European Association of Psychoanalysis
"Idiots, Infants, and the Insane": Mental Illness and Legal Incompetence
Contemporary medicine and law define mental illness as an “illness like any other illness.” However, the person diagnosed as mentally ill (and dangerous to himself or others) is deprived of liberty, a procedure called “civil commitment” in the U.S., and “sectioning” in the U.K.
Black’s Law Dictionary defines incompetence as the “legal status of a person who is unable or unfitted to manage his own affairs ... and for whom, therefore, a committee may be appointed.” It is the function of the court (judge) to appoint a legal guardian for the incompetent person; such a guardian has clearly defined fiduciary duties to protect the best interests of his ward.
In principle, the mental patent is considered competent (until proven incompetent). In practice, he is regularly treated as if he were incompetent and the psychiatrist who asserts that he needs treatment is treated as if he were the patient’s guardian. This conflation of mental illness and legal incompetence, and the concomitant transformation of the mental patient in the community into the (potential or actual) ward of his psychiatrist is a relatively recent phenomenon.
In the early 1940s, when I was a medical student in Cincinnati, Ohio, there were no voluntary patients in state mental hospitals, just as there were no voluntary inmates in a state prison. Individuals incarcerated in state mental hospitals were certified as legally incompetent and the courts appointed guardians for them, usually their next of kin. Prior to World War II, the hospital psychiatrist never served as his involuntary patient’s guardian.
In the aftermath of that war, social attitudes toward mental hospitalization began to change. Journalists compared state mental hospitals to Nazi concentration camps and called them “snake pits.” Erving Goffman’s book, Asylums, and my book, The Myth of Mental Illness, challenged the moral and legal legitimacy of psychiatric coercions, epitomized by involuntary confinement in a mental hospital. Presidents of the American Psychiatric Association and editors of psychiatric journals acknowledged the problem of chronic mental patients becoming “institutionalized.”
At this critical moment, the psychiatrist’s drugs ex machina -- like the Roman dramatist’s dei ex machina -- appeared and saved the profession. Politicians and the public quickly accepted the doctrinaire psychiatric claim that mental illnesses are brain diseases (“chemical imbalances”), and that neuroleptic drugs are effective treatments for them. Allied with politicians, psychiatrists used the complementary fictions of “chemical imbalance” and “neuroleptic drug treatment” as the peg on which to hang the complexly motivated program of emptying the state mental hospitals, misleadingly called “deinstitutionalization.” In short, the three events characteristic of modern psychiatry -- the development of psychiatric drugs, deinstitutionalization, and the conflation of mental illness and legal incompetence -- occurred in tandem, each facilitating and supporting the others.
Actually, today more people than ever are being committed to mental hospitals, and the treatment of mental diseases is just as unsuccessful as it was in the past. Nor did deinstitutionalization liberate mental patients. Some mental hospitals inmates were transinstitutionalized, rehoused in parapsychiatric facilities, such as group homes and nursing homes. Others were imprisoned for offenses they were prone to commit, transforming jails into the nation’s largest mental hospitals. Still others became “street persons,” living off their Social Security Disability benefits. Most idle, indigent, unwanted persons continue to be incarcerated in mental hospitals -- intermittently, committed several times a year, instead of once for decades. That is not all: The powers of courts and mental health professionals were vastly expanded. Before World War II, psychiatrists could control and forcibly “treat” only persons housed in mental hospitals. Today, armed with “outpatient commitment” laws, they can control and forcibly “treat” persons living in the community.
Medical practices rest on consent. Psychiatric practices rest on coercion, actual or potential. It is the duty and power to coerce the mental patient -- to protect him from himself and to protect society from the patient -- that has always set, and continues to set, psychiatrists apart from other medical practitioners. Nevertheless, the conflation of mental illness and legal incompetence -- defined and described as “protection of the patient’s best interest” or even as “protection of the patient’s right to autonomy” -- is widely regarded as an important advance in medical and psychiatric ethics.
Mental Illness Is Not Synonymous With Legal Incompetence
In the days of asylum psychiatry, the connection between mental illness and legal incompetence was unambiguous. If a person was mad enough to merit confinement in an madhouse, then he was manifestly incompetent. Whereas if he was competent, then he was manifestly not a fit subject for incarceration in an insane asylum. To this day, a history of psychiatric commitment remains the most incontrovertible evidence that the subject “has a mental illness.”
After World War II, psychoanalysis and psychotherapy achieved sudden popularity. A new class of mental patients thus came into being: like medical patients, these persons sought psychiatric help, paid for the services they received, and were regarded as legally competent. This development greatly enlarged the number of persons classified as mentally ill, contributed to the false belief that legal competence is a psychiatric issue, and confused legal relations between psychiatrist and mental patient. The confusion was compounded by the introduction of neuroleptic drugs into psychiatry and the exchange of doubt about the therapeutic benefits of long-term mental hospitalization with confidence in the therapeutic effectiveness of outpatient chemotherapy for mental illness. The result is that psychiatrists sometimes view mental patients as competent, sometimes as incompetent. Neither party can be certain of the law’s expectations of him.
Just as there is no objective test for mental illness, there is none for competence. How, then, do psychiatrists know when a mental patient is competent and when he is not? They never know it. Legal competence is not an attribute, it is an attribution. As a general rule, the patient who behaves properly and cooperates with the psychiatrist is considered competent, and the patient who misbehaves and refuses to cooperate with the psychiatrist is considered incompetent. These novel legal presumptions have novel psychiatric consequences. For example, if the patient kills himself or someone else, then, ex post facto, he is considered incompetent and his psychiatrist’s treatment of him is judged to be “medically negligent.” Viewed as the patient’s guardian, the psychiatrist is considered to have failed to fulfill his “duty to protect” his ward.
The confusion of mental illness and legal incompetence entangles both patients and psychiatrists in many Alice-in-Wonderlandish encounters, as the following example illustrates. On December 7, 1981, a man named Darrell Burch was found wandering along a Florida highway, appearing to be disoriented. Taken to Apalachee Mental Health Services (ACMHS) in Tallahassee, his evaluation form stated that, “upon arrival at ACMHS, Burch was hallucinating, confused, and psychotic and believed he was ‘in heaven.’” Burch was asked to sign forms giving his consent to admission and treatment and did so. Diagnosed as suffering from paranoid schizophrenia, he was given psychotropic medication.
Subsequently, Burch was transferred to the Florida State Hospital (FSH) in Chattahoochee. Again, he was asked to sign, and signed, forms giving consent to hospitalization and treatment. A staff physician named Zinermon, “wrote a progress note indicating that Burch was refusing to cooperate and would not answer questions." Burch remained at the FSH, as a "voluntary" patient, for five months.
After Burch was released, he sued Zinermon and 10 other staff members of the FSH for having deprived him of liberty without due process of law, because he was mentally incompetent to consent to hospitalization and treatment. The case was appealed all the way to the United States Supreme Court, which ruled that when Burch was admitted to the FSH, he was incompetent and hence had a “constitutionally-protected right to a court hearing to determine whether he should be committed and treated as an involuntary patient.”
I don’t know why the Justices of the Supreme Court decided to hear this case. Perhaps it was because they wished to reaffirm the classic, Kraepelinian principle that only truly “crazy” persons ought to be hospitalized involuntary, because only such persons can be presumed to be incompetent. The court declared:
[T]he very nature of mental illness makes it foreseeable that a person needing mental health care will be unable to understand any proffered "explanation and disclosure of the subject matter" of the forms that the person is asked to sign, and will be unable "to make a knowing and willing decision" whether to consent to admission. ... The characteristics of mental illness thus create special problems regarding informed consent. Even if the State usually might be justified in taking at face value a person's request for admission to a hospital for medical treatment, it may not be justified in doing so, without further inquiry, as to a mentally ill person's request for admission and treatment at a mental hospital.
Not surprisingly, the Court's ruling upset the psychiatric establishment. Bruce J. Winick -- a professor of law at the University of Miami and a zealous advocate of psychiatric coercions -- complained that "the Court's language could have unintended antitherapeutic consequences." This cliche assumes that the purpose of depriving insane persons of liberty is therapy which -- in view of the dangerousness clause in commitment laws, combined with the proven ineffectiveness of psychiatric treatment to prevent future “harm to self and others” -- is patently false.
Dispositive Terms Decree, Don’t Describe
In every walk of life -- ordinary human relations, medical practice, legal proceedings -- we make certain presumptions about other people. Doing so is necessary for conducting human relations with individuals we do not know. For example, the automobile dealer must presume that his customer is legally competent and responsible for his purchase. The physician whose patient complains of blood in his stool must presume that the patient has a disease. The Anglo-American legal system must presume that a person accused of a crime is innocent until proven guilty, and competent until proven incompetent.
We are proud of our criminal justice system, because it protects the accused from the power of the state -- a power we distrust because its avowed aim is to harm the individual. We are also proud of our mental health system, because it protects the mentally ill person from the dangers he poses to himself and others, a power we trust because its avowed aim is to help the individual.
However, difficulties arise once the power of the state to “help” goes beyond offering services (including money) and, instead, makes use of coercion. The justification for psychiatric coercion is further weakened by resting the requirement for commitment on “mental illness” and “dangerousness.” There are no objective criteria for either mental illness or dangerousness. Eo ipso, psychiatric determinations and declarations of their presence or absence are necessarily oracular and rhetorical. Nevertheless, they fulfill a very important function: they instruct the listener to assume a desired attitude towards the “patient.” The distinction between descriptive and dispositive terms is crucial for understanding this conundrum.
Characterizing a door as brown or white is descriptive. Characterizing it as needing to be opened or closed is dispositive. Descriptive characterizations can be proven or disproven. Dispositive characterizations cannot be proven or disproven; they can only be agreed with and obeyed, or disagreed with and defied.
The differences between the situation of the person accused of a crime and the situation of the person accused of mental illness are again illuminating. The defendant has a right to deny his crime and disagree with his accusers. His insistence on his innocence is not interpreted as evidence of guilt. The person diagnosed with a mental illness loses this right. The mental patient who disagrees with the psychiatrist is “diagnosed” as “lacking insight into his illness.” His insistence on his sanity is interpreted as evidence of his insanity.
Psychiatrists use the term “competent” as if they were identifying a “mental condition” in the designated person. That is why courts request the psychiatrist to examine defendants for competence, as if hey were looking for and detecting certain facts. However, psychiatric “findings,” especially in a forensic setting, are not facts but recommendations for a course of action toward the defendant.
Ironically, it is precisely because the American system of criminal justice is so intensely concerned with protecting innocent persons from punishment that it is especially vulnerable to corruption by excuses couched in terms of psychiatric disabilities and coercions justified as psychiatric treatments. The root of the problem lies largely in the concepts of mental illness and dangerousness, and partly in the doctrine of mens rea.
Mental illness and dangerousness are vague categories, lacking objectively verifiable criteria. Each “diagnosis” is seemingly supported by the other, and both are easily abused. The following quasi-advice from the web site of the National Alliance for the Mentally Ill (NAMI) is illustrative:
Sometime, during the course of your loved one's illness, you may need the police. By preparing now, before you need help, you can make the day you need help go much more smoothly. ... It is often difficult to get 911 to respond to your calls if you need someone to come & take your MI [mentally ill] relation to a hospital emergency room (ER). They may not believe that you really need help. And if they do send the police, the police are often reluctant to take someone for involuntary commitment. That is because cops are concerned about liability. ... When calling 911, the best way to get quick action is to say, "Violent EDP," or "Suicidal EDP." EDP stands for Emotionally Disturbed Person. This shows the operator that you know what you're talking about. Describe the danger very specifically. "He's a danger to himself " is not as good as "This morning my son said he was going to jump off the roof." ... Also, give past history of violence. This is especially important if the person is not acting up. ... When the police come, they need compelling evidence that the person is a danger to self or others before they can involuntarily take him or her to the ER for evaluation. ... While AMI / FAMI is not suggesting you do this, the fact is that some families have learned to “turn over the furniture” before calling the police.
Giving false information to the police is a crime -- unless it is in the cause of “mental health.” The supreme value of psychiatric treatment trumps the mandate of Eighth Commandment, “Thou shalt not bear false witness.”
NAMI is a mental health advocacy organization that identifies itself as representing “more than 200,000 families, consumers and providers across the country.” NAMI represents the interests of mental patients the same way that the Ku Klux Klan represented the interests of black Americans.
The legal doctrine of mens rea, which holds that unlawful behavior constitutes a crime only if it is committed by an actor who possesses a "guilty mind," also contributes to stripping the person incriminated as mentally ill of his rights. Centuries ago, “raving lunatics” who committed serious crimes were regarded as “wild beasts,” lacking mens rea. That is why "infants, idiots, and the insane" -- in John Locke's famous phrase, repeated unchanged ever since -- are not prosecuted or punished by the criminal law, but are instead restrained, as minors and as mad, by family courts and mental health laws.
Treating mentally ill persons as if they were like children fails to take into account the many obvious differences between them. Minority is an objectively defined (chronological) condition and a legal status. Mental illness is neither. Children are, by definition, under tutelage. Few mental patients are under tutelage and those that are, are in that status not because they are mentally ill but because they are declared to be legally incompetent.
Persons called “mental patients” are adults, not children. They are entitled to liberty and be held responsible for their crimes. I maintain that “mental illness” is not something the patient has, it is something he is. The modern psychiatrist is likely to view Lady Macbeth as insane, the victim of manic-depressive psychosis, an illness that renders her not responsible for her crimes. Shakespeare viewed her as "Not so sick ... as troubled with thick-coming fancies," for which she needs “the divine [the minister, rather] than the physician."
The very survival of psychiatry as a medical specialty depends on postulating and perceiving “mental illness” as a disease -- an entity “outside” and separate from the patient as a moral agent, in the sense that, say, melanoma is “outside” and separate from the patient as a moral agent.
In an interesting recent paper, John Z. Sadder and Bill Fulford struggle with this issue and arrive at what seems to me an absurd conclusion. They propose that, in formulating criteria for psychiatric diagnoses (but not for medical diagnoses), psychiatrists include the opinions of mental patients. They write: “Why should psychiatry involve patients in diagnosis? A key part of psychiatric treatment, rehabilitation, and recovery is helping the patient to distinguish between the features of illness ands the features of the self -- to move patients from battling themselves to battling their disorders.”
A hundred years ago, psychiatric nosology was the province of the neuropathologists: by definition, mental diseases were brain diseases, identified at autopsy, demonstrated by histopathological evidence. The purpose of a diagnosis -- medical and psychiatric alike -- was to convey scientific information. Since then, without anyone quite realizing it, neuropathological diagnostic criteria (paresis) were replaced by psychopathological diagnostic criteria (panic disorder). At the same time, the aims of making a psychopathological diagnosis have expanded and now encompass a vast number of complex economic, political, social and other non-scientific ends.
Regarding Sadder and Fulford’s therapeutic aim of “mov[ing] patients from battling themselves to battling their disorders,” it is necessary to note that everyone harbors contradictory desires and, in that metaphorical sense, may said to be battling himself. Psychiatrists dwell on and exploit the metaphor of “battle within,” while they avert their gaze from and explain away the bitter reality of the “battle without” -- the battle between the involuntary mental patient and “his” psychiatrist. That embarrassing spectacle is our profession’s “elephant in the room.” The need to pretend that it is not there is the most important unwritten rule of psychiatric etiquette.
On Psychiatric “Reform”
The use of certain psychiatric coercions -- such as beatings, cold showers, and mechanical straitjackets -- are no longer fashionable. However, changes in mental health policy have failed to increase the mental patients' responsibility to care for himself and be legally answerable for his criminal conduct. On the contrary, more people than ever are now defined as mental patients and are treated paternalistically, without their consent, as if they were incompetent. Moreover, the practice of commitment, formerly confined to the mental hospital, has metastasized: outpatient commitment has turned all of society into a kind of mental hospital.
We cannot make progress in mental health care policy until we agree on what we mean by progress. Psychiatrists and politicians mean making more and better mental health services available to more and more people. I consider this not progress, but a plan to turn more people into “consumers of mental heath services.”
There can be only one humane goal for mental health care policy, namely, reducing and ultimately eliminating the number of persons in the population treated as mentally ill. This goal will remain unattainable as long as we cling to the notion that “mental illness” is a disease that the patient “has.”
1. Black H C., Black's law dictionary. St. Paul: West, 1968, p. 906.
2. N.Y. Keeps Forced Mental Health Treatment. New York Times, February 17, 2004.
3. Goffman E. Asylums: essays on the social situation of mental patients and other inmates. Garden City, N. Y.: Doubleday Anchor, 1961.
4. Szasz T. The myth of mental illness: foundations of a theory of personal conduct. New York: Hoeber-Harper, 1961.
5. Szasz T. Cruel compassion: the psychiatric control of society's unwanted. New York: Wiley, 1994.
6. Kmietowicz, Z., Admissions to hospital under the Mental Health Act rise by 30% over 10 years, British Medical Journal, 2004; 328: 854.
7. Zinermon v. Burch, 494 U.S. 113 (1990), p. 118.
8. Ibid., p. 119.
9. Ibid., p. 121.
10. Ibid., p. 133, emphasis added.
11. Winick B J. Voluntary hospitalization after Zinermon v. Burch,
Psychiatric Annals, 1991; 21: 584-589; p. 584, emphasis added.
12. Szasz T. Psychiatry and the control of dangerousness: on the apotropaic function of the term "mental illness". Journal of Medical Ethics, 2003; 29: 227-230.
13. Jaffe D J. How to prepare for an emergency," (2000) http://www.nami.org/about/naminyc/coping/911.html, emphasis added.
14. Macbeth, Act V, Scene III, lines 39-42.
15. Szasz T. Insanity: the idea and its consequences. New York: Wiley, 1987.
16. Sadder, J C and Fulford B. Should patients and their families contribute to the DSM-V process? Psychiatric Services, 2004; 55: 133-138, emphasis added.
17. Iglehart, J K. The mental health maze and the call for transformation. New England Journal of Medicine, 2004; 350: 507-514.