A BAD IDEA OF LAST RESORT
By John Weston Parry, J.D.
The Unfortunate Role of Many in the Medical Establishment
To add gravitas to the legally dubious, economically unsustainable, and morally corrupting idea of forcing more people with mental disabilities into long-term civil institutions that would be deceptively characterized as “modern psychiatric asylums,” a faction of the medical establishment is relying on three “ethicists” and a hospital staff psychiatrist to make the case in the Journal of the American Medical Association and a New York Times editorial, respectively. When one removes the 1984 double-speak about ushering in the wonderful new world of psychiatric asylums, the arguments in favor of this bad idea boil down to two unfortunate realities: a legal history of neglect and abuse of persons with mental disabilities that almost makes this idea sound like a plausible alternative to the status quo; and the American Medical Association (AMA) potentially satisfying the perceived interests of its pharmaceutical benefactors and many of its psychiatrist members.
The medical, psychiatric, and pharmaceutical entrepreneurs pushing this proposal conveniently ignore the fact that the medical profession, especially psychiatry, opposed and derailed proper funding of community-based services when deinstitutionalization was being implemented in the mid-1970’s, and thereafter. Essential community-based services have never been funded even close to adequately, which has led to the unconscionable criminalization of persons with mental disabilities lacking those essential services. Nevertheless, representatives of this AMA trial balloon want to piously declare deinstitutionalization a social miscalculation and conceptual failure, rather than one born of medical, legal, and political neglect, and ill will.
Instead of endorsing increased funding for prevention and community-based services, this AMA-supported collective is proposing a return to a system of institutional care and treatment, which for a vast majority of people who have been confined in coercive mental institutions—whether civil, quasi-civil, or criminal—has proven to be inhumane, abusive, and counterproductive. Since the 1950’s, it has been widely known and understood by sociologists and other scholars that coercive institutional care and treatment, with very few exceptions, is dehumanizing, both for the residents and care givers. Erving Goffman, widely considered the most influential North American sociologist of the Twentieth Century, concluded during the 1960’s that this dehumanization process was inevitable. Nevertheless, it is being argued that coercive institutionalization is the best available solution for people with severe, chronic mental disorders because these new asylums probably will not be as bad for their patients as homelessness, other forms of abject poverty, or residing in prisons, jails, or other secure detention centers—all without any meaningful care and treatment.
Also—not coincidentally—this “new” form of coercive long-term, civil institutionalization will provide a significant source of income for those who own, operate, manage, and staff psychiatric asylums. These facilities will become non-profit, profit centers for pharmaceutical companies and some ethically-challenged doctors. Perhaps there even will be enough money left over to provide minimally adequate care and treatment to some of the residents of these involuntary psychiatric facilities. The vast majority of patients, however, are very likely to be administered powerful anti-psychotic drugs without much else, at the convenience of staff, with little or no oversight because that has proven to be the most cost-efficient way to manage residents in these expensive, dehumanizing facilities.
Every type of large scale, long-term institutionalization of Americans with mental or physical impairments has provided a vast majority of their residents with inhumane care with high levels of abuse and neglect, especially if the residents have cognitive and other mental issues to contend with. An unconscionably high percentage of the people in the United States, currently receiving long-term institutional care—including children and adolescents in psychiatric facilities, people with developmental disabilities in residential centers, and people in nursing homes—are being neglected and abused. No system of oversight has worked effectively on a national basis. Long-term institutional care in this country has never benefited a majority of the people who are forced to accept such care. Nonetheless, a faction of the medical profession’s psychiatric branch wants to be authorized to place more people with mental disabilities into these long-term institutional care facilities because they claim that—magically or perhaps mystically—these coercive, long-term facilities will be relieved of their proven deficiencies by rebranding them as “psychiatric asylums.”
Things will be different Lucy tells Charlie Brown sweetly as she pretends to hold the football securely, tricking him one more time into trying to kick the football without predictably falling on his ass. As with predictions more generally, past performance is the best indicator of future results. The performance of the psychiatric profession with regard to coercive institutionalization has been poor, often negligent and abusive, and in certain instances criminal.
There are three important reasons—beyond distrusting the medical establishment’s judgment in this particular psychiatric policy arena—why the idea of involuntarily institutionalizing more people with mental disabilities is a horrendous idea: (1) it would be and should remain illegal; (2) it would waste precious resources that could be much better used for prevention and community-based services; and (3) it is very likely to produce inhumane results for those it is supposed to help.
These Asylums Would Be and Should Remain Illegal
Legally, fewer—not more—people with mental disabilities should be permitted to be placed in settings in which they are extremely vulnerable to being victimized by coercive civil institutional care and treatment. The U.S. Supreme Court, the Americans with Disabilities Act, and long-established legal principles dictate that coercive institutionalization only be used as a last resort, meaning where less restrictive alternatives would not be reasonable or feasible. The continued failure to provide the necessary funds to provide less restrictive alternatives should not be a legal justification to deprive people with mental disabilities of their constitutional and other legal rights.
Normally lack of funding would not be a proper legal, much less a moral, justification for these types of rights deprivations, unless courts succumb to political pressures or convoluted legal reasoning to find there is no money available to provide humane alternatives. Such a finding, however, would be more difficult to make with any sense of legitimacy, if funds intended for people with severe, chronic mental disabilities were being targeted elsewhere in order to confine them in asylums, coercively. Unfortunately, when respondents with mental disabilities have been tried in quasi-civil, criminal proceedings that involve their fundamental freedoms, too often courts have given their rights short shrift in order to benefit the government’s position. This is a primary reason why so many of the most vulnerable people with mental disabilities have been sent to jails, prisons, and secure detention facilities.
In order to compel involuntary civil care and treatment, especially in institutional settings, which deprive “patients” or “residents” of their fundamental rights, the Constitution as interpreted by the courts, requires that (1) there be a compelling governmental reason for doing so and (2) the means to achieve that objective be implemented in the least constitutionally-intrusive way possible. (For people with disabilities facing coercive institutionalization least intrusive has long been known as the “least restrictive setting.”) The general constitutional principle is clear: long-term, coercive institutionalization is to be avoided, if at all possible.
The potential rub comes in deciding when a compelling governmental interest is required, and what “compelling,” “least restrictive,” and “possible” mean, legally. To date the courts—with certain painful exceptions—have been reasonably protective of due process rights when it involves civil involuntary inpatient and outpatient commitments of adults, who have not been adjudicated as legally incompetent. The legal obstacles for those wishing to do away with these due process safeguards remains high, although not insurmountable, given how the law has been stretched in the past with little substantive justification to favor governments over people with mental disabilities.
For many years, court interpretations about what types of deprivations of rights must be justified by a compelling, rather than a legitimate governmental interest, have been almost unanimous that this higher standard applies to involuntary commitments to a psychiatric hospital or other type of civil institution. The grey areas have involved forms of coercion that may be distinguishable from traditional inpatient involuntary commitments. These potential distinctions have included: circumstances in which patients were coerced into taking powerful prescribed drugs under the threat of possible involuntary commitment; and coercive commitments to settings in small residential facilities. Generally, for the purpose of imposing the compelling interest standard, courts have interpreted both of these civil commitment situations as being largely indistinguishable from involuntary commitments to a hospital or other institution. The decisive factor has been the government’s custodial control of the individual’s basic life choices.
The grey area that has tended to alter this legal definition of involuntary commitment, but inconsistently from jurisdiction to jurisdiction, are third-party commitments by parents or guardians of legally incompetent adults or minors. The minimum constitutional requirements for these types of coercive commitments are different, depending on the age, maturity, and competency of the proposed patients involved. Yet, any of these types of coercive commitments involve substantially less constitutional due process protections than what has been required for involuntary commitments of adults who have not been adjudicated as incompetent.
Reading between the lines, one would anticipate that going forward, were these so-called long-term psychiatric asylums be created and initially licensed, the operators would try first to enroll the least legally-encumbered patients: anyone who is committed by a parent, guardian, or the state as the guardian. Litigation would then likely focus on whether those proposed patients are being coerced and, if so, whether the deprivation of rights can be excused because they would be residing in a setting that might be marginally different from the psychiatric hospitals and other institutions of the past.
If new precedents were to be established, which effectively distinguish these modern asylums from the more traditional civil psychiatric hospitals and institutions, the legal strategy would be obvious. The psychiatric proprietors would attempt to apply these distinctions as justifications for involuntarily confining in these asylums any adults with a severe, chronic mental disability. In doing so, proprietors might even be allowed to dilute the safeguards provided by traditional due process standards. This should never be allowed to happen because the results would be fraught with the potential for the type of legal abuses that have been present so frequently and consistently in the past.
Asylums Would Be a Waste of Precious Resources
From a strictly economic perspective, experience has proven that long-term institutional care—whether civil, quasi-civil, or criminal in nature—tends to be far more expensive than community-based services, no matter who is being “cared for.” It is especially expensive if, as the asylums proposal appears to suggest, treatment services might include for some more than minimal humane custodial care and the administration of powerful mind-altering drugs. Even antipsychotic drugs, however, are becoming increasingly more expensive. This is especially true of the newer editions, which do not seem to be much of an improvement in terms of treatment efficacy, but allow pharmaceuticals to make more money and avoid competition from generic substitutions.
What could be better for drug companies than to have a new “captive audience” to medicate inside cost-conscious psychiatric asylums, with harried staff psychiatrists deciding what drugs should be favored and how much should be given? Dozens of articles have demonstrated how pharmaceutical companies often successfully ply doctors with a variety of economic incentives to prescribe higher dosages of more expensive medications. Furthermore, the studies that promote the supposed relative safety of these drugs are often slanted or even rigged—at the behest of the pharmaceutical companies—by the medical journals and doctors who write, edit, and publish these unscientific articles.
Too frequently near exclusive reliance on mind-numbing drugs to treat severe mental disorders has been counterproductive. It also has been bad medicine. Inappropriate dosages compelled in long-term institutional settings tend to ensure that patients do not improve enough to leave. Over time many—and arguably most—of these patients become significantly worse. If the first order of patient care is “do no harm,” then asylums appear to be a very risky—and arguably irresponsible—choice.
More importantly, from a cost standpoint and the welfare of society, the population of people with severe, chronic mental disorders and developmental disabilities would be substantially less prevalent if prevention was a high priority. Rather than pouring money into long-term coercive institutionalization strategies, it would be far more cost effective and humane to substantially increase public funding for early detection, prevention, and treatment. Unfortunately, in America’s socio-political math, programs that demonstrate future benefits typically are discounted or dismissed based on the number of years in the future the benefits will be realized.
This calculus is a major reason why we no longer have a publicly-funded space program of any consequence, our infrastructure is in near-shambles, public education and even the health of the planet are in jeopardy, and public health prevention programs receive so little funding. For politicians, the tangible economic and electoral benefits of supporting the current interests of the pharmaceutical companies, the AMA, and American Psychiatric Association (APA), rather than the future interests of people who will develop or be born with severe mental disabilities, have become overwhelming.
Asylums Are Very Likely To Be Inhumane
Has there ever been a period in modern United States history when large scale, long-term institutional care has been advantageous and humane for a large group of Americans with disabilities who are being subjected to such care? One may be able to cite individual pilot programs in institutional settings that have worked relatively well for short periods of time because they had sufficient funding while they were being tested for broader use, but even those examples are relatively scarce. The primary reason for this scarcity is simple: large scale coercive institutionalization has proven to be inhumane for a vast majority of patients. By the early 1950’s Mary Switzer and other scholars and policymakers realized that community-based alternatives were the only reasonable care and treatment options, which Goffman’s classic works later confirmed. The evidence was persuasive enough to convince what was then a very conservative American Bar Association that the laws authorizing coercive institutional care for persons with mental disabilities had to be replaced.
Tragically, deinstitutionalization proved to be a failure for most of the people with mental disabilities who could have benefitted from this legally-mandated policy. The problem with its implementation had little to do with the basic concept, but everything to do with a failure to properly fund the community-based alternatives that were supposed to replace institutional care. Due in large measure to the concerted efforts of the AMA, APA, and fiscal conservatives in opposing public funding of community care by insisting that the available public funds remain in the institutions, deinstitutionalization never was given a meaningful chance to succeed on a comprehensive basis.
The shameful truth is that the United States has never been substantially committed to properly caring for and treating persons with severe, chronic mental disabilities. Every comprehensive national program—or the absence of such programming—has led to widespread institutionalization in inhumane circumstances. In the 1950’s and 60’s the default solution was civil detention facilities, which were mostly large, isolated state institutions in which humane care and treatment was scarce and abuses very common. More recently various types of correctional detention facilities have been the default solution, most prominently prisons and jails. Now it is being proposed that once again we coercively detain people with severe, chronic mental disabilities in civil institutions that will be rebranded by calling them psychiatric asylums.
Few individuals in our society would chose institutionalization over being cared for in their homes or communities. Most people want to remain in their homes for as long as possible. This would happen even more frequently if the resources being spent to institutionalize them were used to provide humane care and treatment in the community, which they or their representative could choose. Even homeless people refuse institutional care, but seem to do pretty well—or at least better—when they are given housing and essential services in their communities, which is far cheaper to provide than institutionalization.
The supposedly humane counterargument has been that most of these individuals do not know what is best for themselves because they are acting irrationally or as part of some delusion. Yet, why is it that almost all people with severe mental disabilities, over so many years, have acted in the same manner, wanting at almost any cost to avoid long-term institutional care? Are their concerns a mass, cult-like delusion? Or do they have a justified—and ultimately rational—belief and fear, based on many decades of experience in this country by people similar to themselves, that publicly-funded mental health care and treatment provided in long-term institutional settings has proved to be coercive, abusive, inhumane, and/or nonexistent?