You are here

McCubbin - Meeting the Needs of the Mentally Ill

"Meeting the Needs of the Mentally Ill"
A Case Study of the "Right to Treatment" as Legal Rights Discourse in the U.S.A.

by Michael McCubbin, Ph.D. and David N. Weisstub, J.D.

The Right to Treatment as an American Constitutional Issue

CONTEXTUAL NARRATIVE

We examine the hisory of one of the earliest bioethics issues in the United States, the "right to treatment", and the changes in how this issue has been framed in recent years.  Right to treatment litigation raised awareness of other "patient rights", including least restraint, informed consent, and right to refuse treatment.   These issues reveal the fundamental importance of patient autonomy as a value underlying the right to treatment.  Despite this, the right to treatment is today at best empty- e.g., court reliance upon "professional judgment" in applying the right-and at worst distorted beyond recognition --e.g., appeals to the "right to treatment" as justifying forced treatment.  Beyond minimally decent care in institutions and routine medical treatment, perfunctory constitutional recognition of the right to treatment has not translated into the right to services, nor into a right to services in the community.  We question the usefulness of legal rights discourse as a means of satisfying user "needs", when such discourse excludes the economic and political dimensions which define and shape rights and especially access to them.   Power is a mediator of rights:  it is not surprising that the right to treatment became an empty right and even turned against its "holders", given that users had little influence in its development and interpretation.  Rights discourse has not succeeded in protecting the autonomy of the most vulnerable users.   The attempt to create a right to treatment, a positive right involving a claim to receiving something from the State, rather than a claim for a limit to the exercise of State ower, has had the perverse effect of masking the more fundamental right to liberty, upon which the right to treatment finds its most convincing constitutional basis.  It is in the right to liberty, based on the widely-shared value of autonomy, where we find the State's obligation to provide the services that could improve the autonomy of involuntary patients and aid their transition to community living.  An enlightened interpretation of the State's parens patriae responsibilities would not only respect but indeed be derived from this most fundamental right.  The parens patriae role ensuing from the right to liberty aims to enhance the personhood of persons unable to participate fully in the polity and society due to reduced competence and capacities, or because of oppression, discrimination and poverty - all of which affect many psychiatric patients.   Hence, the State is obliged to make an effort to make the right to treatment and other "rights" meaningful for those least capable of exercising their rights.

We examine the history of the "right to treatment" in the United States.   Despite the prominence over many years of mental patient rights dealing with informed consent and right to refuse, the right to treatment issue predated them.  Indeed, jurisprudence in the United States over the right to refuse finds its roots in right to treatment litigation, begun by Morton Birnbaum in the 1960s (Birnbaum, 1974).

This litigation arose out of the fact that thousands of persons in the United States were maintained for long periods of time in immense asylums, with less than acceptable conditions of accommodation, sanitation and nutrition and little or no care (Treffert, 1970). Typical early cases showed less than one physician per 500 to 900 residents — in one case the patient-staff ratio was 5000 to one (Schwitzgebel, 1973).   Despite the asylums calling themselves hospitals, such ratios were often less than that enjoyed by citizens surrounding the institutions, and even less than that of the infamous Sing-Sing prison of New York (Birnbaum, 1969).  In these conditions, the expression "warehousing of patients" took on a very real sense.

However, a typical defense of the institutions was that such warehousing was a form of therapy in itself: called "milieu therapy" (Birnbaum, 1969).  Use of such language to provide a very different meaning within professional frames of eference than of the very same object within lay or patient frames of reference is a phenomenon which sociologists of psychiatry have frequently pointed to as a very salient characteristic of mental health systems over history.

Our paper describes what happened in the courts and their constitutional implications, which I don' t have time to go into here.  To sum up very roughly, the firmest basis for a right to treatment is "need for treatment" legislation which, if it exists, creates a "promise" for treatment which could be enforced under due process (see Bazelon, 1969).  This doesn't really create a "right" to treatment per se, since it is simply a question of enforcing legislation.  It did, however, open up questioning as to what the State's rationale for involuntary commitment might really be.

This quid pro quo argument was also given a symbolic recognition by the Supreme Court, in O'Connor v. Donaldson (1975), which suggested, perhaps, that mental patients were due something vaguely characterized as "more".   The Supreme Court seemed to have backtracked on the quid pro quo theory, as such, in Youngberg v. Romeo (1982).  That decision took an important step by recognizing that patient liberty interests survived confinement, and that a duty might be imposed upon a state by a federal court on constitutional grounds.  The court greatly qualified these principles, however, by stating that patient liberty interests could be balanced by State interests, and in doing so courts must show deference to the judgment exercised by a qualified professional (unless the judgment substantially departs from professional standards).  The decision recognized the principle of the right to treatment, but required only minimally adequate or reasonable treatment or training to ensure safety and freedom from undue restraint (Seicshnaydre, 1992).

Susan Stefan (1992) believes that the rationale of Youngberg implies "treatment" favouring autonomy:  "Under Youngberg's rationale, the constitutional predicate for the right to treatment is to protect or increase liberty, including liberty from the total restraint of institutionalization" (pp.688-689).  This interpretation moves in the same direction as ours, which looks directly at the parens patriae responsibilities of the State for vulnerable or helpless persons, and which does not view exchange of liberty for treatment as a fair trade as suggested by the quid pro quo argument and as regarded with concern by Stefan.

While an autonomy rationale might be implied by the Youngberg judgment, we share the consensus in the literature that the way in which the Supreme Court has interpreted the "professional judgment" standard has effectively rendered treatment as well as other patient rights unenforceable.  The therapeutic jurisprudence writers have concluded that the decision ignores or distorts published research and is "profoundly antitherapeutic" as it places the emphasis on the dependence of persons viewed as needing treatment — subject to unspecified State interests — rather than upon the empowerment of persons viewed as needing autonomy (Perlin et al., 1995).

Hence experience to date suggests that a right to treatment is hardly revolutionary. The litigation has evinced a perfunctory constitutional nod toward the "right" of committed persons to be maintained at some minimal level of health and well-being, subject to State interests, but if there is also an obligation to provide the kind of treatments and services that would enable the patient to rejoin the community, it has not been made clear by the U.S.Supreme Court (Perlin, 1994)— where courts recognize a right to community treatment it tends to be based on state statute laws (e.g., Arnold v.Arizona, 1989, as described by Petrila, 1992), rather than upon the U.S.Constitution.  The arguments, along with the claims for equal protection before the law, were finally, after years of litigation, sufficient to claim for asylum patients living standards and treatment rights at least equal to those of criminals, being a matter for professionals to decide.  The kinds of standards required are in any event the norm in most States today anyway, for reasons which to a large extent are probably independent of a right to treatment — except, and this is important — insofar as society learned something about the plight of mental patients because of the litigation and the subsequent ink spilt over it (see Wald and Friedman,1978).

It seems reasonable to suggest that right to treatment litigation, or the threat of it, contributed, along with many other factors which I have discussed elsewhere (McCubbin, 1994), to the emptying of those asylums which most operated as warehouses in the 1960s and early 1970s.  Not so much because the standards of care and treatment were set high, but more because they were set at barely minimal levels for human beings, akin to those of prisons — a level which many asylums were nonetheless far from achieving. However, at least in contemporary U.S.A., it is doubtful that a right to treatment could go any further (Perlin,1994).

The right to treatment seems today more significant for laying the groundwork for recognition of mental patients' inherent liberty interests than for improving access to quality care for psychologically distressed persons.  By breaking down the justifications for deprivation of liberty in order to establish a right to treatment, a Pandora's box of ethical and constitutional concerns was opened.  In the development of the right to treatment, therefore, we find that the nature of the existing power relations led patients and their advocates to advance their claims through the court system by using a rights discourse, which has provided unquestionable though limited success.

The Politics of the Right to Treatment

For our purposes, what is especially interesting about the early history of the right to treatment is the observation that this particular issue, which could have been framed as an ethical issue to be dealt with by the professions, or as a policy issue to be dealt with in the political venues, was dealt with instead as a constitutional issue.  It is almost a truism to remark that America is a litigious society.  Frequent recourse to the courts can be seen as a cultural phenomenon, the result of an individualistic zeitgueist which views the State as the guarantor of basic rights and which sets minimal rules of fair play in a profoundly competitive society.   A holistic perspective, however, would recognize that such zeitguiest and ensuing habits will have developed concurrently with a political economy that reduces other options for ensuring fair play and satisfying the public interest.

This is particularly true with respect to classes of persons who are politically weak and even more so when they also are poorly regarded by society.   Recent writers in the mental health policy field, including myself, have debated the relative importance of cultural, economic, legal and technological factors behind the major shifts in western mental health systems since the 1960s.  The fact remains, however, that prior to the first major successes in courts, there had been no venue for discussing issues of duties, responsibilities, or rights affecting mental patients.   Early reforms depended upon the charitable, paternalistic good intentions of non-patients, or upon the public's occasional fits of moral indignation at extreme abuses (see Rochefort, 1997; Rothman, 1980; Simmons, 1990).  However, history has shown in many areas that neither good intentions nor moral indignation are enough to rein in an abusive system, if they are not based on a thorough going respect for the person.   Such a respect has to be anchored in a variety of social institutions that help to concurrently define personhood and provide access to the means of democratic participation.

As David Rothman (1991) had pointed out in a study of the origins of modern bioethics, traditionally in medicine ethical and effective practice was expected to be enforced at a very micro-level: in the ideal, the model of practice was one of an individual physician treating an individual patient or the patient's family, within a community where everyone knows everyone else.  Trust was placed in the physician, but if such trust was clearly abused by the physician, the patient could choose another physician.  Even if there were no other physician to choose, in the ideally small and cohesive community information about poor practice would spread widely and the physician would find it difficult to get away with poor practice for too long.  Finally, the medical profession itself was recognized by law as having a policing function to enforce standards in the few unresolved cases that were bad enough and scandalous enough to be heard by the professional complaint and disciplinary bodies.

Such a model for regulating care can be seen, and was seen by some sympathetic judges after years of litigation, as inapplicable and inadequate for dealing with the issues which arose regarding the lack of care of mental patients.  Besides the fact that the mental patients in the asylums could not take their business elsewhere, nor encourage others to do so, and were unlikely to be permitted to lodge a complaint or were unable or lacking resources to do so, the key issue was not the quality of medical care, when given, but the lack of any care.  Individual psychiatrists could not be blamed for providing little or no care when the asylums failed to hire enough of them.

Hence the problem was not at the microcosmic level of patient-physician, but at a much larger systemic level, starting at the asylum level and reaching up to the level of the states, which were responsible for funding the asylums, regulating standards of care for them, and determining who and under what conditions people should be incarcerated in them.

One might have thought that the psychiatric profession as a whole would recognize that not only were the ethics issues raised over lack of care not the sort that could be settled "at the bedside", so to speak, but that it might indeed be in the interests of the profession to see right to treatment litigation succeed — after all, it might have seemed reasonable to expect that success in the litigation would mean asylums hiring more psychiatrists, and perhaps giving them more of a role in general care and maintenance decisions.

However, in the early years the American Psychiatric Association stayed mute, except for raising concerns about the litigation's possible impacts, as inappropriate interference in the therapeutic context and professional managerial affairs (Council of the American PsychiatricAssociation, 1967).  It would be interesting to analyze closely the roots of such a position, which our article at present does not do. In the 1970s, however, the psychiatrist Alan Stone(1975) took his profession to task for short-sightedness and what he characterized as a "knee-jerk reaction" of the profession which wasn't in the interests of the profession or of patients.  After that it appears that the profession as a whole and some psychiatrists were more sympathetic to the complaints of the litigants.

In terms of the social construction of target populations, an important model of policy instrument choice developed afew years ago by Schneider and Ingram (1993), mental patients are, at best, if they enjoy a positive social construction, a "dependent" group, subject to policy decisions they don't contribute to which are paternalistic and infantilizing, or, at worst, a "deviant" group, for which the favoured policy instruments will be punitive.

An article by McCubbin and Cohen (1996) enumerated a variety of reasons why users of the mental health system lack power at both systemic and personal levels. In the context of that paper, even a sympathetic social construction of mental patients might not be enough for adequately "caring" policies, even from a paternalistic perspective, since those actors with power in mental health policy have interests which often diverge sharply from those of patients.  Hence to some extent it may be moot whether mental patients are classified as deserving dependents or detested deviants.

If this is true, the solution to poor policy in the mental health system might seem to involve changing the rules of the policy game — a sort of macro-system engineering (McCubbin and Cohen, 1999a).  The obvious problem with this is that the people who can change the rules of the game are usually the same who benefit from the current rules.  Nevertheless, the American Constitution and the separation of powers among executive, congress and judiciary can at least give rise to the hope, as it did to those who favoured litigation in the 1960s and 1970s, that a sort of radical surgical intervention, by means of bringing a constitutional case against an asylum for failing to provide adequate care and treatment, could sufficiently alter the system at a sensitive place as to change the nature of the system (see Kaufman, 1979).

In fact, a backdrop to the litigation was a great amount of dispute among advocates over whether constitutional litigation over the right to treatment was the best strategy (Birnbaum, 1974).  The civil rights lawyers who favoured litigation won out, not only because they naturally favour court actions, but also because there were few other advocates of asylum inmates— asylum inmates hardly had a natural constituency, if not for lawyers in the quite rare instances when the money to hire them could be found.   For the reasons I had just discussed, in the American political economy action to set things right, either at the political level by powerful actors, or the policy level by caring experts,might be expected to fail.

Thomas Szasz (1969) was one of those who critiqued the right to treatment strategy, for reasons which we will see were prescient.  Szasz, who by the way is still writing, has always been an uncompromising libertarian, viewing the State's role as the guarantor of freedoms.  Hence for him "rights" must be negative — freedom from something, rather than positive — a claim for something.  His prescience lay in his suggestion that winning a right to treatment will be at best an empty, meaningless right (see McCubbin andCohen, 1999a), or at worst it would eventually be turned against mental patients and used as a justification for coercion.

The "Right" to (Forced) Treatment

Advocates for commitment criteria based only on "need for treatment" have increasingly appealed to the "right to treatment" as a justification for forcing treatment— as witnessed by this oxymoronic title "The dilemma of civil rights versus the right to treatment ..." (Isohanni etal., 1991).  This phraseology seeks its justification in the idea that a patient may be incompetent to refuse a proposed treatment — and even the fact of refusal may be considered a symptom of the illness which needs to be treated (McCubbin and Ronen, 2000).   Under that logic, pursuant to its parens patriae role, the State has an obligation to act in the "best interests" of the patient by forcing treatment.   Interestingly, the issues of forced rights to treatment and the extension into the community of services to which patients have a right converge with respect to patients subjected to the recent development of outpatient treatment orders.

In the paper we argue, on a number of bases, that characterization of forced treatment as a matter of the patient's "right to treatment" is disingenious and completely erroneous.  I won't go into those arguments here; what is more pertinent for the thrust of our analysis is the interesting phenomenon that perceptions of a right —supposedly indicating a freedom from interference or a claim for a good— could have transformed into a justification for coercing the supposed holder of that right.

In the latter sense, if it has any substance, it becomes a right which the holder of neither demands, exercises, nor enforces.  We think that such an enormous perversion of a right which was originally aimed at satisfying claims of the rights holders themselves indicates a serious problem with appealing to the discourse of rights as a means of advancing mental patient interests — all the more so given the extremely limited application of the right to treatment in its original sense.

It is much more common today to hear the "right to treatment" as meaning the right of society to force treatment upon those viewed as needing it than as an actual claim by mental patients themselves.  Our paper explores the reasons for that, by examining what a "rights discourse" means for mental patients in contemporary cultural, economic, legal, and political contexts.  We argue that even a "successful" — popular — rights discourse is liable to have little more than symbolic value for the "holders" of those rights, when the holders have little influence in problem definitions that give rise to their expression, little influence in the way claims are framed (as rights or otherwise), and, especially, little influence in how they are to be enforced (see also McCubbin, 2000).

Mental Patients as a Disempowered Group:
Ethics, Rights and Realities

The fact that virtually the entire discussion of the "right to treatment" throughout its history — until it became, in popular discourse, the right to force treatment — revolved around interpretations of constitutional legal rights, with virtually no attention to the issue as an ethical issue, per se, or as a political issue, is understandable when we realize that marginalized groups in general, but particularly severely distressed individuals, enjoy relatively little influence upon the general public or the executive and legislative branches of governments which are politically responsible to them (McCubbinand Cohen, 1996).  This was recognized in the Americans with Disabilities Act by the U.S. Congress, describing disabled persons as a "discrete and insular minority ...subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness" (quotation from Perlin, 1994, p. 203).

Isolation. Half a century ago Weihofen and Guttmacher suggested that most people believe that insanity could never happen to them (cited in Birnbaum, 1960, in the first published call for a right to treatment).  That would suggest that the plight of mental patients would not be a concern for a social contract aimed at justice under the Rawlsian concept (Rawls, 1971), and helps explain Aviram's observation that "the issue that concerns society and draws public attention and moves governments into action, is not treatment versus liberty, but social control versus deviant behavior" (1990, p. 175).

These quotes point to how embedded in society and in its political economy understandings of vulnerable people and applications of their rights will inevitably be (see Dallaire et al., 2000).  We find a paradox with respect to individually based "rights" in liberal capitalist countries, when those rights are designed to protect vulnerable persons who because of their vulnerability — and contributing to it — are systematically oppressed, detested, ignored, or otherwise marginalized to the edges of the mainstream.  Can the persons most in need of rights protections actually obtain and benefit from them?  The paradox of rights to protect the vulnerable being enjoyed more by the less vulnerable than the very vulnerable is illustrated by the irony that many of the patients litigating for the right to treatment seemed less to require "treatment" than community services, and probably should not have been institutionalized in any event (see Albee, 1968), while those who most needed treatment and psychosocial services in order to be able to live autonomously were also those least likely to succeed in marshaling the resources and cooperation necessary to litigate.

Indeed, it is interesting to note that the watershed right to treatment case, Wyatt v. Stickney (1971), was brought not by patients, but by laid-off asylum employees (Schwitzgebel, 1973).  In polities which provide benefits passively through the balancing of competing rights and claims, the rights that are given substance for powerless groups are likely to be contingent upon the convergence of interests with those who have power. To the extent that meanings and operationalizations of rights are controlled by those powerful groups, they may be symbolic (McCubbin and Cohen, 1999b), or even perverse, as the mutation of the right to treatment into the right to forced treatment well demonstrates.

Rights in the Community Context. Indicative of a growing "communitarian" critique of rights discourse, Seicshnaydre suggested that "rights analysis emphasizes individuality and autonomy and fails to recognize social relations and responsibilities between groups"(1992, p. 1997; see Loewy and Loewy, 1999).  Such recognition would imply the realization that not only do individuals and groups have differences with respect to needs, but that they also have differences in terms of capacities — the most crucial being their capacity to seek and enjoy that which is due them by right.  We share, therefore, Seicshnaydre's conclusion that while a rights approach cannot be blamed for the slow progress of the establishment of community care, relations involving power and responsibility also have to be evaluated (Cohen, 1997; Winkel and McCubbin, 2000).

Power as a Mediator of Rights. Whether legal rights grow from or are justified as communal moral values,or whether they can be seen as the result of a rational or negotiated social contract (Locke, 1963; Rousseau, 1992), it is clear that a rights discourse alone will not resolve most real-world situations. Individual and group values enter into the equation not only as sources of legal rights but also as mediators of those rights (Bell, 1996).  Power then becomes important, not only for advancing individual desires but also for disseminating or enforcing beliefs respecting ethical values, whether or not they underlie legally protected rights.  Furthermore, even if for everyone legal rights were to be synonymous with moral rights, there would still be the question of what weights different groups and individuals place upon them when they conflict (see Ubel and Loewenstein, 1996).

Therefore, given the ever present importance of the role of power, and the fact that values are built upon both the more narrowly circumscribed desires and interests as well as more "humanistic" concerns — which we will consider here to be the subject-matter of "ethics" — implies a two-pronged concern for the application of ethics.  That is, that ethical concerns enter not only with respect to the relative merits of the competing values, but also with respect to the nature of the process that weighs those competing values.  Ethics is concerned not only with "good" results but also with "good" means (seeWear, 1993) — indeed, many would assert that good or bad results, in themselves, have nothing to do with moral value (see Medema, 1993).

U.S. courts have been most receptive to right to treatment litigation on behalf of institutionalized mental patients when professionals themselves have recommended treatments or services that the state or institutions have not implemented (Seichsnaydre, 1992).  Given the highly unequal nature of patient versus professional power, and the carefully phrased way in which the Supreme Court has interpreted and applied patient rights, one might question the degree to which patient rights "victories" are instead shaky partnerships which fall short of providing fundamental constitutional protections for the patients.  Does the espoused "right" bear an unambiguous relationship to fundamental widely shared ethical values, or has its application resulted from a conjunction of specific circumstances contingent to a distribution of power by which the basic interests of patients may remain largely unprotected unless they happen to coincide with the interests of others?

In other words, to the extent that patients succeeded in achieving a right to treatment in the original sense, was this a "good"result that luckily arose despite a deontologically "bad" process?  To what extent does recognition of the right become moot if power relations prevent its enjoyment in the sense intended, or if it becomes empty because the system adjusts to it by altering the conditions under which it arises?

Identity Politics. There has been such an explosion of "rights" in recent years that there is a growing danger that the more politically powerful actors will be able to achieve dominance for their favoured rights, however trivial, over the claims of disfavoured groups based on values which are more fundamental. In this era of "identity politics" there is a risk of falling into relativism (e.g., Rosenau, 1994), where so many claims are justified by the act of having been put forward, that there is no longer room for societal reflection over the basic ethical values that should balance them (see Feher, 1996; Glendon, 1991).  Hence social choice is reduced to a game in which moral discourse becomes a cynical exercise known to be pretense by all players, since the winners are accepted to have the most resources and better strategies.

Delving Beneath the Discourse: Trying to Make Rights Real

The history of the right to treatment shows not only how patients can be coopted while achieving this right, but also how asserting one right can facilitate the development of others (Rachlin, 1988).  The concept of "right to treatment" served a useful purpose in a social context in which society was not ready to delve directly into the contradiction between the need for help of vulnerable persons and the autonomy interests of those same persons.  An enlightened conception of parenspatriae helps to untangle this thorny thicket: the State's obligation to "help" patients means to aid them in their own empowerment: to facilitate the development of their own powers (see Rosenthal and Rubenstein, 1993).

Understood this way, the "right to treatment" becomes consequential to the already well-established human right of autonomy (see McCubbin and Weisstub, 1998).  Yet in recent years discussion of the "right to treatment" has been dominated by a profoundly paternalistic discourse concerned with mandatory treatment. Whether or not one shares the arguments for forced treatment(see McCubbin and Cohen, 2000), it is profoundly dehumanizing to those who receive such treatments to characterize interventions designed by others to be for the good of the patient, as, rather, responding to that patient's "rights".  Such banalization of the meaning of rights can only augment growing societal cynicism about our ability to create the good society, which is tainting efforts to incorporate ethical principles into public policies (see Prilleltensky, 1989, 1996).

Especially at the present historical juncture, where pursuit in the courts of constitutional rights has gone a long way but has made little further progress over the past 15 years, at both the policy and service levels it is probably less pertinent to discuss which rights to paternalistically "give" patients than to reconstruct the policy and political playing fields to allow users themselves the means to assert their rights (McCubbin and Cohen, 1996).  Under the social construction of target populations typology, this would mean moving toward a system where users are favoured groups, able to participate in the polity in order to advance their own interests, rather than as, at best, patients inevitably subjected to paternalistic, disempowering interventions — reproducing for the patient feelings of helplessness and powerlessness which may have themselves contributed in a major way to their distress (McCubbin and Dalgard, 2000) — or, at worst, as deviants where ostensibly well-meaning interventions imposed on them serve essentially to control or punish rather than to help (see Dallaire et al., 2000; Scheff, 1999).

The distortion of the right to treatment reflects a confusion so deeply embedded within the mental health system, and within shared social representations regarding "mental illness", that it is arguable that this confusion itself crystalizes the underlying finalités —actual processes and outcomes — of the mental health system: the inability or refusal to differentiate care from control, protection from coercion, and the interests of vulnerable persons from the interests of others (see Arrigo, 1992; Farber, 1995; Williams and Arrigo, 2000).  In order to camouflage the actual superimposition of the interests of others over the interests of patients, language like the "right to treatment" has been hijacked to force treatment— while pretending that such is the patient's "right".

This historical example shows poignantly how, if we wish to enhance the dignity and inherent autonomy of vulnerable persons, we must delve beneath the discourse — it will simply not do to remain blinded by the light of high-sounding words.  What we may find if we turn over that discourse is families and helpers faced with heavy burdens and the need for an immediate solution, professionals seeking to augment their prestige via enlarging their role in biomedical practice or health administration — carrying with these roles delegated state powers which they exercise over vulnerable persons, pharmaceutical companies profiting enormously from the coerced or imposed treatments that almost always consist of drugs, governments and insurance companies who prefer the easy short-term solutions of symptom suppression rather than recovery, and a public so afraid of mental illness as they understand it, whether possibly lurking within or seemingly without, that they choose to hide it away — losing the capacity to understand psychological distress while "mental illness" and all the language connected to that term are socially constructed via power and interests.

These social constructions — like a "right to treatment" authorizing coercion of distressed persons — are frequently far removed from the needs and experiential realities of the persons they are presumably focused upon.  It is essential, then, to not only deconstruct these social constructions, but to go beyond them by assessing what is actually happening to mental patients, guided by our fundamental values of justice, autonomy and dignity — and then actually doing something about it that will be real for them, and not merely symbolic.

References

Albee, G. W.(1968). Models, myths, and manpower. Mental Hygiene, 52,168-180.

Arrigo, B.A. (1992). The logic of identity and the politics of justice: Establishing a right to community-based treatment for the institutionalized mentally disabled. New England Journal on Criminal and Civil Confinement, 18, 1-31.

Aviram, U. (1990). Care or convenience? On the medical-bureaucratic model of commitment of the mentally ill. International Journal of Law and Psychiatry, 13, 163-177. P. 175.

Bazelon, D.L. (1969). The right to treatment: The court's role.  Hospital and Community Psychiatry, 20, 129-135.

Bell, N.K. (1996). Responsibilities and rights in the promotion of health: Differing positions of the individual and the State. Social Science and Medicine, 43, 775-782.

Birnbaum, M. (1960). The right to treatment. American Bar Association Journal, 46, 499-505.

Birnbaum, M. (1969). A rationale for the right. In D.S. Burris (Ed.), The Right to Treatment (pp. 77-106). New York: Springer.

Birnbaum, M. (1974). The right to treatment: Some comments on its development. In F.J. Ayd (Ed.), Medical, moral and legal issues in mental health care (pp. 97-141). Baltimore: Williams & Wilkins.

Cohen, C.I. (1997). The political and moral economy of mental health. Psychiatric Services, 48, 768-774.

Council of the American Psychiatric Association (1967). Position statement on the question of adequacy of treatment. American Journal of Psychiatry, 123, 1458-1460.

Dallaire, B., McCubbin, M., Morin, P., & Cohen D. (2000). Civil commitment due to mental illness and dangerousness: The union of law and psychiatry within a treatment-control system. Sociology of Health and Illness, 22, 679-699.

Farber, S.(1995).  Undermining community. Telos, 102, 177-192.

Feher, M. (1996).  Empowerment hazards: Affirmative action, recovery psychology, and identity politics. Representations, 55, 84-91.

Glendon, M.A. (1991). Rights talk: The impoverishment of political discourse.  Toronto: Macmillan.

Isohanni, M., Nieminen, P., Moring, J., PylkkŠnen, K., & Spalding,M. (1991).  The dilemma of civil rights versus the right to treatment: Questionable involuntary admissions to a mental hospital. Acta Psychiatrica Scandinavica, 83, 256-261.

Kaufman, E. (1979). The right to treatment suit as an agent for change. American Journal of Psychiatry, 136, 1428-1432.

Locke, J. (1963). Two treatises of government (rev.ed.).   Scarborough, Ontario: Mentor.

Loewy, E.H., & Loewy, R.S. (1999). Lebensunwertes Leben and the obligation to die.  Does the obligation to die rest on a misunderstanding of community? Health Care Analysis, 7, 23-36.

McCubbin, M. (1994). Deinstitutionalization: The illusion of disillusion. Journal of Mind and Behavior, 15, 35-54.

McCubbin, M. (2000). Sweet words that hurt: The make-believe world of user participation, rights and voice. The Rights Tenet — Quarterly Newsletter of the National Association for Rights Protection and Advocacy (Spring/Summer), pp. 5, 8.

McCubbin, M.,& Cohen, D. (1996). Extremely unbalanced: Interest divergence and power disparities between clients and psychiatry. International Journal of Law and Psychiatry, 19, 1-25.

McCubbin, M., & Cohen, D. (1999a). A systemic and value-based approach to strategic reform of the mental health system. HealthCare Analysis, 7, 57-77.

McCubbin, M., & Cohen, D. (1999b). The rights of users of the mental health system: The tight knot of power, law, and ethics.  Presented to XXIVth International Congress on Law and Mental Health, Toronto.  Available HTTP: http://www.oikos.org/mentalrights.htm

McCubbin, M., & Cohen, D. (2000). Analysis of the scientific grounds for forced treatment. Research paper submitted to Little Hoover Commission on Mental Health Reform, State of California, to the California Legislature, and to the Judiciary Committee, Legislature of the State of Connecticut. Available HTTP: http://www.connix.com/~narpa/cal_ioc.htm

McCubbin,M., & Dalgard, O.S. (2000, May). Social determinants of population health: Power, powerlessness and empowerment as determinants of health and well-being. GRASP Scientific Conferences. Available HTTP: http://www.mailbase.ac.uk/lists/radical-psychology-network/2000-06/0024.htm

McCubbin, M.,& Ronen, Y. (2000). Error under a pure best interests model of proxy decision-making: Implications for the justifiability of forced treatment. Submitted, under revision.

McCubbin, M., & Weisstub, D.N. (1998). Toward a pure best interests model of proxy decision making for incompetent psychiatric patients. International Journal of Law and Psychiatry, 21, 1-30.

Medema, S.G. (1993). Is there life beyond efficiency? Elements of a social law and economics. Review of Social Economy, 51, 138-153.

O'Connor v. Donaldson, 422 U.S. 563, 576(1975).

Perlin, M.L. (1994). Law and the delivery of mental health services in the community. American Journal of Orthopsychiatry, 64, 194-208.

Perlin, M.L., Gould, K.K., & Dorfman, D.A. (1995). Therapeutic jurisprudence and the civil rights of institutionalized mentally disabled persons: Hopeless oxymoron or path to redemption? Psychology, Public Policy, and Law, 1, 80-119.

Petrila, J. (1992). Redefining mental health law: Thoughts on a new agenda. Law and Human Behavior, 16, 89-106.

Prilleltensky, I. (1989). Psychology and the status quo. American Psychologist, 44, 795-802.

Prilleltensky, I. (1996). Human, moral, and political values for an emancipatory psychology. Humanist Psychologist, 24, 307-324.

Rachlin, S. (1988). Litigating a right to treatment: Woe is me. Psychiatric Quarterly, 59, 182-192.

Rawls, J. (1971). A theory of justice. Cambridge, MA: Belknap.

Rochefort, D. (1997). From poorhouses to homelessness: Policy analysis and mental health care (2nd ed.). Westport, CT: Auburn.

Rosenau, P.V. (1994). Health politics meets post-modernism: Its meaning and implications for community health organizing. Journal of Health Politics, Policy and Law, 19, 303-333.

Rosenthal, E., & Rubenstein, L.S. (1993). International human rights advocacy under the "Principles for the Protection of Persons with Mental Illness". International Journal of Law and Psychiatry, 16,257-300.

Rothman, D.J. (1980). Conscience and convenience: The asylum and its alternatives in progressive America. Glenview, IL: Scott, Foresman.

Rothman, D.J. (1991). Strangers at the bedside: A history of how law and bioethics transformed medical decision making. New York: Basic.

Rousseau, J.-J. (1992). Du contrat social [on the social contract]. Paris: Flammarion.

Scheff, T.J. (1999). Being mentally ill: A sociological theory (3rd ed.). New York: de Gruyter

Schneider, A., & Ingram, H. (1993). Social construction of target populations: Implications for politics and policy. American Political Science Review, 87, 334-347.

Schwitzgebel, R. K. (1973). Right to treatment for the mentally disabled: The need for realistic standards and objective criteria. Harvard Civil Rights Law Review, 8, 513-535.

Seicshnaydre, S.E. (1992). Community mental health treatment for the mentally ill: When does less restrictive treatment become a right? Tulane Law Review, 66, 1971-2001.

Simmons, H.G. (1990). Unbalanced: Mental health policy in Ontario, 1930-1989. Toronto: Thompson.

Stefan, S. (1992). Leaving civil rights to the "experts":   From deference to abdication under the professional judgment standard. Yale Law Journal, 102, 639-717.

Stone, A.A. (1975). The right to treatment:  Comments on the law and its impact. American Journal of Psychiatry, 132, 1125-1134.

Szasz, T. S. (1969). The right to health. In D.S. Burris (Ed.), The Right to Treatment (pp. 59-76).  New York: Springer.

Treffert, D.A. (1970). Alternatives to legislating the right to treatment. Hospital and Community Psychiatry, 21, 302-303.

Ubel, P.A., & Loewenstein, G. (1996).Distributing scarce livers: The moral reasoning of the general public. Social Science and Medicine, 42, 1049-1055.

Wald, P.M., & Friedman, P.R. (1978). The politics of mental health advocacy in the United States. International Journal of Law and Psychiatry, 1, 137-152.

Wear, S.(1993). Informed consent: Patient autonomy and physician beneficence within clinical medicine. Boston: Kluwer.

Williams,C.R., & Arrigo, B.A. (2000). The philosophy of the gift and the psychology of advocacy:  Critical reflections on forensic mental health intervention. International Journal for the Semiotics of Law, 13, 1-28.

Winkel, R., & McCubbin, M. (2000, 1 Aug.).  This says it all! Rich Winkel on power and mental health: Nader and forced (violent) psychiatry. Radical Psychology Archives. Available HTTP:http://www.mailbase.ac.uk/lists/radical-psychology-network/2000-08/0004.htm

Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971).

Youngberg v. Romeo, 457 U.S. 307 (1982).


David N. Weisstub is Philippe Pinel Professor of Legal Psychiatry and Biomedical Ethics at the University of Montreal. He is the Honorary Lifetime President of the International Academy of Law and Mental Health, and Founding Editor-in-Chief of the International Journal of Law and Psychiatry.  Prof. Weisstub has given lectures at universities throughout the world and has served as a consultant for mental health law reform in many jurisdictions, including most recently Japan and Ontario, Canada. A published poet, he has edited and published numerous books and articles in legal medicine and bioethics, including most recently in the field of research ethics with a 1998 collection, Research on human subjects: Ethics, law, and social policy (Elsevier, New York), which was also translated into French and published by L'Harmattan (Paris). Professor Weisstub can be contacted by email directed to his attention at: admin@ialmh.org.

Michael McCubbin is a political economist and Research Fellow with the Saskatchewan Population Health and
Evaluation Research Unit (SPHERU), Canada. His research and publications over the past decade have concerned politics, policy and ethics of mental health and the mental health system (e.g., regarding civil commitment) and, more recently, fundamental research into the roles of power, powerlessness and empowerment as determinants of population health and wellbeing.  He published a recent collection on this topic in the Journal of Community and Applied Social Psychology.  In the ethics of mental health care he has collaborated with David Weisstub on the 1998 article "Toward a pure best interests model of proxy decision making for incompetent psychiatric patients" (International Journal of Law and Psychiatry, 21, 1-30).  He is on the editorial boards of the
Canadian Journal of Community Mental Health and Radical Psychology Journal.  Dr. McCubbin can be contacted at michael.mccubbin@uregina.ca .

For further reading see his articles co-authored with David Cohen, including:  

Analysis of the Scientific Grounds for Forced Treatment, research paper submitted to Little Hoover Commission on Mental Health Reform, 2000 (State of California): http://www.connix.com/~narpa/cal_ioc.htm

 

Extremely Unbalanced: Interest Divergence and Power Disparities Between Clients and Psychiatry, International Journal of Law and Psychiatry, 1996, pgs. 1-25.

 

A Systemic and Value-Based Approach to Strategic Reform of the Mental Health System, Health Care Analysis, 1999, pgs. 57-77.

 

Civil Commitment due to Mental Illness and Dangerousness: The Union of Law and Psychiatry within a Treatment-Control System, Sociology of Health and Illness, 2000, pgs. 679-699 (also with Bernadette Dallaire and Paul Morin).