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Law, Liberty, and Psychiatry (1963)

In Law, Liberty, and Psychiatry Szasz examines the function of psychiatry as a social institution, particularly in connection with law and justice. A pivotal theme is the role of the concepts mental illness and mental health in denying certain rights and freedoms to citizens who did or did not violate the law. Szasz considers involuntary commitment the epitome of coercions and deprivations of liberty in psychiatry as a social institution. Involuntary commitment is perhaps the subject most frequently examined by Szasz, precisely because it so spectacularly exemplifies depriving of liberty a person who has not violated any law. The same principle applies when retroactively judging whether a person was “of sound mind” when writing a will or committing a criminal act. Not only is mental illness a myth, but the concept is too vague to be a useful instrument in court procedures, and to form the basis of rulings that profoundly affect human lives. There is way too much room for error and arbitrariness. Psychiatrists are influenced by different parties each of which has a certain interest in the results of their examination. Quite often psychiatrists testifying on behalf of the state or public prosecutor reach different conclusions than psychiatrists testifying on behalf of the defense. The famous, or rather infamous, trial of Hinckley in 1982 is a spectacular example of this. (See also Chapter II, 3.3.)

In the United States legal precedence strongly determines views on criminal responsibility. The oldest of these rulings, the McNaghten Rule of 1843, essentially stipulates: madness can only be a valid defense when it is proven that the defendant, while committing the crime, suffered from a defect of reason caused by mental illness, that caused him to either not know what he was doing, or if he did, to not know that it was wrong. (p. 128) The Durham Rule was formulated in 1954. (p. 132) Its most important stipulation is “that a defendant is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” Although Szasz seems to accept the McNaghten Rule, he vehemently opposes the Durham rule. Firstly, the Durham rule reifies the concept of mental illness, although in reality it is no more than a theory that can be useful in explaining something that has happened. Secondly, it views an action as an incident that can be explained by previous incidents. This would imply that man is considered similar to a machine that functions according to natural laws of cause and effect, whereas humans actually have a certain freedom to choose their actions. Thirdly, genuine, scientific, causative theories – Szasz is referring here to theories borrowed from physics – can consider an object no other way than predetermined. Therefore such a consideration would always lead to exculpation, not because it is justified, but because this is how the theory is constructed. Fourthly, instead of people being held responsible for their actions as competent adults, their status is converted to that of incompetent psychiatric patients. “Accordingly, I submit that, except in cases of gross disability, adults should always be treated as if they were capable of fulfilling the contractual obligations they have assumed. If people are to remain responsible, contracting individuals, it is important to respond to their failure to fulfill obligations by punishing them, not by redefining them as inferior beings, unfit to enter into contracts.” (p. 151)

In theory, according to the Durham Rule, when defendants are found not guilty on grounds of mental illness, they should be acquitted. Thus those people should go free and unpunished. Nothing could be less true. Suspects who are turned into psychiatric patients are worse off than those who are convicted of their crimes. They are incarcerated by court order without due trial, to be treated, implying that their detention in an institution is of indefinite duration rather than relative to the crime. Furthermore, the opportunities to appeal and reclaim one’s honor are minimal compared to those of the convict.

Involuntary commitment for the purpose of treatment to Szasz is “disguised punishment,” not only because such incarcerations replace detention in a penal institution, but also because of the inhumane aspects: mental hospitals are overcrowded; there is a tremendous shortage of professionals; in reality there is seldom if ever any treatment, even when such might be possible. This last argument is of a different order than the first two. It is not a matter of principle or theory, but one of practicality. Nonetheless it is quite important, because legally involuntary commitment and treatment are linked. This link constitutes fraud when there is no treatment.

Szasz notes that the problem of involuntary commitment is extremely important in the United States. He states that 90% of the people in State Mental Hospitals are there involuntarily, that 150,000 people are so committed every year, and that the total amount of people involuntarily hospitalized in the United States exceeds one million.

In a letter to the editor in 1967, Szasz criticizes a remark in The Economist claiming that in England and Wales 94% of the patients in psychiatric institutions are there voluntarily, and free to leave whenever they wish. Szasz points out that their stay is “voluntary” because they know that if they resist, they will be committed involuntarily. As long as there is a legal possibility of involuntary commitment, statistics about voluntary admittances are meaningless as well as misleading.

Although there is no way of proving this speculation, or determining in which percentage of cases it applies, in my opinion it also renders the statistics regarding involuntary commitment meaningless and misleading. They in no way reflect the patients’ actual situation.

Although Szasz is an indefatigable advocate for abolition of laws making involuntary commitment to psychiatric institutions possible, he does list a few exceptions in Law, Liberty, and Psychiatry. He names two types of people for whom a legal accommodation is necessary. The first is the “passive, stuporous, uncommunicative patient.” Szasz opines that this person should be treated the same as the person in a coma. To me this category appears to cover those people who do not understand what is going on (such as in advanced stages of Alzheimer’s disease and oligophrenia), or who do not protest (such as in depression with serious inhibition, catatonic states, and the like), or whose answers are so confused, complicated, or paradoxical that it is impossible to determine whether they wish to be hospitalized (such as with incoherent psychotics, confused states, and manias). My intention here is to demonstrate that this category of patients might be much larger that Szasz suggests, depending on who is judging them. It can be expanded endlessly depending on how high the criterion for clarity in expressing protest is set.

The second type is the aggressive, paranoid person, who is threatening violence. This type, however, should be treated as a criminal, preferably being incarcerated not in prison itself but in a prison hospital, where he can receive medical and psychiatric assistance.

Szasz points out that such emergencies are rare and should remain exceptions. In any case they constitute only a small portion of the current involuntarily committed population. In addition, as such people usually (turn out to) “have” something physical, they should be hospitalized in general hospitals. Involuntary commitments should be revoked the moment that patients regain their ability to communicate their wishes.
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