Just yesterday I coauthored a brief opinion piece on the issue of civil commitment and the issue of rights versus treatment (2). My co-author Mark L. Ruffalo had the great idea to initiate our commentary based on a letter from the late Darold A. Treffert, MD who was then the Superintendent of Winnebago State Hospital in Wisconsin. Dr. Treffert was also an expert on autism and savant syndrome. I heard him speak on that topic about 15 years ago at the Door County Summer Institute. His letter (2) was both a statement about the need for legal intervention and a call to action. In the final line, he attempted to solicit negative experiences from other physicians about a civil commitment process that erred on the side of rights rather than recognition of severe problems and treatment and the resulting problems.
Historically this letter came around the time that
antipsychiatry forces were building and one of their main talking points was
that there was no such thing as a mental illness. People simply had “problems in living” and
therefore no medical or legal intervention was necessary. Certainly not a legal intervention that
resulted in the deprivation of civil liberty.
The antipsychiatrists and liberty advocates failed to recognize the
problem of severe mental illness and the associated lack of problem recognition
and impaired decision making. Those
impairments greatly compromise any person’s ability to negotiate the world
safely and take care of their self. The usual examples include suicidal or
aggressive thoughts and behavior. They
can also extend to routine medical care and activities of daily living. As an example – a person with severe mental
illness may no longer see the need to take insulin for diabetes, or blood
pressure medications, or anticonvulsants. That can precipitate a medical emergency
in addition to any existing psychiatric emergency.
In Dr. Treffert’s letter, he mentions that the Wisconsin
Supreme Court set a new commitment standard of “extreme likelihood that if
the person is not confined he will do immediate harm to himself or others.” Imminent likelihood became an
impossible standard in many cases. Even if a patient had attempted suicide or
assaulted someone, at any point during a one or two week court process – they
could make the argument that the imminent danger had resolved – even if they
were refusing treatment and continued to have severely impaired judgment. In
that case what frequently happened was that courts experimented with rapid
dismissals of commitment petitions – until there is a catastrophic
outcome. At that point they become as
cautious as the physicians involved in assessing and treating the patient.
The dangerousness standard for commitment has additional
unintended consequences. It functions as a de facto hospitalization
standard. It is common that managed care companies deny payment for admissions
or even continued stays in the hospital based on the imminent danger
statute even in patients being treated on a voluntary basis. The applicable
standard in this case should be an adequate treatment standard – also a
quality standard. It is highly likely
that any patient admitted after a suicide attempt or episode of severe
aggression will continue to have that problem if they are discharged without
adequate treatment. Adequate psychiatric treatment generally takes much longer
than typical 2-to-3-day crisis hospitalizations. As a de facto standard
in the managed care era, it is also easy to discharge a patient who is
uncooperative with care by documenting the resolution of the imminent crisis
and discharging them rather than working on relationship building and a plan
based on a therapeutic alliance. The adversarial legal standard becomes an
adversarial medical process.
Imminent danger standards also fail to recognize forensic populations, the subgroup of people with severe mental
illness who have a pattern of violent crimes and have a chronic risk of violent
and aggressive behavior. This group of patients often cannot be treated in the
same setting as other patients with severe mental illness, and require treatment
in forensic settings with adequate staffing and protections for both patients
and staff. That segregation can also occur at the community hospital level,
where just a few hospitals have psychiatric units and fewer have units that are
designed to contain aggressive behavior. Aggression and violence in psychiatric
settings is so stigmatized that its existence is commonly denied unless someone
is trying to make a political argument that involves blaming societal violence
on psychiatric patients. Even then there
are counterarguments that it does not exist. I have been advocating the
position that violence and aggression secondary to mental illness are public
health problems that should be addressed at that level for at least 20
years. During that time, I have not seen
a single public service announcement with that message. Instead, the political and legal system continues
to ignore that approach by flooding the country with firearms, closing many if
not most community mental health centers, closing supported housing, and
failing to provide affordable housing.
The response from journalists is not much better – ranging from
overt misinformation about psychiatry and mental illness to the occasional human-interest
story. The people who know the most about the problem – psychiatrists, social
workers, and case managers are left out of the loop in favor of the most
convenient critic. Journalists seem unaware of conflict of interest of many of their recruited experts and do not apply the same standard that they would for a psychiatrist. Journalists and politicians also promote widespread cannabis
use and in some cases legalization of many drugs that all pose serious health risks to psychiatric populations. It
is as if saying that out loud is bad for business and tax revenues.
The humane aspects of involuntary treatment are often turned
on their head in the rights versus treatment debate. Is it more humane to keep persons with mental
illness circulating between short term hospital with minimal to no treatment,
jails, and homelessness because they do not recognize the problems they are
having and fail to come up with solutions, or is it more humane to offer
involuntary treatment? Context is very
important. In my experience, during
involuntary treatment – therapeutic alliances occur as it becomes evident that
the treatment providers are helping the patient survive better. People with
impaired insight and judgment require evidence that they are being helped and
that is generally a turning point in the process. If a person is homeless, the
evidence has to be provided right where they are – on the street. That requires active outreach by treatment
teams. Ideally that can happen before any crisis occurs that may lead to civil commitment
and involuntary treatment. But even if the patient is committed active
intervention to support them outside of institutional settings is
possible. This method of community psychiatry
and community support has been around since it was invented by Len Stein, MD
and Mary Ann Test, MSW in the 1970s. I was fortunate enough to have been
supervised by Dr. Stein during residency and one of the key concepts was “the
money has to follow the patient.” In
other words, the money used to finance extended state hospital stays had to be
used to treat people in the community and provide them with their own housing. This was a model to maintain people disabled
by severe mental illnesses in their own housing. The other elements included active outreach
and 24/7 availability of staff to help them resolve any crises. That basic
model has been around for 50 years and it is rarely implemented and only
recently discussed in mainstream medical journals.
The primary reason we have a problem with both homelessness
and untreated chronic mental illness in the United States is economic. The
managed care model of health care administration showed how easy it was to deny
and ration psychiatric care to make money.
That model was sold based on increased efficiency and cost containment –
but at this point it is obvious that it does neither. It does reroute funds to
pay for a massive increase in the number of administrators at both the private
and public levels. These administrators
are largely focused on enforcing the rationing of care instead of providing
quality care. In fact, the real onset of managed care heralded the total disappearance
of quality metrics in medical care. Quality was no longer monitored by external
agencies. It was internalized in managed
care organizations. The focus went from adequate treatment of a problem to how
quickly a person could be discharged to maintain profitability under an unrealistic
reimbursement system. That approach is a
disaster for acute care psychiatry, community psychiatry, and it makes involuntary
treatment more likely from the resulting chronicity. It has also been a major
frustration for outpatient psychiatrists trying to get hospital access for
their patients in crisis. But the economics are generally swept under the rug
or discussed at a superficial level by the critics.
At the community level, rather than active outreach by
trained mental health staff most communities end up using law enforcement or
other first responders with minimal to no mental health training. In most
communities they are the only staff available on a 24/7 basis and that is also
a funding issue. There are situations where the police do need to be involved
in a mental health crisis, but that is far less common than the need for mental
health intervention.
What are the solutions? I have written about many on this
blog over the years. At the top of my lost today is just moving past the rights
versus treatment debate. It has been a stalemate for 50 years while the
entire system of care has collapsed due to rationing. The rights have been adequately
safeguarded for decades and arguments about abuses before that time are
irrelevant. What do I mean about adequate safeguards? In the state where I worked,
there was a prepetition screener, a prepetition screening team (to discuss the
merits of commitment and whether the patient met statutory requirements), 2
court appointed examiners, a defense attorney, a country attorney, a probate
court judge, and if necessary, a substance use assessor. That is about 7-10 people independent of the
treating staff and any one of who could disagree with the commitment process. I am not aware of any legal process that
provides more safeguards.
On the treatment side, there is a legal concept called least
restrictive treatment. That simply means a treatment setting where the
person is free to come and go as they please rather than being in a facility where
they either can’t leave or have to ask for permission. The goal of the Stein and Test model was to maintain
people in their own apartment – the least restrictive of all. That is a goal
that any functional system should aspire to.
When we hear about the homeless problem only a fraction of those
folks have severe mental illnesses.
Another fraction has substance abuse problems. The obvious solution
is a housing first option that may include social support or in the case of
mental illness case management services with active community psychiatry
outreach. The first step is not transport
to emergency departments and admission to psychiatric units.
Another unmentioned dimension on the treatment side is well
trained and motivated staff. Police officers
do not choose a career in law enforcement because they are interested in communicating
with and treating people with severe mental illnesses. Mental health staff
do. Communication and relationship building
goes a long way toward defusing a crisis and preventing involuntary treatment.
Addressing the dilapidated psychiatric infrastructure is the
final step. The issue of psychiatric beds is a chronic problem with the ongoing
political rhetoric that no more are needed compared with needs analyses based
on bringing the length of stay (LOS) of psychiatric patients in the emergency
department to the same LOS as medical and surgical patients. On that basis –
there are very few places in the US with adequate psychiatric beds.
By far – the single most detrimental factor has been the
managed care model of rationing in health care systems and by the states.
Denying care will always be more cost effective than providing care. It is also a good model for generating profits.
Much of that early profit was made by shifting the cost of effective care for
serious mental illnesses away from subscriber-based health care systems to
state funded systems – at least until the states adopted the model for themselves.
Any serious discussion of the rights versus treatment debate needs to
start at that point. Involuntary treatment and civil commitment will never be a
solution to the problem of homelessness or the revolving door of people with severe
mental illnesses getting inadequate treatment.
I wish that I could end the year on a more positive note but things seem very grim out there. We are still in the midst of a pandemic that has showcased how susceptible the public is to misinformation and political manipulation. I can't help thinking that this has been the state of affairs in psychiatry for the past 50 years and this post is some of that evidence. I am hoping that we can see the rise of some leaders in psychiatry to counter these trends - just as we have seen experts in virology and engineering counter the coronavirus misinformation. But it seems like it will take a lot more than that.
Here is hoping for a better year in 2023 and beyond!
George Dawson, MD, DFAPA
References:
1: Ruffalo ML,
Dawson G. Still Dying With Their Rights
On, 50 Years Later. Psychology Today December
30, 2022 Link
2: Treffert DA.
"Dying with their rights on". Am J Psychiatry. 1973 Sep;130(9):1041.
doi: 10.1176/ajp.130.9.1041. PMID: 4727765.
Photo Credit:
Eduardo Colon, MD with thanks.
Additional Posts Relevant To This Topic:
1: The Problem With Inpatient Units: Link
2: Are There Any Good Jobs Left for Psychiatrists? Link
3: The Bureaucratic Takeover of American Psychiatry: Link
4: There Is No Identity Crisis In Psychiatry Link
5: Holding Tank or Psychiatric Unit? Link
6: Medical Care of the Seriously Mentally Ill - The Way It Should Be Provided Link
7: Governments and Psychiatric Beds Link
8: The New York Times Steers The Mental Health Conversation in the Wrong Direction Link
9: Bedless Psychiatry and Recipe for Remaining Bedless Link
10: The New York Times Article on Why Mental Health Can't Stop Mass Shooters Link
11: My Opinion on Community Mental Health from 1989 Link
12: Minnesota's Abandonment of the Severely Mentally Ill - Nearly Complete Link
13: Treatment setting Mismatches - The Implications Link
14: Why There Are No Bipartisan Solutions to Exorbitant Health Care Costs in the USA Link
15: A Circular Ethical Argument About Psychiatric Services Link
16: The EMTALA Paradox Link June 11, 2017
17: Managed for Mediocrity - Corporate Medicine in the 21st Century Link
18: Remission Before Discharge? An Un-American Concept Link
19: Do Businessmen Dream of Medicine Without Doctors? Link
20: Americans Can't Do Basic Health Care Arithmetic Link
21: The Largest Psychiatric Hospitals in the USA Link
22: Hospitalists... Link
23: A Better Analysis of the Psychiatrist "Shortage" Link
24: Just When You Thought American Healthcare Could Not Get Any Worse Link
25: Newsflash from the StarTribune - Psychiatric Patients Have Nowhere to Go Link
26: Medicine to Psychiatry to Parking Lot: The Evolution of Detox Over the Past 30 years Link
27: Admission, Discharge, and Readmission Policies: No Better Example of Business Driven Pseudoscience Link
28: How To Ruin You Life Without Being Dangerous Link
29: How the Ruling Class Impacts Your Health Care and Why They Need to be Stopped Link
30: Trauma In Psychiatric Hospitalizations Link
