself. So involuntary commitment becomes a measure for protecting patients meant to ease their suffering and protect them against themselves. A further goal is to enlarge their ability to evaluate their own situation and restore their ability to make free choices. On the side, note the paradox. People must be detained, thus lose their liberty, because they have already lost their liberty according to those who detain them. To regain their liberty they must be subjected to involuntary treatment, thus unfreedom. This paradox is in principle not insoluble because the liberty granted or denied patients by others is always a different type of liberty than their own existential freedom. The latter can be granted to them by no one. Only patients themselves can master such freedom, often with difficulty, when others do not hinder them. Not only is the goal of involuntary commitment to provide treatment, involuntarily if necessary, but that is its moral obligation. There are of course all kinds of nuances in this point of view which Van de Klippe calls “the best interests viewpoint.” The basic idea is that people risk serious harm because that part of them which could protect them from that harm is damaged. Also extremely significant is the idea that treatment can prevent a great deal of suffering.
In contrast, from a legal perspective the emphasis for justification is on the danger posed by said people. This can be a danger posed to the public order or safety or to the life of the person himself or others. Society rather than the individual is the main focus of concern. Involuntary commitment can be considered a certain kind of preventive detention. The environment must be protected from these dangerous people and perhaps they must be protected from themselves. This “danger” criterion evokes the need to detain such people and prevent them from remaining dangerous. But they should be deprived of liberty only the necessary minimum. So they should be able to decide themselves whether or not they wish to be treated. In practice, in the Netherlands, a line is drawn here. The Dutch supreme court ruled that physical measures, including coerced medication, to involuntarily committed patients are admissible only when there is no other possibility to stem serious dangers, in particular towards other patients, arising from a disorder of the mental faculties. In reality in such cases there is (medical) influencing of danger rather than medical treatment. A commission on psychiatric patients’ rights recommended permitting involuntary treatment only in patients who due to their psychological situation pose an immediate danger for their own lives or those of others, or of disabling themselves or others, or to prevent their regression when they have a serious psychiatric disorder that could cause severe disability or death. What should happen to people who are involuntarily committed, refuse treatment, and therefore do not belong in a psychiatric hospital, which is a treatment center? As far as I know this question has never been answered. Schultz described how the right to refuse medication led to patients’ clinical regression, increased aggressiveness, increased need to isolate those patients, and the quitting of staff who could not bear to see the regression of untreated patients. The dilemma of the right to treatment and the right to refuse treatment reflects the respective psychiatric and legal perspectives.
The danger criterion is in itself not enough. The danger must be related to the existence of a psychiatric disorder. After all, considering someone dangerous when he has not (yet) committed a crime is in general insufficient reason for preventive detention. Also here it is essential that both a psychiatric disorder be present and the likelihood that that psychiatric disorder and the dangerousness are linked.
There is an obvious incongruity between these two perspectives. The best-interests viewpoint focuses on patients’ interests as defined by psychiatrists. The dangerousness viewpoint focuses on the rights of individuals and the community and the interests of society. Although the polarity of both types of interests as Szasz maintains seems to me to inadequately accommodate the area where the interests of individuals and society parallel each other, equating them insufficiently accommodates the area where they conflict each other. Furthermore, the best-interests viewpoint aims to prevent human misery, which means that in particular those people who have something that “overwhelms” them and that jeopardizes their relationships, their social position, and their future prospects, must be guarded against themselves. I would like to mention the manic syndrome as archetypal of such a hazard. The dangerousness viewpoint aims to reduce harm to others. This means that those people for whom the best-interests viewpoint dictates swift intervention such intervention can take place only at a very late stage, when the harm to them is already far advanced. The justification for speedy intervention increases as treatment methods improve. An example is manic syndrome which can be influenced with medication. The improvement of treatment methods is much less relevant to the dangerousness viewpoint. If something should be “treated” that something is the dangerousness, not the disorder, as such people should be released as soon as the dangerousness has passed.
The dangerousness viewpoint is ambiguous. If potentially dangerous people are divided into two groups, those who are psychiatrically disordered and those who are normal, then according to the dangerousness viewpoint involuntary commitment is admissible only for the group that is psychiatrically disordered. The premise is that psychiatric disorders can turn people into beings who cannot be held responsible for their behavior because the ability to evaluate their own situation and make choices among alternatives is disordered. But if that is so it is not rational to respect such people’s “free will” as to whether or not treatment is administered for that disorder. Furthermore, if indeed that is the meaning of psychiatric disorder why wait for dangerousness? Is it not an ethical and moral obligation to help these people as one would reach out to a drowning person who cannot swim? If the premises regarding psychiatric disorders and non-responsibility are correct what is the justification for not intervening as soon as a person with such a psychiatric disorder is encountered? It seems to me that this ambiguity again illustrates the dilemma that the concept of psychiatric disorders does not include a pronouncement about (non-)responsibility. (See 2.1.) The dangerousness viewpoint is inconsistent in that it holds people not responsible when dictating repressive consequences but responsible regarding therapeutic consequences. Or vice versa: if the concept of psychiatric disorder is too limited to be a basis for deciding that someone cannot be held responsible as a social reality then the group of dangerous people with psychiatric disorders should be treated the same as the group of people without psychiatric disorders.
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