THE LAW AND THE FUNDAMENTALS OF LIBERTY, THE CONSTITUTION AND MENTAL HEALTH

Courts are playing a greater role in mental health proceedings. Initially the courts stepped in to curb the abuses occurring in the huge mental hospitals in existence before deinstitutionalization.

The U.S. Supreme Court has issued decisions involving: due process for commitment, administration of medication, levels of "clear and convincing" proof, standards for involuntary commitment of children, standards of treatment, and the requirement for informed consent upon admission to a mental health facility.

O'Connor v. Donaldson (U.S. Supreme Court): States, including West Virginia, wrongly interpret Donaldson to require a finding of "dangerousness" before allowing compulsory treatment, such as civil commitment, outpatient commitment, and the use of medications. Donaldson increases the States' police powers and undercuts their parens patriae powers.

Parens patriae power allows the state to act as a parent, i.e., to protect, nurture or care for a person in need.

The holding in Donaldson was ambiguous and obtuse.

    In short, a state cannot constitutionally confine, without more, a nondangerous individual who is capable of surviving safely in freedom by himself, or with the willing help of responsible members or friends.

But the Court also said:

    There is no reason now to decide whether the state may compulsorily confine a nondangerous mentally ill individual for the purposes of treatment.

The dangerousness requirement has several negative effects on the mentally ill. It violates the civil rights of a person to get help. It stigmatizes a person as "dangerous" when all he or she might be is needy. It makes legal proceedings more time-consuming, difficult, expensive and more likely to justify "no need for treatment" because predicting dangerousness is difficult. Waiting until a person is dangerous prevents treatment when it is needed.

RECOMMENDATION ONE: The states should have proper laws for compulsory treatment not only for those who are dangerous to themselves and others (under the police power), but, even more important, for those who are deteriorating due to a lack of insight or incompetence (under the power of parens patriae).

THE HISTORY OF MENTAL ILLNESS

In ancient Greece and Rome, care of the mentally ill was the responsibility of the family.

In the sixteenth century, those considered undesirable (beggars, the mentally ill, the idle, the homeless, etc.) were subject to being confined in a "house of correction." This century is called the period of "the great confinement."

In the 1700's, the French created a "general hospital," to lodge and feed military invalids, the poor and the sick. For the first time, a government assumed responsibility at its own expense for those who could not care for themselves.

The view throughout this time in history was that "madness" was caused by Satan and that the mentally ill were like animals and could not feel pain. Inmates were often crowded together in cells resembling animal cages and placed on display for public viewing.

Not until the eighteenth century were hospitals built specifically for the humane treatment of the mentally ill. At that time, the mentally ill were seen as having no will of their own therefore, liberty was of no particular meaning.

The most significant event in the modern history of the treatment of the mentally ill was deinstitutionalization. However, the promised systems of community care were never developed to provide needed assistance.

Today, we have gone full circle. The mentally ill get less treatment and are considered to be the responsibility of the family.

DUE PROCESS

Although necessary, today's required level of due process is counter productive. The courts have passed generic rules in difficult cases and have made treatment difficult to obtain. For example, seven states, including New York, require full due process hearings for those who have already been involuntarily committed but who refuse psychotropic drugs.

WHERE DO WE GO FROM HERE?

RECOMMENDATION 2: SURROGATE DECISION MAKING PROGRAM

The Surrogate Decision Making Program (SDMC) has been in effect in New York since 1986 and was recently adopted by Maryland. The program employs a quasi-decision making body of volunteers who determine whether a person is competent to make their own medical decisions. The Program works in panels of four "judges"; the panels include a health care professional, a lawyer, and two persons with a special interest in mental hygiene. Volunteers are asked to participate in one session of hearings a month and are paid only mileage and meal costs. All of the formalities of constitutional law are followed. Although the patient may be represented by an attorney, the proceeding is not adversarial. The attorney may act as a guardian ad litem. The right to appeal is very narrow; the appellate court asks only if the panel's procedure was correct and whether there was substantial evidence for the finding.

RECOMMENDATION 3: ADVANCE DIRECTIVES

Similar to a living will, a mentally ill person creates a document that lists the kinds of treatment he or she would want if they become incompetent and cannot make those decisions.