Thursday, April 19, 2012

Pass HR0898, rescue the law from psychiatry!

To: Members of the Human Service Committee, Illinois House of Representatives, State Capitol, Springfield, Illinois​

Dear Representative,

I intend this letter to be submitted as written testimony in support of House Resolution 898 (HR0898), sponsored by Rep. Mary Flowers, which is currently being considered in the Human Services Committee.


I have lived in Illinois since 1967, when my father moved our family from Flint, Michigan.  I attended the University of Illinois at Champaign, Northwestern University, and DePaul University College of Law.  My wife of 37 years was born in Chicago, and we raised our three children in this state.  We love the winters and will never move to Florida, Arizona or California.

For ten years, my law practice has been devoted almost exclusively to pro bono representation and advocacy for individuals who are involuntarily committed in state mental health facilities in Illinois.  I’ve seen the inside of Chester Mental Health Center, Choate Mental Health Center, Alton Mental Health Center, Singer Mental Health Center, Tinley Park Mental Health Center, Chicago Reed Mental Health Center, and Elgin Mental Health Center.  I am currently on the “grand rounds distribution list” at Elgin (meaning I get regular notice and invitation to their weekly continuing medical education programs), and I often spend two or three days a week there.  Some people probably wonder if the state pays me, but it does not.

Most of my clients are violent criminals.  At some point a judge looked at each of them and decided, “Well, maybe instead of just punishing this guy who did this horrible, inhuman thing (e.g., murder), we should try to fix him.”  The verdict was therefore: Not Guilty by Reason of Insanity (NGRI).

Formally, an NGRI verdict is an acquittal. However, the defendant is almost always committed to a secure psychiatric facility for a term not to exceed the length of the most severe prison sentence he would have received had he been found guilty on the most serious charge against him. The purpose of this commitment is twofold: protection of the community, and effective treatment of any mental disorder which caused insanity. Once the defendant is effectively treated and he is no longer a danger to the community, the court releases him from the involuntary commitment. This is the essential viewpoint or theory of the law, although there are various bells and whistles.

I will now describe to you what really happens, according to my own substantial experience as an attorney and advocate within this system.

The awkward disaster of psychiatry and Illinois criminal law

When a murderer thinks he can go to a hospital instead of prison or the executioner, it sounds like a pretty good deal to him, and to his lawyer.  His family normally agrees, even (or especially) if they are victims of the crime.

Many elements in the community, not directly impacted by the particular crime but nevertheless interested pursuant to various economic, social and political agendas, may want to use a criminal case as evidence in their advocacy for public resource priorities, or to support a certain status quo which generates payroll checks. Couple these interests with modern liberal tendencies and prejudice in favor of medicine or science to solve every human problem, and we have strong background inertia to favor “treatment” whenever mental illness is credibly advanced as an explanation for a tragedy.

On the other side of the issue, there is always a state’s attorney who finds almost any NGRI plea inherently suspicious. There are usually crime victims and their families thinking more in terms of vengeance than merciful medicine. Sometimes there are media stories, and the reporters can be complete wild cards.

In the middle of it all is a judge, who wants to believe his own decision will not be too arbitrary, or at least not transparently so.

So what appeals to all of these troubled dynamics? What hero rescues everyone from confusion? The expert, of course! The psychiatrist allows us all to abdicate our own judgment without feeling irresponsible. We need not punish crime or blame our fellows harshly, because there is a disease to be magically cured by someone else, who is trained.

(If you’re thinking I should not be sarcastic or exaggerate or simplify… then I would ask: When did you last sit down with psychotic murderers? When did you last confer, behind the locked doors of a state institution, with a treatment team charged with fine-tuning somebody’s brain chemistry to keep him from ever behaving badly again? If you would make the law of places where you will not go, the locals may soon come to find you.)

My clients are those who were found NGRI by the judge, and remanded to the custody of the Illinois Department of Human Services for treatment. Sometime later, each of them decided he didn’t like treatment after all, and he began to refuse it.

The first reaction of a normal layperson might be: He isn’t allowed to do that, is he? He killed somebody…. But of course he’s allowed to refuse. It’s medical treatment, right? People have to give informed consent; you can’t forcibly drug a guy if he’s not hurting anyone now. That would be punishment, and we’ve said these people are not guilty (by reason of insanity), so we have no ethical standing to punish them.

Well then one might think, the “patient” doesn’t know what’s in his own best interest but the psychiatrist does, right? No, actually when it comes down to it, most psychiatrists would not, and do not, say that. They stick to procedures in the forensic system, the doctors defer to the law, and they say they are just following the court’s orders. One often feels that they have forgotten whether they’re doctors, lawyers or policemen.

The man in the white coat and the man in the black robe simply point at each other, and shrug their shoulders cynically.

Meanwhile, the patient or criminal goes nowhere, for approximately $700 per day of the taxpayers’ money. He may not believe he’s mentally ill anymore and may be totally asymptomatic, and he refuses to be drugged into subhumanity for anyone else’s “prophylactic” benefit. The whole concept of “treating the mental illness” that supposedly caused a violent crime to occur begins to fall utterly apart. There is no objective, obvious medical problem, so people start making things up to create “evidence”. The fact that a guy says he’s not mentally ill now proves that he is, even if no other symptoms exist. The irony, that precisely the opposite logic (he only says he’s mentally ill to avoid prison or executioner no matter what other symptoms exist) had been part of the prosecutor’s argument at trial, is never lost, especially on the public.

The apparent solution to all of this, within the ruling paradigm, is better psychiatry, better diagnosis and better treatment.  The problem is that there just isn’t any.

We have come down a long road in Illinois to a point where forensic psychiatry severely demeans both medicine and our law.  Several years ago, I saw the Randolph County State’s Attorney spend hundreds of thousands of dollars to keep a man locked up in Chester, although nothing was wrong with him.  Three expert witnesses testified for each side, saying with equal conviction that the defendant was dangerously mentally ill, and that he was perfectly alright.  The only thing the jury could be sure of in the end was that nobody had proven anything.  It was a giant show of nonsense.  The media were entertained and outraged as they always are, the AFSCME Council 31 union members defended their paychecks, and a candidate for local office lost his election because of the charade.  It was ugly, debased politics: the best forensic psychiatry money can buy! And it’s getting worse, not better, because the state can no longer afford to pay, and patients are more and more likely to disagree with treatment programs every day.

Since that case in Chester, the FDA has ordered black box warnings for psychiatric drugs, mere placebos have proven to be almost equally as effective, and pharmaceutical companies have paid billions in fines for illegal and deceptive marketing.  The hoped-for cures for mental illness have been revealed as problematic indeed. Currently, as the American Psychiatric Association prepares to publish its next diagnostic manual, the mental health profession is almost begging them to avoid the embarrassment.  The “diseases” themselves are as discredited as the cures!  In short, my clients are certainly not the only ones saying they just don’t believe in psychiatry. A necessary solution will be to actually separate this pseudoscience from the law.

Specific problems (examples)

The definition of “mental illness” as that term is used anywhere in Illinois statutes and regulations is established by 405 ILCS 5/1-129:

…a mental, or emotional disorder that substantially impairs a person’s thought, perception of reality, emotional process, judgment, behavior, or ability to cope with the ordinary demands of life, but does not include a developmental disability, dementia or Alzheimer’s disease absent dementia, a substance abuse disorder, or an abnormality manifested only by repeated criminal or otherwise antisocial behavior.

This definition begs any number of questions, e.g.:

The General Assembly apparently presumed either a difference between mental disorders and emotional disorders, or they intended to acknowledge that mental and emotional are alternative terms for the same class of disorders.  The former case would refer to scientific evidence; the latter would indicate the field is scientifically uncertain. What’s the story with this language?

Are the terms, “thought, perception of reality, emotional process, judgment, behavior, ability to cope with the ordinary demands of life” used according to any technical definition, or merely intended to convey regular lay usage and understanding?  If the former, where are such definitions found?  If the latter, isn’t this whole concept left pretty wide open for interpretation?

Why exactly aren’t developmental disabilities mental illnesses?  Is there really any fine line between these concepts, in any individual at any moment?  What about a seven-year-old having trouble on the school playground?  Can’t this be looked at either way?

Why exactly do we exclude dementia, and Alzheimer’s disease absent dementia?

Why do we exclude substance abuse disorders from mental illness?  If a college student gets an ADHD diagnosis so he can have access to stimulants (and perhaps share them with friends on occasion), does he have a mental illness or is he abusing a substance?  If a teenager takes LSD and has a psychotic break which lasts a few days, is she mentally ill?  “Substance Induced Psychotic Disorder” is an official DSM-IV coded diagnosis. Doesn’t that mean it is a mental illness?

Aren’t all mental illnesses manifested only by behavior which is perceived as either criminal or antisocial to some degree?  So how can we exclude those very symptoms which are the sole basis for diagnosing the disease?

The bottom line is that we don’t define mental illness with any certainty or consistency under the law.  We can’t, because we just don’t know what it is, as a reality.  We only know that we would like to control peoples’ bad behavior without being too mean about it, so a medical model has great allure. To the degree that it’s only a metaphor, or for that matter a lie, well, the complexity mounts up rapidly, the law becomes gibberish.

405 ILCS 5/1-119 depends (!) upon the clarity of 405 ILCS 5/1-129 to further define the circumstances under which we justify depriving a person of his or her fundamental right to liberty, through forced imprisonment, in a locked and barred “hospital”:

“Person subject to involuntary admission on an inpatient basis” means:

(1) A person with mental illness who because of his or her illness is reasonably expected, unless treated on an inpatient basis, to engage in conduct placing such person or another in physical harm or in reasonable expectation of being physically harmed;
(2) A person with mental illness who because of his or her illness is unable to provide for his or her basic physical needs so as to guard himself or herself  from serious harm without the assistance of family or others, unless treated on an inpatient basis; or
(3) A person with mental illness who:
(i) refuses treatment or is not adhering adequately to prescribed treatment;
(ii) because of the nature of his or her illness, is unable to understand his or her need for treatment; and
(iii) if not treated on an inpatient basis, is reasonably expected, based on his or her behavioral history, to suffer mental or emotional deterioration and is reasonable expected, after such deterioration, to meet the criteria or either paragraph (1) or paragraph (2) of this Section.
In determining whether a person meets the criteria specified in paragraph (1), (2), or (3), the court may consider evidence of the person’s repeated past pattern of specific behavior and actions related to the person’s illness.

It is not necessary to catalogue the vast number of unanswerable questions this section of our law raises. The totem-pole “reasonable expectations” alone would require a flow chart to even begin to decipher. The bottom line? This “law” is embarrassing nonsense. It cannot possibly constitute any common social understanding or agreement, and it only serves to allow some remote, designated expert to decide, according to whim, who gets locked up and who may walk free, who is allowed rights as a human being and who is dehumanized.

Sections 405 ILCS 5/1-129 and 405 ILCS 5/1-119 are two examples with which I am particularly familiar, but they are by no means exceptional or even the most glaring instances of problematic law and regulation due to scientific and medical confusion over mental diagnosis. The fields of school law, child protection, disabilities, health care, employment, discrimination, and welfare are all hopelessly infected (please excuse the irony of my metaphor).


There may come a time when such nonsense as I have described above earns more open and widespread cynicism about the law, medicine, science, and reason itself. Illinois has an unfortunate reputation already in the world of politics.  We should not bear this additional burden of disreputable psychiatry, which weakens the fundamental bases of our culture.

House Resolution 898 is a careful statement of the problem, and it merely calls for an organized, democratic evaluation.  I believe it will enable our state to get out in front of these issues, avoid much worse controversy down the road, and actually save much expense in lives and treasure.

I therefore respectfully urge you to pass HR0898.

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