Human Rights of Mentally Ill

The evidence adduced in the past for the proposition that civil commitment hearings are deleterious to mental patients was largely theoretical, occasionally supported by anecdotes. The criticism seems to have reflected the general antipathy of doctors for everything legal. In fact, the relationship of the involuntarily committed patient to his attorney and numerous aspects of the commitment process contain considerable potential for therapeutic effects. Properly used, the process should be adjunctive to the hospital's function rather than an impediment to it.

At the beginning it seems appropriate to articulate certain perspectives and premises. First, abuses have occurred and sometimes continue. By abuses, I refer to the fact that some patients have been badly and even capriciously treated by mental health professionals; and that some patients have had their illnesses exacerbated by zealous advocacy which elevated patients' rights over their welfare. In short, patients have been and can be dehumanized both by inappropriate treatment and inappropriate lack of treatment. Neither the psychiatric nor the legal profession should be solely blamed for these excesses. Second, competent persons should have an unambiguous(4) right to determine their own treatment, and this right should be vigorously protected. Third, the presence of mental illness should not be confused with the incapacity to make informed-consent treatment decisions. Fourth, ongoing legal remedies exist to protect individuals from careless practitioners. Typically, the legal mechanism for doing this has been via the doctrine of informed consent. Like many abstract doctrines, this one tends to break down in extreme cases; hence the legal aphorism: hard cases make bad law. Traditionally, incompetence and involuntary status have posed vexing challenges to this doctrine. Thus, while civil law remedies, suits in tort, exist to protect all patients, both the courts and the le.$islatures have specifically banned certain treatments (e.g., psychosurkery or behavior modification with succinyl choline) for certain classes of patients (e.g., prisoners, or involuntarily-detained psychiatric patients, or retarded children).38 Fifth, treatment emergencies do exist (e.g., homicidal outbursts, suicidal or self-mutilatory rages, extreme agitations to the point of an irreversible inanition or electrolyte imbalance, or refusal to take even minimal nourishment) which require rapid therapeutic intervention if the patient is to be prevented from harming others or self.4o,41 In some cases, seclusion and! or restraint will not suffice to abate the emergency unless used for unconscionably long periods. Sixth, the ultimate aim of rethinking the right-of-involuntarypatient-to-refuse-treatment issue is to reduce and ideally eliminate abuses; that is, to enhance patient welfare. In general, increasing patient access both to treatment and to legal counsel should further this aim. Seventh and last, it is important to remind oneself that much of what is wrong with mental health care has little to do with the right to refuse treatment. Inequities in funding, inadequacies in training, misallocation of resources, and deficiencies in knowledge (about mental illness) all make present treatment less than ideal. Next, it is important to note the legal underpinnings of the right-torefuse-treatment doctrine. As many commentators have noted, that (4) It would be tempting to write about an "absolute right" in this regard but the courts have determined that certain treatment decisions, typically those which potentiallv affect others such as vaccination against contagious diseases, cannot be made absolutely.40

The current debate over the "police powers" versus parens patniae rationales for involuntary hospitalization of the mentally ill underscores the need for empirical study of the process of judicial decision making in civil commitment and determinations of competence. The authors report the ratings on 26 descriptive variables made by five Massachusetts district court judges for 35 patients in civil commitment hearings. Nearly all of the hearings resulted in commitments. These findings suggest that psychiatrists may be setting too high a threshold for petitioning for commitment. Experienced judges

I. INTRODUCTION 1190 North Dakotans were confined against their wishes in the State Hospital at Jamestown, North Dakota in 1974.' They had committed no crime, yet their confinement deprived them of their liberty just as substantially as if they had been confined with the 157 of their fellow citizens who were new arrivals at the penitentiary in Bismarck during the same year. 2 We, 3 the citizens of North Dakota, who are so fond of doing things for (mental hospital residents) and to (prisoners) people, surely do not mean to "punish" our fellow citizens detained in Jamestown, but our results and rationalizations are quite similar regarding the use of both institutions. We want to "rehabilitate" and to "treat. ' 4 We also want, whether or not we publicly or formally admit it, to control "deviant" be

The following summary and analysis presents an interpretation of the Donaldson decision that is intended to highlight its possible implications and still unresolved issues. We hope it will serve as a stimulus for our readers to provide us with alternative views and comments on this important decision. Although written by an NIMH staff member, it does not necessarily reflect the opinions, official policy, or position of the National Institute of Mental Health.-The Editors.

Therapeutic jurisprudence is the study of the law as a social force that can produce therapeutic or anti-therapeutic consequences.' While this approach to legal analysis is applicable in a wide range of areas, 2 it is particularly well-suited to mental health law in areas such as civil commitment, incompetence, and insanity.' This Article seeks to view one aspect of the civil commitment of individuals with mental illness through the lens of therapeutic jurisprudence. Specifically, using Florida law as a model, this Article will discuss so-called "ex parte" provisions in involuntary civil commitment statutes in order to examine potential therapeutic and anti-therapeutic conesquences of this statutory power, which is available to families caring for persons with schizophrenia. State civil commitment statutes vary widely in their provisions. Most of these laws vest law enforcement officers and/or mental health professionals with the authority to effect involuntary civ...

The current debate over the "police powers" versus parens patriae rationales for involuntary hospitalization of the mentally ill underscores the need for empirical study of the process of judicial decision making in civil commitment and determinations of competence. The authors report the ratings on 26 descriptive variables made by five Massachusetts district court judges for 35 patients in civil commitment hearings. Nearly all of the hearings resulted in commitments. These findings suggest that psychiatrists may be setting too high a threshold for petitioning for commitment. Experienced judges appeared to be sensitive to the kinds of clinical issues that earlier studies have shown to contribute significantly to the psychiatrist's decision to petition for commitment.

The aim of this article is to analyse the role of the legal representative in therapeutic law, specifically in Swedish administrative court hearings relating to compulsory care. Data are collected from three types of cases where a health or social welfare authority argues that it is necessary to apply coercion to a citizen: the Care of Young Persons (Special Provisions) Act, the Care of Alcohol and Drug Abusers (Special Provisions) Act and the Compulsory Psychiatric Care Act. The data consist of audio-recordings from 39 hearings, supplemented by 28 interviews with participants in these hearings, and court documents. Three primary roles of the legal representatives are identified: defender, spokesperson and therapist. We show how the primary role of the attorney becomes that of the spokesperson, but also that the role of the therapist takes precedence over that of the defender.

The aim of this article is to analyse the role of the legal representative in therapeutic law, specifically in Swedish administrative court hearings relating to compulsory care. Data are collected from three types of cases where a health or social welfare authority argues that it is necessary to apply coercion to a citizen: the Care of Young Persons (Special Provisions) Act, the Care of Alcohol and Drug Abusers (Special Provisions) Act and the Compulsory Psychiatric Care Act. The data consist of audio-recordings from 39 hearings, supplemented by 28 interviews with participants in these hearings, and court documents. Three primary roles of the legal representatives are identified: defender, spokesperson and therapist. We show how the primary role of the attorney becomes that of the spokesperson, but also that the role of the therapist takes precedence over that of the defender.

Through the Eugenics Movement and the Sexual Sterilization Act, close to 3,000 individuals, both men and women experienced non-therapeutic sterilization unbeknownst to them in the Province of Alberta, within the Alberta Provincial Training Schools.  Some of the sterilized individuals have since agreed to accept out-of-court settlements while others, such as Leilani Muir, chose to take the Alberta government to court.  Non-therapeutic sterilizations were performed through tubal ligation, orchiectomy surgery, which is the removal of one or more testicles and hysterectomies on individuals of all ages.  These operations were irreversible causing irrevocable damage that was and is lifelong.
This paper will argue how the law both constructed and regulated the lives of persons with disabilities and how the law has achieved social justice in the lives of some disabled individuals and not in the lives of others.  In doing so, this paper will discuss life on the inside of the Provincial Training Schools and how the treatment of persons with disabilities was inhumane, unacceptable, and oppressive.  The policies and practices of administering the operation of these facilities were unacceptable. Throughout history people with disabilities have been “isolated, incarcerated, observed, written about, operated on, instructed, implanted, regulated, treated, institutionalized and controlled to a degree”. 
Further, this paper will discuss the background of the Provincial Training School in Alberta, addressing the Eugenics Movement and the principles behind the Eugenics Boards.  This paper will further compare the Eugenics Movement with Alberta, Canada and other countries around the world pertaining to eugenics.  This paper will examine the narratives of individuals who experienced compulsory or non-therapeutic sterilization at the hands of Eugenic Boards.  This paper will also focus on various cases that were taken to court and the ramifications therein.  The framework of this paper will be based on law with a humanistic approach, through the Declaration on the Rights of Disabled People, The Canadian Charter of Rights and Freedoms, the United National Convention on the Rights of Persons with Disabilities and the Ontario Human Rights Code.  The rights of persons with disabilities were obliterated through cohesive, oppressive and illegal means, which will be addressed.  In conclusion, the paper will discuss how eugenics is administered today and the legalities surrounding present day eugenics.

Ensminger, J.J., and Liguori, T.D. (1978).  The Therapeutic Significance of the Civil Commitment Hearing: An Unexplored Potential.  The Journal of Psychiatry and the Law, vol. 6, 5-44; subsequently reprinted in Therapeutic Jurisprudence: The Law as a Therapeutic Agent (Wexler, D.B., ed., 1990).

The evidence adduced in the past for the proposition that civil commitment hearings are deleterious to mental patients was largely theoretical, occasionally supported by anecdotes. The criticism seems to have reflected the general antipathy of doctors for everything legal. In fact, the relationship of the involuntarily committed patient to his attorney and numerous aspects of the commitment process contain considerable potential for therapeutic effects. Properly used, the process should be adjunctive to the hospital's function rather than an impediment to it.

Author’s (JE) note (2015):  When Tom and I wrote this, we were handling civil commitment hearings at mental hospitals across the state of New Jersey.  It was not uncommon at that time for judges presiding over the hearings to ask the parties if the hearing would be too disturbing for the patient to attend and many hospital administrators and staff doctors were anxious not to testify in front of the patients.  Tom, who as a field representative in the Department of the Public Advocate, argued with hospital staff members that it was better for the patients to know why they could not leave the hospital (if that was the outcome of the hearing) than to be left in the dark as to what had been said about them.  I, as a trial counsel in the same Department, always insisted that patients be present at the hearings.  We began to believe that the hospitals were losing an opportunity to interact with patients in a way that could help the overall treatment plan by explaining why they thought the patient was dangerous to himself or herself, and/or to others, and should not be allowed to leave.  Patients were frequently told that it was for their own good that they were in the hospital, but no one answered their questions or took their feelings about being confined into account until the mandatory hearing was held. 

Tom and I did not know at the time that we were writing one of the first papers in an area that would become known as therapeutic jurisprudence.  Tom continued to work with involuntarily committed patients until recently.  I left to become a tax lawyer in the early 1980s. One other observation might be of interest regarding the article.  The editor by Psychiatry & Law assigned to work with me and Tom, and in whose loft we had several long sessions while going through every word of the manuscript was Jeff Steingarten, later to become famous as a food critic but at that time a recent graduate of Harvard Law School where he had been on the staff of the Harvard Law Review.

The aim of this article is to analyse the role of the legal representative in therapeutic law, specifically in Swedish administrative court hearings relating to compulsory care. Data are collected from three types of cases where a health or social welfare authority argues that it is necessary to apply coercion to a citizen: the Care of Young Persons (Special Provisions) Act, the Care of Alcohol and Drug Abusers (Special Provisions) Act and the Compulsory Psychiatric Care Act. The data consist of audio-recordings from 39 hearings, supplemented by 28 interviews with participants in these hearings, and court documents. Three primary roles of the legal representatives are identified: defender, spokesperson and therapist. We show how the primary role of the attorney becomes that of the spokesperson, but also that the role of the therapist takes precedence over that of the defender.