Today's Chicago Tribune (page 25) includes the ostensibly pro-family perspective of attorney William Choslovsky. I'm mainly in favor of respecting the choices of families over those of self-proclaimed advocates, and certainly over those of state bureaucrats.
However, it is absolutely critical to presume, first of all, that the disabled may speak for themselves. It's only when an individual disabled person clearly does not speak for him or her self, that we may ethically consider anybody else's choice.
This is more complicated than it looks because disabled people do not really speak for themselves when they cannot pay, in addition to when they are actually incapable of speech. For that matter, to the degree that any of us cannot pay for or independently create what we want, we are all "disabled".
Many Americans may sincerely wish to live in the White House, but they must respect highly ritualized choices of around a hundred million fellow citizens on that, and they only have one chance every four years. This is not an entirely different kind of conflict from one where a profoundly retarded person sincerely wishes to live in their own home, but cannot work to pay the mortgage. Who speaks for another is not an entirely different kind of question from who depends on whom.
Hopefully we each depend, first of all, on ourselves. After that we have families, friends, community groups, organizations and governments, more or less in that order. Who speaks for us is closely tied to whom we depend on. It just has to be.
It's not a question of who, in all cases, ought to speak for the disabled. It's a separate question in each case, which is inextricably bound up with the particular relationships and dependencies of the individual disabled person.
If Johnny murdered his girlfriend and was found not guilty by reason of insanity, and mom and dad have the idea that Johnny was adopted after all, so it's probably a genetic mental illness and they can't help him, then maybe Johnny is not represented any better by mom and dad than he is by the state, when they say he needs to take anti-psychotic medication for the rest of his life. And in fact, if Johnny can't pay for his own private attorney, he'll sure have to deal with other agendas.
NAMI has served the interests of medical psychiatry and pharma for thirty years with a heavy pretense of being all for families who know what's best for their own mentally ill. Obviously it's not always true. Sometimes people just want a magic pill, and they can be fooled. Calling a person disabled can be a power play, too.
I worked for a client who was at Choate Mental Health Center in Anna, IL. That's the facility offered by William Choslovsky as an example of a campus with real community life, where Rita and Kevin Burke's son Brian lives happily. My client would certainly argue that Choate was a prison for him, and the state should close it and every institution like it.
He speaks for himself, and I agree with him.
Friday, May 25, 2012
Monday, May 14, 2012
Another proposed resolution...
RESOLUTION
WHEREAS, Systematic review has been undertaken over the past decade at national, state and local governmental levels, and in collaboration with private and not-for-profit research, regarding strategies to address potential incidents that could have large-scale health consequences including disease outbreaks, natural disasters and terrorist attacks; and
WHEREAS, The U. S. Department of Health and Human Services, after conducting its own review of these issues, published a National Health Security Strategy of the United States of America in December, 2009; and
WHEREAS, The 2009 HHS Strategy is replete with statements recognizing an overarching necessity to convince the people to trust and independently cooperate, at the individual, family and community levels, with organized efforts by authorities in the amelioration of any significant health incident; and
WHEREAS, Contrary to these overarching security needs for broad trust and cooperation, notable social trends now exist toward increasing public doubt and cynicism, especially with regard to medical science and health care; and
WHEREAS, An example of such doubt and cynicism was a New York Times book review in 2009, which characterized Americans' recent love affair with modern psychiatry as a sub-prime crisis waiting to happen; and
WHEREAS, Over the last several years, the American Psychiatric Association and the world community of mental health professionals have been in an uproar regarding the general validity of psychiatric diagnosis, as evidenced by incessant protests over the new paradigm of "dimensional" definitions of mental disorder to be established in 2013 by the publication of the fifth revision of the APA's Diagnostic and Statistical Manual of Mental Disorders (DSM-5); and
WHEREAS, Endemic, spectacular and increasingly frequent media stories of health care fraud and falsified medical studies are not conducive to pubic confidence in and cooperation with authority on issues of health; and
WHEREAS, An ultimate security threat might entail a catastrophic failure of confidence in authority and cohesion in the face of disaster; therefore
BE IT RESOLVED BY THE LEGISLATURE, That a fundamental distinction shall be recognized: between practical and empirically-proven medical science and clinical health care practices, as opposed to popular or academic scientism embodying mere theories or wishful thinking about easy solutions to human behavior and magic pills for all unpleasant life experiences; and be it further
RESOLVED, That our government shall refrain whenever possible from forcing, coercing or deceiving families or individuals into health care solutions which they do not choose themselves by fully informed consent; and be it further
RESOLVED, That human emotions and complex behavior are not realistically a subject for, and may never be amenable to, medical management, especially such management as should ever be attempted by any state medical or mental health bureaucracy; and be it further
RESOLVED, That fundamental and vital principles of any health security strategy shall be free and honest information, open dialogue, and collaboration with the people.
WHEREAS, Systematic review has been undertaken over the past decade at national, state and local governmental levels, and in collaboration with private and not-for-profit research, regarding strategies to address potential incidents that could have large-scale health consequences including disease outbreaks, natural disasters and terrorist attacks; and
WHEREAS, The U. S. Department of Health and Human Services, after conducting its own review of these issues, published a National Health Security Strategy of the United States of America in December, 2009; and
WHEREAS, The 2009 HHS Strategy is replete with statements recognizing an overarching necessity to convince the people to trust and independently cooperate, at the individual, family and community levels, with organized efforts by authorities in the amelioration of any significant health incident; and
WHEREAS, Contrary to these overarching security needs for broad trust and cooperation, notable social trends now exist toward increasing public doubt and cynicism, especially with regard to medical science and health care; and
WHEREAS, An example of such doubt and cynicism was a New York Times book review in 2009, which characterized Americans' recent love affair with modern psychiatry as a sub-prime crisis waiting to happen; and
WHEREAS, Over the last several years, the American Psychiatric Association and the world community of mental health professionals have been in an uproar regarding the general validity of psychiatric diagnosis, as evidenced by incessant protests over the new paradigm of "dimensional" definitions of mental disorder to be established in 2013 by the publication of the fifth revision of the APA's Diagnostic and Statistical Manual of Mental Disorders (DSM-5); and
WHEREAS, Endemic, spectacular and increasingly frequent media stories of health care fraud and falsified medical studies are not conducive to pubic confidence in and cooperation with authority on issues of health; and
WHEREAS, An ultimate security threat might entail a catastrophic failure of confidence in authority and cohesion in the face of disaster; therefore
BE IT RESOLVED BY THE LEGISLATURE, That a fundamental distinction shall be recognized: between practical and empirically-proven medical science and clinical health care practices, as opposed to popular or academic scientism embodying mere theories or wishful thinking about easy solutions to human behavior and magic pills for all unpleasant life experiences; and be it further
RESOLVED, That our government shall refrain whenever possible from forcing, coercing or deceiving families or individuals into health care solutions which they do not choose themselves by fully informed consent; and be it further
RESOLVED, That human emotions and complex behavior are not realistically a subject for, and may never be amenable to, medical management, especially such management as should ever be attempted by any state medical or mental health bureaucracy; and be it further
RESOLVED, That fundamental and vital principles of any health security strategy shall be free and honest information, open dialogue, and collaboration with the people.
Friday, May 11, 2012
Suggested Resolution to be Introduced in State Legislatures and/or the U.S. Congress
RESOLUTION
WHEREAS, Love and loss are two sides to the same coin of human connection; and
WHEREAS, Bereavement, especially traumatic bereavement such as comes with the sudden death of a spouse or a child, may bring existential grief and the darkest hours of human experience; and
WHEREAS, We cheapen and demean our own humanity and disqualify ourselves from loving, if we merely label the grief of mourning as a "mental illness" on a par with biological dysfunctions like diabetes or cancer, to be "cured" with a pill; and
WHEREAS, A psychiatric diagnosis of depression can be misapplied to a person who is grieving; and
WHEREAS, The several editions of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) published since 1980 have defined depression, or Major Depressive Disorder, in terms of a checklist which has included sadness as a symptom tending to indicate a diagnosis; and
WHEREAS, An exclusion of sadness due to bereavement, as a symptom of mental illness needing medical treatment, was reduced from one year in the American Psychiatric Association's DSM-III (published in 1980) to two months in DSM-IV (published in 1994); and
WHEREAS, The proposed bereavement exclusion in DSM-5 (to be published in May, 2013) is only two weeks, meaning for example that the bereaved parent of a child lost to murder or suicide, or the spouse of a dead husband or wife of 50 years, would be labelled mentally ill for grieving longer than two weeks and encouraged to take powerful, expensive and potentially dangerous psychotropic medications; and
WHEREAS, Many experts in diverse mental health fields believe this DSM-5 scheme will be patently unscientific, arbitrary and potentially harmful to patients and clinical practice; therefore
BE IT RESOLVED BY THE LEGISLATURE, That all people have a natural human right to grieve for life's losses, and especially for losses of loved ones; and be it further
RESOLVED, That no one should be judged as having a medical or mental disorder because of normal sadness over significant loss; and be it further
RESOLVED, That the right to grieve without being labelled as ill may not be limited to any short time of a few weeks or months, because each individual must face bereavement in his or her own way and in his or her own time, and for many genuine grief over the loss of a loved one lasts for life; and be it further
RESOLVED, That our Government shall always recognize human grief and human love alike as precious to life itself, existential, and ultimately beyond the scope of mere scientific medicine.
WHEREAS, Love and loss are two sides to the same coin of human connection; and
WHEREAS, Bereavement, especially traumatic bereavement such as comes with the sudden death of a spouse or a child, may bring existential grief and the darkest hours of human experience; and
WHEREAS, We cheapen and demean our own humanity and disqualify ourselves from loving, if we merely label the grief of mourning as a "mental illness" on a par with biological dysfunctions like diabetes or cancer, to be "cured" with a pill; and
WHEREAS, A psychiatric diagnosis of depression can be misapplied to a person who is grieving; and
WHEREAS, The several editions of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) published since 1980 have defined depression, or Major Depressive Disorder, in terms of a checklist which has included sadness as a symptom tending to indicate a diagnosis; and
WHEREAS, An exclusion of sadness due to bereavement, as a symptom of mental illness needing medical treatment, was reduced from one year in the American Psychiatric Association's DSM-III (published in 1980) to two months in DSM-IV (published in 1994); and
WHEREAS, The proposed bereavement exclusion in DSM-5 (to be published in May, 2013) is only two weeks, meaning for example that the bereaved parent of a child lost to murder or suicide, or the spouse of a dead husband or wife of 50 years, would be labelled mentally ill for grieving longer than two weeks and encouraged to take powerful, expensive and potentially dangerous psychotropic medications; and
WHEREAS, Many experts in diverse mental health fields believe this DSM-5 scheme will be patently unscientific, arbitrary and potentially harmful to patients and clinical practice; therefore
BE IT RESOLVED BY THE LEGISLATURE, That all people have a natural human right to grieve for life's losses, and especially for losses of loved ones; and be it further
RESOLVED, That no one should be judged as having a medical or mental disorder because of normal sadness over significant loss; and be it further
RESOLVED, That the right to grieve without being labelled as ill may not be limited to any short time of a few weeks or months, because each individual must face bereavement in his or her own way and in his or her own time, and for many genuine grief over the loss of a loved one lasts for life; and be it further
RESOLVED, That our Government shall always recognize human grief and human love alike as precious to life itself, existential, and ultimately beyond the scope of mere scientific medicine.
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.
Background
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).
Conclusion
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.
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.
Background
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).
Conclusion
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.
Monday, February 20, 2012
Jail and the mentally ill
Bridget O'Shea's article on yesterday's NY Times Health page featured Sheriff Tom Dart and others, complaining about Cook County Jail being the biggest mental health provider in Illinois. I never quite know what to say to people who seem to think this is so pathetic.
The presumption of course, is that individuals who are sick belong in hospitals, not jails. But there's a highly ironic and eery similarity between mental "hospitals" and jails. The people of Illinois should notice, just for example, that these hospitals have locked doors and guards to make sure the "patients" don't escape.
I would love to walk around the cell blocks at 26th and California with Tom Dart, and say, "OK Sheriff, point out one guy here who's mentally ill as opposed to just a bad guy, and explain to me how you yourself can tell." My guess is, he'd only be able to reliably distinguish between the regular criminals and the mentally ill in his own jail by looking at a file or a record, or asking somebody else who had looked in a file or record, which might include pronouncements by psychiatrists or other so-called mental health professionals.
These pronouncements are called diagnoses. But the people who make them are completely confused these days about whether and in what sense they are valid at all. There's is never any objective test, and DSM-5 intends to define mental illness of every kind on an unbroken continuum with normal behavior. In other words, nobody knows exactly where to draw a line between the guys who are sick and the guys who are bad at Cook County Jail.
For ten years, I've worked with "patients" in this system who were found not guilty of violent crimes by reason of insanity. I'm down at 26th & Cal almost every week. Some of my clients have been basket cases who didn't brush their teeth or bathe; others have been smart, totally symptom-free, unmedicated murderers. Sometimes their doctors have insisted that they had to take psychotropic drugs, or even threatened to get court orders to force them; other times the clinical team has carefully contrived to change a diagnosis so a non-drug treatment plan could be justified to a true-believing judge.
The one thing that's always obvious is, it's not medicine or science in any sense that the public could ever recognize. It's a tortured attempt at a giant social control machine which can run on automatic without any responsibility by any individual human being, so nobody ever has to be punished, or blamed, or wrong. People can just get their brains fine-tuned by the experts, and we can all live happily ever after.
This is the probably most destructive social delusion in history. Maybe it's easy for Sheriff Dart to pretend he's being humane and scientific and medical, when he moans about too few state nuthouses to relieve his crowded prison. The truth is he's just passing the buck like all the other helpless, wasted bureaucrats we pay.
And ultimately, the New York Times reporter has no excuse not to know that. Nor do any of the rest us.
Thursday, February 9, 2012
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.
(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.
Monday, December 5, 2011
The Therapeutic/Protective Service State: Guerrilla Actions
Individuals who refuse psychiatry when their betters think they should accept it are quite likely to suffer wrathful coercion from what Tom Szasz calls the Therapeutic State.
Families and groups who are cynical about the proclaimed beneficence of the Protective Services State (e.g., "Child Protective Services" or "Department of Children and Family Services") may also be regarded essentially as though they are mentally ill. They will be presumed to not know what is best for their own children, and they will be asked to prove negatives which are impossible ("How can we know for sure that this won't happen again?").
Children misbehave, sometimes badly. Parents are not supposed to punish them anymore, they're supposed to turn them over to experts outside the family who are employed by the state. It's very similar to (and sometimes it directly and explicitly involves) forensic psychiatry.
So if your 13-year-old child rebels against a type-1 diabetes diagnosis, runs away from home, gets pregnant and learns how to selectively manipulate you and the CPS bureaucrats back and forth against each other depending on whom she wants to defy on any given day, well guess what? You're quickly going to feel very much like somebody who is involuntarily committed in a state nuthouse.
The key to understanding the similarity is the concept of institutional machines meant to do things that individual people shouldn't have to do or don't want to do. Forensic psychiatry and child protective services are attempts at dependable, impartial, no-fault, objective processes to relieve real people from having to pay attention. The experts running the machines supposedly know how people -- as cogs in other machines -- ought to work. It's all nonsense, of course. The real world results are consistently and embarrassingly terrible. And anyone who knows himself or herself to be more than just a cog in somebody else's machine instinctively hates both forensic psychiatry and child protective services, or at least they do when these institutions are aimed "incorrectly" (at them).
But by the time people find out that forensic psychiatry and child protective services alike are all about state tyranny, not about state therapy or state protection or helping anyone, well, it's too late, you "can't fight city hall." You have to collaborate (which means surrender) or the machine crushes you, and everyone -- even your family -- will say it's your fault!
Back in 1964 a young man named Mario Savio gave a beautiful speech in Berkeley, about making the machine stop. It was a clarion call for civil disobedience and guerrilla actions.
Now, a half-century after the Berkeley Free Speech Movement, we confront forensic psychiatry and child protective services, and we lose over and over again. How can we put our bodies upon the gears and upon the wheels and upon the levers, and upon all the apparatus, and make it stop?
The following three tactics or principles are suggested, as the most basic guerrilla strategy.
Tactic/principle #1. Don't participate, even tacitly. Don't acknowledge that anyone is trying to help you, if it doesn't feel like help to you. Don't let anyone say you agreed to something, if you don't think you actually did agree, freely. Never let anyone call something your duty or your job, if you never actually accepted it as such, yourself.
If your psychiatrist can't confirm that you have a "chemical imbalance" by way a blood test or a brain scan (which of course, they cannot do), don't accept his explanation about why the meds are therapeutic. If they get a court order for involuntary medication, make them hold you down to inject the drug into your body, never let them pretend it's not forced.
Never acknowledge the social worker's expertise or the guardian ad litem's authority over your child. Never fail to challenge their motives, which are egocentric, elitist, ignorant and mercenary. Never believe these people are acting in anyone's best interests but their own.
Just don't ever cave or agree, at least not in your heart. The little tyrants are trained and drilled to trick you into thinking that you have agreed when you haven't, that something was your idea when it wasn't, that something is best for you when it's their own arbitrary, pet theory. You might pretend, just to gain somebody's confidence or a tactical advantage. But don't ever forget what you know yourself.
Tactic/principle #2. Make it an expensive, time consuming nuisance. The reason the state makes machines and automatic, uniform processes is that people think they can't afford to deal with live individuals. So, be a very live individual. When somebody mentions a policy, make them show it to you in writing, then make them tell you its purpose. If answers don't make sense, keep asking, don't let it drop. Be that child who asks "Why?" to every answer, endlessly until all the parent has left is, "Because I say so!" The state pretends to rationality, not force, so it is more vulnerable than a parent, it has to keep explaining.
A friend told me years ago that the law is reasons (small r, plural). Whoever has more of them and is willing to stand up and say them longer than the other guy, wins. The reasons don't have to be all that good, either. They just have to be good enough that nobody is sure you don't believe them yourself. If you have more reasons, more questions, if you're staying longer and talking more than the little tyrant wants to, you'll win. You have to wear them down, be the squeakiest wheel they've ever heard.
The state appears to have all the money, but the little tyrants are often answerable for their efficiency or lack of it. If it's generally expected that one hearing will result in the efficient disposition of a case, the bureaucrat who can't finish it in three hearings can look pretty bad to his or her boss. When a member of a mental health treatment team has to have legal representation for a deposition and that has to go into his boss's budget, well, maybe the machine will figure out it's easier not to petition for involuntary treatment, or not to place a child in a foster home, after all.
Always ask for a change of venue, always ask for a different judge, but always have more reasons than anyone thinks you could possibly need. Always make them late for dinner.
And by the way, when it comes to this factor of expense, if you can easily pay thousands for a lawyer, it can help you a lot. But many lawyers (especially the ones whom the court appoints for you for free) really believe in the system you're fighting against. You can still use them, they are ethically required to follow your instructions and your strategy if they are representing you. But be aware that you may be spending (or paying for) lots of hours arguing with your own attorney. I hate to say it, but sometimes it might be better to study the law and represent yourself.
Tactic/principle #3. Always look for the good in each individual, even while you never miss an opponent's lie or illogical, arbitrary claim. Ultimately you can separate well-intended individuals from the state machines which they think they have to slavishly serve. Expect this to happen.
You are in the right, and a good person will know that. Get them to betray the empire, remove them from the matrix. Love your enemy.
If you are more persistent than they predict you could ever be, if you are a very creative nuisance, and if you look for the good in individuals and presume they will ultimately come around to your side, you'll be surprised how often you'll get defectors.
And you might end up a hero.
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