LEGAL POSITION AND SUGGESTED ARGUMENTS: POSSIBLE GENERAL IMPLICATIONS FOR STATE FORENSIC MENTAL HEALTH INSTITUTIONS

(Summarized upon request of a state hospital treatment team and patient "Mr. X", and offered as an earnestly recommended, though admittedly radical strategy: February, 2012, by the patient's attorney.)

Situation

Mr. X was found "Not Guilty by Reason of Insanity" for murder over thirty years ago. He is diagnosed on Axis I with schizophrenia. He’s in his mid-sixties now, and has had no symptoms of psychosis for many years, despite not taking any psychotropic medication. The court has granted increased privileges gradually, but very likely remains impressed by a supposed bottom-line necessity for psychotropic medication if this type of patient is to be granted a conditional release. The treatment team wonders what to do next.

Relevant considerations

1. Viewpoint of the court.

The court has only one valid purpose consisting of two elements: See that Mr. X is treated humanely, and keep him secure to ensure the ultimate safety of the community.

Mr. X was not culpable for the murder he committed because he was insane. The court, as society’s agent, is not supposed to have any interest in punishing him. However Mr. X's treatment is not entirely for his own benefit. In fact, it’s much more for society’s safety as far as the court is concerned, and this is the first element of the court’s only valid purpose. Iatrogenic neurological disability would actually be justified, even if it were grossly dehumanizing (think of the old fashioned ice pick lobotomy), on this basis alone.

However, the second element is the social imperative to be humane. Society places very high negative value on cruelty, so it becomes the court’s job to minimize or eliminate cruelty. Society believes, and the court is utterly committed to the idea, that scientific medicine is one of the best solutions man has devised to increase human comfort and happiness with less perpetration of cruelty among competing individuals in a severe world.

Therefore, the court remanded Mr. X to the custody of the state’s experts in mental health, a scientific medical specialty, to miraculously improve his personality and behavior by fine-tuning his brain chemistry until he becomes an upstanding citizen and society is secure.

Although the court is essentially aware that the state’s experts in mental health are not really miracle workers to this degree, it rather desperately wishes they were. And it may bitterly resent any reminders that the experts fall short of such an ideal, because the court, like the society which it serves, is afraid of being fooled or cheated.

Judge Z should not be interested in the treatment team’s uncertainties. He theoretically wants only their relatively confident synopses of empirical knowledge, applied to the case and question at bar. However, the court and (even more so) the State’s Attorney, will welcome almost any artifice to argue or justify a decision for keeping a murder defendant locked up. Thus, any uncertainties of the clinical team (or the court's “independent” experts) might be seized upon to serve that purpose more readily than if they favor release.

There is a standard described as “reasonable medical certainty” - but all that really means is any confident opinion voiced by a doctor. Opposing and equally reasonable “medical certainties” are presented to the court all the time, and those win which just sound a little bit more confident and understandable to the judge who’s there that day. The court knows very well that expert testimony is only “objective truth” in some small, nominal way. It’s mostly persuasion, and that is not any problem, but part and parcel of our system of law.

2. Viewpoint of the clinical team.

The team consists of public employees who have varying levels of medical and non-medical expertise. As a team, they are expected to restore the mental health of a patient to a point where he or she will not be a danger or severe burden to the community, before the patient will “Theim out” (be released pursuant to a U.S. Supreme Court precedent regardless of treatment success or failure).

There is a presumption that poor mental health was in fact what caused the patient to be dangerous, before the team ever laid eyes on him. The team is not really allowed to dispute that issue, but is paid by the state to work within the presumption.

For at least a couple generations now, mental illness has been conceived to be a proper medical problem. This is basically because there was once great optimism that it must be caused by brain disease, which could with improving scientific research, etc., be identified and ultimately cured. In any event, nobody yet claims any ability to cure mental illness: it just gets treated, with the goal being a limited, temporary, or at least more modest improvement than a true, simple and permanent cure.

The only thing relevant to mental illness or the lack of it, which the team can objectively observe or test, is the patient’s behavior. (This includes what the patient says, or writes, as well as how he acts.) No clinician, no matter how good they are or what tools they have, can know with any certainty what the patient thinks, or how he feels: such conclusions are entirely derived from observed behavior.

Applied medical technology, e.g., psychotropic meds, may have observable and predictable correlations with behavioral changes. However, nobody is sure how or why that works. These days, people pretty high up the food chain of cutting-edge psychiatric research are admitting (just for example) that the “chemical imbalance” theory of mental illness was always an urban legend, and any competent psychiatrist should have always known that.

So treatment does not equal medication. Treatment is rather whatever can, without a lot of ugliness, produce a stable, positive change in the bad guy’s behavior. This is where the team’s real expertise lies. For all practical purposes, the public pays the forensic mental health treatment team not for expertise about the mind or neurology or philosophy. They pay them to be experts at mercifully changing very bad behavior.

Treatment must be collaborative. Involuntary “treatment” is never more than a desperate emergency measure. Dr. Y doesn’t prescribe medication unless Mr. X agrees to take it, as long as Mr. X is not beating up everybody in the room daily. Although he killed somebody, and society will not let him walk out of the state hospital now, the only valid treatment for Mr. X must have his un-coerced stamp of approval. It just doesn’t qualify as treatment otherwise. This is an element of the team’s empirical, clinical expertise. It is part of why they are a team, not just Dr. Y alone, dictating medical details without need or allowance for questions, perspectives or other help than his own. It’s part of why we have mental institutions and a professional specialty of forensic psychiatry, not just police forces, prisons and pharmacies.

The treatment team’s professional pride is in delicate collaboration and caused stable behavioral change among people who can only be feared and loathed by the lay public. This is a relatively heroic activity.

3. Viewpoint of Mr. X’s attorney.

I couldn’t care less whether Mr. X has schizophrenia, epizootiphrenia, drapetomania, or any other specific, defined “mental illness”. He killed somebody and he’s not being punished for that, but everybody wants to be sure he’ll behave himself in the future. It’s an extremely dicey speculation, and I never would have become involved with it at all, except that this state has unfortunately made it a very bad part of the law (my profession), which needs cleaning up!

It seems to me that convincing Judge Z, the Department and the treatment team to arrange the conditional release of a schizophrenic killer who is not taking psychotropic meds will help. For one thing, it will remind everyone of the practical responsibility to change a bad guy’s behavior, as opposed to just pretending they can fix his brain whether he likes it or not.

As a society, we have gotten too damn complex and glib about evil. We call Dr. Y-the-wizard-with-a-magic-pill to “cure” killers, instead of personally standing on the bridge and telling the X-monster, you shall not pass! We have a death penalty in our state, but no capital case juror will ever be required to flip the switch personally. When the law is a machine and a Rube Goldberg menagerie of impersonal processes, it insults me. And it makes me feel terribly insecure, like nobody’s really there.

I think Mr. X has been successfully treated and cured of schizophrenia, or he has outgrown it, or he has learned not to act crazy, whichever works. The Department, the state hospital, Dr. Y and the treatment team deserve full credit for this result. Mr. X’s behavior has been exemplary and stable for a long time. The fact that he has been so symptom-free without medication for an extended period actually makes the prospect of his continued recovery in the community even better.

In any event, beyond a certain point in time there is no further clinical treatment purpose for keeping Mr. X at a state hospital, running up the taxpayers' $450/day tab! The chance that Mr. X will hurt anyone because of mental illness is slim already, and it can never be reduced to absolute zero. We could keep him psychiatrically confined for many more years, and we would be no more certain about this than we already are, unless we just keep him until he dies.

Mr. X should be conditionally released to a situation where he will be closely monitored for five years, and where regular reports will be sent to the court, random drug screens done, etc. He should not be required or even encouraged to take psychotropic medications, while he has no symptoms of psychosis. Given that Mr. X is healthy and in his sixties, I think he would be crazy to start taking meds now. It would be more likely to destabilize him than serve any hypothetical “prophylactic” purpose.

Suggested handling

1. Start putting a packet for conditional release together now, and file it with the court as soon as possible. The violent crime and schizophrenia dx, with no psychotropic meds, will certainly be a sticking point at all levels. Work through this problem, which exists almost exclusively in institutional culture, not in empirical medicine. Do not merely fudge the paperwork to make it look like a new evaluation just happens to change the Axis I. There are plenty of published, empirical psychiatric research studies to justify an expert opinion that Mr. X’s dx does not have to be wrong to explain the observed fact that he’s fine now. Locate and read the professional research, and get comfortable with that perfectly valid opinion.

2. Send a straightforward, confident recommendation to the court stating that Mr. X is suitable for conditional release; and that the risks of treatment with psychotropic medication would outweigh any possible (e.g., prophylactic) benefits in his case, hence they should not be prescribed. State this as the expert opinion of the Department treatment team, held with a reasonable degree of medical certainty.

3. When the court's independent evaluation comes back in total disagreement (which it will), litigate the issue aggressively. Judge Z will almost certainly go with the opinion of the court's independent evaluator, rather than the Department opinion. So what? Use the opportunity to move the court’s opinion in our direction as much as possible. Enter every possible study into evidence, showing that people perhaps do spontaneously recover from schizophrenia without meds, that nobody really knows the brain basis of schizophrenia and there may not be one, that schizophrenia may not even be properly described as a unitary “disease”, etc. Enter every study showing the dangerous side effects and complex downside of psychotropic meds. Recruit outside expert witness testimony to back these points up.

4. When Judge Z denies the petition for conditional release (which he will), file another one as soon as the statute permits, and litigate the whole thing all over again, but better.

5. Repeat this procedure until a conditional release is granted without any recommendation for psychotropic medication, despite an Axis I schizophrenia dx.

6. Keep in close touch with Mr. X after he is conditionally released and don’t let him screw up.