The Rights Versus Treatment Debate

 

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