“Most commitments are just rubber-stamped by judges… we only want the same human and civil rights as everyone else. We don’t want to be locked up when we have commit­ted no crime, on the pretext that it is for our own good.  It’s not.  Being deprived of liberty is inherently harmful, never helpful—except for the institutions, the pro­fession­als, the drug companies, and everyone else who profits from locking us up. …  There is no such thing as forced treatment; if it’s forced, it is social control for the benefit of others.”  Linda Andre in her book, Doctors of Deception—What They Don’t Want You to Know About Shock Treatment (Rutgers University Press 2009, pp. 5, 16, 17)

“It was abusive psychiatry in medieval times when doctors of the church exorcised the demons they presumed were causing mental illness through the diagnostic and treatment techniques of torture and drowning. In Soviet times, coercive psychiatry was used to suppress political dissenters by calling them crazy and parking them for long stretches in mental hospitals. China reputedly is running its own ‘psychiatric gulags’ to quiet the vociferous economic complaints of peasants cheated by greedy local party officials.  …  Before heaping what would be completely appropriate condemnation on abusive Chinese practices, we should get our own house in order” in the U.S.A.  Psychiatrist Allen Frances, M.D., former chairman of the Department of Psychiatry at Duke University, and chairperson of the Task Force that created the 4th edition American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV in 1994 & DSM-IV-TR in 2000), in his article “A Clinical Reality Check”, August 12, 2012, Cato Unbound—A Journal of Debate

“Justice for all is a fundamental principle upon which our country was founded.”  Harry M. Reasoner, Chair of the Texas Access to Justice Commission, in an e-mail to supporters on December 9, 2014

In 1992, U.S. Representative Patricia Sch­roeder, chairwoman of the U.S. House of Representatives Select Committee on Children, Youth, and Families, held hearings investigat­ing the practices of psychiatric hospitals in the United States.  Rep. Schroeder summa­rized her committee’s findings as follows:

Our investi­gation has found that thousands of adoles­cents, children, and adults have been hospi­talized for psychiatric treatment they didn’t need; that hospitals hire bounty hunters to kidnap patients with mental health insurance; that patients are kept against their will until their insurance benefits run out; that psychia­trists are being pressured by the hospitals to increase profit; that hospitals “infiltrate” schools by paying kickbacks to school coun­selors who deliver students; that bonuses are paid to hospital employees, including psychi­atrists, for keeping the hospital beds filled; and that military depen­dents are being target­ed for their generous mental health benefits.  I could go on, but you get the picture. [quoted in: Lynn Payer, Disease-Mongers: How Doctors, Drug Com­panies, and Insurers Are Making You Feel Sick, John Wiley & Sons, Inc. 1992, pp. 234-235]

A headline on the front page of the July 6, 1986 Oakland, California Tribune reads: “Adolescents are packing private mental hospitals  But do most of them be­long there?”  Accord­ing to the newspaper article:

…mental patients advocates say many adolescents in private hospitals are not seri­ously mentally ill, but merely rebellious.  By holding the adolescents, who often dislike hospitaliza­tion, advocates say private hospi­tals reap profits and please parents.  … Some county mental health officials and psychiatrists at private hospitals acknowl­edge there are hospitalized adoles­cents who, ideally, shouldn’t be there. … “It distresses me to see kids in these facilities; it distress­es me to see the profits going on,” Jay Mahler, of Patients Rights Advocacy and Training, said two weeks ago at a Concord Public forum.  “It’s a hot business,” Tim Goolsby, a Contra Costa County Probation Depart­ment adoles­cent placement supervisor, later agreed.  “If your kids like sex, drugs, and rock‘ n’roll, that ‘s the place to put them.  I’m not sure insurance companies know what’s going on, but they’re being ripped off.”  Goolsby estimated 80 percent of ado­lescents in Contra Costa private psychiatric hospitals are not mentally ill… University of Southern Cali­fornia sociologists Patricia Guttridge and Carol Warren say these ado­lescents have been transformed from delin­quents to emo­tionally disturbed children.  After studying 1,119 adolescents in four Los Angeles-area psychiatric hospitals, they found that less than a fifth were admitted for serious mental illnesses. [Susan Stern, The Tribune (Oak­land, California), Sunday, July 6, 1986, p. A-1 & A-2].

Alison Bass relates this story in her book Side EffectsA Prosecutor, a Whistleblower, and a Bestselling Antidepressant on Trial (Algonquin Books of Chapel Hill 2008, p. 182): “…seventeen-year-old Tonya Brooks … was admitted to Seton Shoal Creek, a mental hospital for children and adolescents in Austin [Texas, in 2004].  The doctor diagnosed her as bipolar; according to Tonya, he labeled everyone bipolar.  ‘Ninety percent of the kids I met there, there’s nothing wrong with them,’ she later told me.”
Tonya’s observation about a doctor diagnosing everyone as bipolar might seem unlikely.  However, in his book Saving Normal: An Insider’s Revolt Against Out-of-Control Psychiatric Diagnosis, DSM-5, Big Pharma, and the Medicalization of Ordinary Life (HarperCollins 2013, p. 232), psychiatrist Allen Frances, M.D., former chairman of the Department of Psychiatry at Duke University School of Medicine, and head of the group that wrote two editions of the American Psychiatric Association’s “diagnostic” (actually description) manual, says “My experience has been that some clinicians make the same diagnosis and offer the same treatment for almost every patient they see.”  In the question and answer period at the lecture by British psychiatrist Joanna Moncrieff at the University of New England on February 25, 2013, a psychiatric hospital employee offered this observation:

I spent the first 6 years of my career working in a private psychiatric hospital …  In the morning we have ‘the morning report’, and we hear about the admissions from the day before, and over time I became aware I could predict the diagnosis based not on the symptoms that were described but by the personality of the psychiatrist who had admitted the patient, and I mean, with great accuracy. [“Joanna Moncrieff—The Myth of the Chemical Cure: The Politics of Psychiatric Drug Treatment”, YouTube.com at 1:02:51 & 1:05:32].

Such observations are further evidence of the invalidity of psychiatric “diagnosis” I document in The Myth of Psychiatric Diagnosis.  These unreliable and unscientific psychiatric “diagnoses” serve as the justification for involuntary psychiatric “hospitalization”, forced psychiatric drugging, and other supposed treatment.
In the February 1988 Stanford Law Journal Lois A. Weithorn, Ph.D., a former Univer­si­ty of Virginia psychology professor, said ” the rising rates of psychiatric admission of children and adoles­cents reflect an in­creasing use of hospitaliza­tion to manage a population for whom such intervention is typically inappro­priate: ‘troublesome’ youth who do not suffer from severe mental disor­ders” (40 Stanford Law Review 773 at 774).

A maga­zine article published in 1992 criti­cizing the trend towards locking up trouble­some teen­agers alleged that teenag­ers are locked up in psychiatric hospitals today more than in the past because “busy parents are less willing to deal with their behavior and be­cause inpatient psychi­atric business repre­sents a profitable market in the health-care field.”  The result was an in­crease in the number of psy­chiatric hospi­tals “from 220 in 1984 to 341 in 1988”.  This increase in the number of psychiatric hospitals result­ed in keen competition between hospi­tals and psychia­trists for patients:

Keeping all those psy­chi­atric beds filled is critical, and administra­tors are aggressively ensuring that they will be.  Hard-sell TV, radio, and magazine ads (up to tenfold in the past few years, accord­ing to Metz) are ubiq­uitous … Some facili­ties even resort to paying employees and others bonus­es of $500 to $1,000 per refer­ral.  … Rebel­lious teenagers used to be grounded.  New they’re being committed. Increasingly, parents are locking up their unruly kids in the psychiat­ric wards of pri­vate hospitals for engaging in what many therapists call normal adolescent behavior. Adolescent psychiatric admissions have gone up 250 or 400 percent since 1980, reports Holly Metz in The Pro­gressive (Dec. 1991), but it’s not because teens are sudden­ly so much crazier than they were a decade ago.  Indeed, the Children’s Defense Fund sug­gests that at least 40 per­cent of these juvenile admissions are inap­propriate, while a Family Therapy Networker (July/Aug. 1990) youth expert puts that figure at 75 percent.” [Lyn­ette Lamb, “Kids in the Cuckoo’s Nest  Why are we locking up America’s trouble­some teens?”, Utne Read­er, March/April 1992, pp. 38, 40]

In her book And They Call It HelpThe Psychiatric Policing of Americas Children, published in 1993, Louise Arm­strong la­ments “the 65 percent of kids in pri­vate, for-profit psych hospitals who simply do not need to be there but are given severe-sound­ing labels nonetheless (Addison-Wes­ley Pub. Co., p. 167—italics in original).
In the 1980s and 1990s unjustified involuntary commitment to psychiatric hospitals become so blatant Readers Digest published an article in the July 1992 issue exposing the unethical prac­tice:

      Similar storm clouds are appearing over the mental-health field.  Alarmed by exploding costs, insurance companies began scrutinizing payments more carefully—and ultimately trimmed the average patient’s length of hospital stay.  As a result, “private hospitals that once made a great deal of money are now desperate for patients,” says Dr. Alan Stone, former president of the American Psychiatric Association.
That desperation has opened the door for fraud.  Among the alleged abuses: patients abducted by “bounty hunters”; others hospitalized against their will until their insurance runs out; diagnoses and treatments tailored to maximize insurance reimburse­ment; kickbacks for recruiting patients; unnecessary treatments; gross overbilling.
The most infamous charges were leveled in Texas.  On April 4, 1991, two private security agents showed up at the Harrell family home in Live Oak to pick up Jeramy Harrell, 14, and admit him on suspi­cion of drug abuse to Colonial Hills Hospi­tal, a private psychiatric facility in San Antonio.
Family members believed the agents to be law-enforcement officers.  If Jeramy didn’t cooperate, the agents said, they could obtain a warrant and have him detained for 28 days.  “They acted just like the Gestapo,” the boy’s grandmother-and legal guard­ian-later told a Texas state senate commit­tee.
According to that testimony, Jeramy was denied any contact with his family for six days and released only after a state sena­tor [Frank Tejeda, later elected to Congress] inter­vened.  State officials discovered the boy had been ordered detained by a staff doctor after his disturbed younger brother lied about Jeramy’s supposed drug use. The guards who brought him in worked for a private firm paid by Colonial Hills for each patient delivered. …
Soon after the ordeal, the Harrells got a bill for Jeramy’s six-day stay, a stun­ning $11,000.  The hospital’s owner denied any wrongdoing.
The Harrell case led to those Texas senate hearings, which in turn brought to light other allegations of fraud and abuse involving some 12 other Texas facilities and at least three other national hospital chains.  Similar charges have been made against hospitals in New Jersey, Florida, Alabama and Louisiana; three federal agencies have opened investigations, and more than a dozen states have probes under way. [Gor­don Witkin, “Beware These Health Scams”, Readers Digest, July 1992, p. 142 at 144-146]

Another example was reported in National Review magazine in 1996:

   John David Deaton was a normal 17-year-old when he walked into a National Medical Enterprises (NME) psychiatric hospital in Dallas.  A physician had persuaded him to go to there for help with depression after his girlfriend jilted him. Deaton did not know that the physician was on the hospital’s payroll, and that his pay depended on how well he did at filling hospital beds.  …  After four days, when Deaton sought to leave, he was tied down with leather restraints. …  In fact, the most abnormal thing about John Deaton was that his father’s employer provided extraordinarily rich insurance coverage for mental illness.  … It was only when Deaton’s insurance coverage ran out that he was allowed out of his restraints.  …  “I was held in bondage for insurance money,” Deaton told a congressional hearing in 1994.  “Health-care fraud cost my insurance company around $250,000.  It cost me over a year of my life.”
Now, thanks to a recent U.S. Senate vote, we may all become more vulnerable to this kind of psychiatric buccaneering, if not as “patients,” then as people who will have to pay higher insurance premiums to cover “therapy” for a host of illnesses, many of them imagined or bogus. [Eugene H. Methvin, “Cuckoo’s Nest”, July 15, 1996, p. 38]

In 1991 or 1992 an administrator at a psychiatric hospital told me competition between psychi­atric hospitals is what she called “cut throat”.  That can create a motive to hospitalize people unnecessarily, including by force if the so-called “patient” refuses.

What is most needed is widespread recognition that “mental illness” is an invalid con­cept.  A psychiatric “diagnosis” is nothing more than a value judgment about a person’s thinking or behavior. Psychi­atric “diagnoses” have nothing to do with medicine except for the fact the people making the value judgments are physicians.  These value judgments have nothing to do with health.

3280 S. Florida Avenue (Route 41) Inverness, Florida

No Jury, No Justice

On March 26, 2015, I asked a Pennsylvania public defender responsible for representation of defendants in involuntary civil commitment for mental illness if Pennsylvania judges ever release people in such cases. He replied, “On occasion, but it’s rare.”

In an article opposing all involuntary psychiatric treatment titled “The Double Standard of Forced Treatment” (psychcentral​.com, 26 Nov. 2012), psychologist John M. Grohol, Psy.D., said this:

Forced treatment for people with mental illness has had a long and abusive history, both here in the United States and throughout the world.  …  reform laws in the 1970s and 1980s took the [psychiatric] profession’s right away from them to confine people against their will.  Such forced treatment now requires a judge’s signature.  But over time, that judicial oversight—which is supposed to be the check in our checks-and-balance system—has largely become just a rubber stamp to whatever the doctor thinks is best.  …  Judges simply don’t work as check for forced treatment, because they don’t have any reasonable basis on which to actually rest their judgment in the short time they’re given to make a determination.

Actually, of course, judges could take all the time they want to hear and evaluate the evidence for and against forced treatment and to form their own opinion about whether forced treatment is justified in any particular case.  The problem isn’t that they can’t but that in most cases they won’t.  There is simply no way to force judges to exercise their own independent judgment rather than routinely defer to the judgment of the committing psychiatrist, physician, or psychologist.  In the words of one law journal commentator, “Despite statutory protections for commitment, research has found that procedures for involuntary commitment tend to be perfunctory and a legal charade, which merely ‘rubber stamp’ psychiatric recommendations” (Douglas S. Stransky, “Civil Commitment and the Right to Refuse Treat­ment”, 50 University of Miami Law Review 413 at 417, note 29).

However, the presence of a lay jury empowered to decide whether or not a person should be involun­tarily committed changes this.  Trial by jury provides a real opportunity for the defendant to be released, or in the case of outpatient commitment, a real opportunity to avoid court-ordered outpatient psychiatric drugging or electroshock. This is why a New York Mental Hygiene Legal Service attorney, in a lecture I attended in 2013, said in his observations mental hospital personnel “go crazy” whenever one of their involuntary patients demands a jury trial.

Under state constitutional law or state statutes, the majority of Americans do currently have a right to trial by jury in civil commitment of law-abiding persons for supposed mental illness.  However, the right to jury trial in civil commitment for mental illness is not currently recognized in many states of the U.S.A. despite the unanimous U.S. Supreme Court opinion in Humphrey v. Cady, 405 U.S. 504 at 508-510 (1972) saying jury trial is needed for a full and fair determination in such cases:

    In Baxstrom [383 U.S. 107], substantially the same argument was advanced by a convicted prisoner who was committed under New York law for compulsory treatment, without a jury trial, at the expiration of his penal sentence. This Court held that the State, having made a jury determination generally available to persons subjected to commitment for compulsory treatment, could not, consistent with the Equal Protection Clause, arbitrarily withhold it from a few.  [citation omitted]  The Court recognized that the prisoner’s criminal record might be a relevant factor in evaluating his mental condi­tion, and in determining the type of care and treatment most appropriate for his condi­tion; it could not, however, justify depriving him of a jury determination on the basic question whether he was mentally ill and an appropriate subject for some kind of compulsory treatment.
Since 1880, Wisconsin has relied on a jury to decide whether to confine a person for compulsory psychiatric treatment.  Like most, if not all, other States with similar legis­lation, Wisconsin conditions such confinement not solely on the medical judgment that the defendant is mentally ill and treatable, but also on the social and legal judgment that his potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty.  In making this determination, the jury serves the critical function of introducing into the process a lay judgment, reflecting values generally held in the community, concerning the kinds of potential harm that justify the State in confining a person for compulsory treatment. [italics added]
Commitment for compulsory treatment under the Wisconsin Sex Crimes Act appears to require precisely the same kind of determination, involving a mixture of medical and social or legal judgments.  If that is so (and that is properly a subject for inquiry on remand), then it is proper to inquire what justification exists for depriving persons committed under the Sex Crimes Act of the jury deter­mination afforded to persons under the Mental Health Act.

The Supreme Court of California ruled a unanimous jury verdict in civil commitment of law-abiding but mentally ill persons is required by the due process clause of the California Consti­tution in Mabel Roulet, 590 P2d 1 (1979).  The highest courts of other states have said the right to trial by jury in civil commitment for mental illness is protected by state constitution provisions preserving the right to jury trial as it existed under common law or at the time of the adoption of the State’s constitution: Missouri in State v. Holtcamp, 138 SW 521; New York in Sporza v. German National Bank, 84 NE 406 as interpreted in Coates, 8 AD2d 444, Arnold v. Sanchez, 634 NYS2d 343, and Robert C. v. Wack, 635 NYS2d 677; Tennessee in Johnson v. Nelms, 100 SW2d 648; Texas in White v. White, 196 SW 508; and Washington in Ellern, 160 P2d 639 and Quesnell, 517 P2d 568.  In Quesnell the Supreme Court of Washington put it this way:

First, the right to trial by jury in Washington mental illness proceedings is guaranteed by constitution (Wash.Const. art. 1 §21) and statute (RCW 71.02.210). … the jury plays an essential role in guarding against wrongful commitment. … the right to trial by jury in civil commitment proceedings is clearly fundamental.

As Judge Spreecher said in Lessard v. Schmidt, 349 F.Supp. at 1100 (1972), “The right to jury trial has been shown to be critical, numerous studies indicating that the exercise of that right may well mean the difference between release and commitment.”

There is no meaningful defense against unjustified involuntary civil commitment for supposed mental illness in states where there is no right to trial by jury because of the unwillingness of most judges to exercise their own independent judgment in such cases, and in states where judges are elected, the judge’s fear a person he releases may become a campaign issue in the next election by committing a crime of violence after being released. Like mental health professionals who commit anyone whose future behavior they have the slightest doubt about because of the professional’s liability for millions of dollars if a person he or she could have but does not commit later commits a crime, elected judges similarly must “play it safe” (for themselves) by committing anyone and everyone the judge even vaguely suspects may later do something that would jeopardize the judge’s re-election prospects. Jurors do not face this risk, so trial by jury is usually a defendant’s only realistic hope of retaining or regaining freedom when threatened with involuntary civil commitment.

In a column e-mailed to lawyers on March 2, 2015, State Bar of Texas president Trey Apffel wrote, “the right to a trial by jury is the very foundation of our liberties and freedoms. … To me, there is no higher ideal than the right to trial by jury.  … Alexander Hamilton once called the civil jury ‘a valuable safeguard to liberty.’  We must not allow that liberty to die.” Unfortunately, in civil commitment for supposed mental illness, it has died in many states of the U.S.A.

“Assistance” of Counsel?
Another important and needed reform is making the hiring and firing of mental health public defenders and the appointment of lawyers who represent proposed patients or respondents in civil commitment for mental illness (both inpatient and outpatient, and in involuntary guardianship) someone other than the judges before whom they appear.  My observation of lawyers in civil commitment proceedings makes it hard to avoid the impression that (1) judges appoint as defense counsel only those they know from experience will not provide genuine assistance to persons accused of mental illness in civil commitment, and (2) most judges making these appointments are unlikely to tolerate a lawyer doing all he should for his client in such cases.  Full-time mental health public defenders usually do a better job than lawyers whose law practices are mostly in other areas of law. Mental health public defenders at least are familiar with the applicable laws and sometimes do their jobs competently.  That is rarely the case with court-appointed lawyers.  When repre­sen­tation is by court-appointed lawyers, and too often when representation is by mental health public defenders, “assistance of counsel” in civil commitment for mental illness has become a weapon used against the defendant rather than a right of the defendant.  It has been said: It is better to have ten enemies than one fake friend.  It is important to know who your enemies are.  Appointed “defense” attorneys and mental health public defenders very often are one of the proposed patient’s enemies, but in disguise, a wolf in sheep’s clothing. Evidence for this can be seen by observing civil commitment hearings.  A study of involuntary civil commitment for mental illness in Nebraska found “there were proportionately fewer commitments among respondents represented by private counsel than among those represented by appointed counsel or public defenders” (Virginia Aldige Hiday, “The Attorney’s Rose in Civil Commitment”, 60 North Carolina Law Review 1027 at 1031 (1982).  In 2014, Alaska attorney James Gottstein, President/CEO of the Law Project for Psychiatric Rights, said “when I represent someone in a commit­ment hearing I tell them it will take me at least a day or two to get ready.  I tell them if they don’t want to wait that long for a hearing, they can use the public defender and almost certainly be committed, or they can use me, wait a day or so, and have a real shot at not being commit­ted” (“Should PsychRights Ask the U.S. Supreme Court to Hear an Appeal of the Alaska Supreme Court’s Decision?”, madinamerica.com, February 15, 2014).

One way representation by counsel is used as a weapon against the defendant is refusing to allow the defendant to speak on his own behalf or ask questions of witnesses because he is represented by counsel: Assistance of counsel should not be an excuse to ban a person from speaking in his own defense nor asking questions of witnesses.
Another is giving a single lawyer too many clients to represent in a single day’s hearing schedule, preventing him from having time to adequately prepare himself for representation of each client.

Another way representation by counsel has been made a weapon used against the de­fend­ant is paying defense counsel a fixed fee for each person represented whether the case is re­solved in a 30 second pro forma hearing or a week long jury trial, making it financially disad­van­tageous for the lawyer to do anything on behalf of his client that would lengthen the proceedings and take more of the lawyer’s time.  This kind of compensation scheme encourages lawyers to do all they can to dissuade clients from exercising their rights such as the right to a jury trial.

In most cases, proposed patients or defendants in civil commitment for supposed mental illness would be better protected by having no lawyer appointed to represent them and instead given a pamphlet or booklet containing a copy of the statutes under which they are being committed, summaries of important court decisions about civil commitment law, statistics about outcomes in the prior year’s civil commitment cases in the jurisdiction, including percentage committed and released by juries and by judges, and by appearing in court with no “assistance” of counsel.  Because defense lawyers in this type of case typically know so little about the applicable statutes and judicial precedents, providing this kind of information to defendants should be required even if the defendant is represented by counsel.

Does this seem like it must be exaggeration?  Could judges and lawyers really be that bad?  No, this is not an exaggeration, and yes, in this area of law judges and lawyers usually are that bad.  This is not just my opinion: Every study of civil commitment for mental illness I have found reaches similar con­clusions:

In their 903 page textbook, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (Guilford Press 2007, pp. 348, 350 & 352), a group of medical school and law school professors (Gary B. Melton, et al.) make these observations:

[E]mpirical studies of these hearings reveal that they are often pro forma exercises in which little effort is expended on the respondent ‘s behalf.  …  [T]he referees [acting as judge in the case] encouraged passivity on the part of defense attorneys.  Some referees expressly discouraged cross-examination of witnesses… The result was that commitment hearings were little more than a stamp of approval for the attending physician’s opinion. … These types of findings are echoed in several other studies.  Virtually all found that attorneys rarely act in an adversarial manner during commitment hearings and indeed often assist the state in its task of proving committability [that is, are one of the proposed patient’s enemies, but in disguise].  … many lawyers do not appreciate the legal-moral aspects of civil commitment, and they may be mystified by clinical phenomena presented to them.  Even when attorneys are neither naive nor lackadaisical, they may find judicial resistance to their doing their job.

In a law journal article titled “Effective Counsel for Persons Facing Civil Commitment: A Survey, a Polemic, and a Proposal”, a law professor and lawyer in private practice, Elliott Andal­man & David L. Chambers (hereinafter “Andalman & Chambers”), 45 Mississippi Law Journal 43 at 54, 74 & 83 (1974) say this:

There will also be judges who resent the industrious attorney’s disruption of formerly peaceful commitment procedures and who will confound the attorney’s efforts at ardent advocacy by subtlety conveying that if the attorney presses procedural arguments, or even substantive ones, she and her future clients will suffer.  …  counsel’s behavior—the ardor of her advocacy—is shaped in part by her perception of the degree of ardor the judge will tolerate.  …  In most systems of court-appointed counsel in criminal, juvenile, and mental health cases, the authority to appoint has resided with the judge before whom the attorneys appear.  The power of appointment has been a source of much abuse, both in its use as patronage and as a method of securing attorneys “who will not make trouble.” …  As minimum protection we  believe that appointments should be removed from the control of the committing judges and placed under an agency or bar committee that is not beholden to the judge.

In 1986 in Rivers v. Katz, 67 NY2d 485, New York’s highest court ruled that involuntarily committed mental patients may not be forcibly drugged until after a judicial determination they lack the capacity to decide for themselves and that taking the “medication” is in their best interests.  A study titled “Mental Hygiene Law Court Monitoring Project…An Examination of Rivers Hearings in the Brooklyn Court” (New York), June through October 1997, found in addition to almost always granting requests by psychiatrists for involuntary “medication”, undermining the rights created by New York’s highest court in Rivers v. Katz, judges usually do all within their power to prevent persons accused of mental illness from having conscientious representation by legal counsel: “Although people have the right to be represented by a private attorney, if they can hire one, we only saw a request for this once, and it was severely hampered by the court … All the [defendants or respondents in] hearings covered in this report were represented by the MHLS”, which stands for Mental Hygiene Legal Service, a public defender service.  The court monitors made the following observations:

Psychiatrists advocating forced medication [with one or more neurotoxins] are not closely questioned as to how they made the determination that a person lacks capacity.  They are not made to specify in detail the numerous risks associated with neuroleptic drugs, nor are they usually required to detail the benefit sought or their weighing of risks versus benefits for this particular person.  …  Most often, closing arguments are neither offered nor required. …  Respondents’ resistance to psychotropic drugs as part of what they believe to be illegal incarceration is treated as evidence of their lack of capacity.  …  MHLS does not appear to be well-versed in mainstream psychiatric literature docu­menting adverse effects as well as questioning alleged benefits.  Nor do they appear to be well-versed in the PDR [Physician’s Desk Reference, a book summarizing the uses and dangers of pharmaceuticals], and have not in our observations used the PDR or any scientific literature to challenge psychiatrists’ assertions.  …  MHLS cross-examination leaves a great deal to be desired.  It does not appear to be developed as an adversarial examination of a hostile witness… At times the MHLS attorney appears to be making the opposite side’s case.  [That is, the “defense” attorney is often his supposed client’s enemy while disguised as defense counsel] …  when attorneys do represent their clients’ asserted position, they are usually stymied by the court [meaning, by the judge].  …  Contrary to Rivers, the decision which is “uniquely judicial” (determination of capacity) has been de facto returned to the “medical” profession by judges who refuse to exercise their independent fact-finding duty.  … [The judge who heard most involuntary psychiatric drugging petitions] told Daily News reporter Bob Liff that she “strictly follows the psychiatrists’ findings.”  …  In all circumstances where the person is refusing, and there is only the “treating” psychiatrist testifying as an expert witness (in favor of forced drugging), the orders are granted.  Such deference to psychiatrists neutralizes the effect of Rivers with regard to backing up the constitutional right to refuse recognized in the [Rivers] decision.  …  Since almost everyone loses in court, and administrative hearings rarely dislodge the original psychiatrist’s opinion, this means very few people successfully refuse [to be drugged].

My observation of involuntary civil commitment and forced psychiatric drugging hearings in Texas convince me the situation is the same in Texas now as it was in Brooklyn in 1997: Courts continue to authorize “involuntary medication” with psychiatric drugs that should be taken by no one.  (See Psychiatric DrugsCure of Quackery?).

Furthermore, in some states, Texas being an example, there is as a practical matter no right to appeal the judge’s decision to authorize forced drugging: Texas Mental Health Code §574.108 (b) provides “An order authorizing the administration of medication regardless of the refusal of the patient is effective pending appeal of the order.”  So during the time required for a court of appeals to rule, which is typically measured in months or years rather than days or weeks, the so-called patient is being drugged against his will, as a practical matter making the county or probate court judge not only the court of first resort but also the court of last resort.  (See “Torture as ‘Therapy'” in Why Psychiatry is Evil.)

In “The Attorney’s Rule in Involuntary Civil Commitment”, 60 North Carolina Law Review 1027 at 1033 (1982), Virginia Aldige Hiday, Ph.D., a North Carolina State University sociology professor and Visiting Professor of Psychiatry at the University of North Carolina Medical School, cites answers to a questionnaire distributed to judges hearing civil commitment for mental illness: “Less than twenty percent of judges demonstrated approval of the adversarial model” or roll of defense counsel in civil commitment for mental illness (Id., p. 1037).  She says “One public defender who vigorously advocated for his client’s release was dismissed from his job for failing to share the paternalistic viewpoint of the judge and other public defenders” (Id. at 1033).

In 2011, I witnessed strong evidence of a full-time mental health public defender being intimidated by a judge before whom she regularly tried mental health civil commitments because she told me proposed patients like those she represents have a better chance of being released if tried by a jury than by a judge.  She seemed appalled when I told her there is no right to trial by jury in civil commitment for mental illness in other states.  She said there being no right to trial by jury in civil commitment for mental illness in states where it does not now exist is terrible or awful because so many people being committed against their will “aren’t even sick.”  When I told her about my efforts to persuade state legislators to create a right to trial by jury in civil commitment in states where the right does not now exist, she thanked me, saying “I appreciate your work.”  Later, the judge before whom she usually appeared, learning of her opinion release is more likely if the decision is by a jury rather than by him, seemed offended by the implication anyone would need a jury to be treated fairly in his court.  He called me on the telephone and told me she denied making that statement.  When I talked with her again she seemed nervous and, unlike before, said she was hesitant to discuss questions about civil commitment with me lest what she said be “misconstrued.”  Then she stated the opposite of her previously stated opinion, one the judge plainly would like better, namely, that proposed patients have a better chance of release if tried by a judge rather than by a jury, because, she now said, judges can tell if a person is really sick, but juries will commit anyone who is different from themselves.

I inquired about being a part-time, substitute mental health public defender in her office who would step in when one of the full-time defenders was out sick or on vacation.  After being told the name of the chief or administrative judge who makes those appointments, I attended a continuing legal education class taught by that judge.  After class I handed the judge my resume and requested the appointment.  My request was ignored, even though I offered to do it for free, or pro bono.  I couldn’t help wondering if the reason was I made it clear I intended to provide genuine representation and vigorous advocacy for my clients.

I thought it likely the mental health public defenders, being hired by that same judge, a colleague of the judge who was offended by the mental health public defender’s remark about the superiority of trial by jury, can also fire them.  My effort to find out if the mental health public defenders must constrain their advocacy to protect their jobs because they can be fired by the same judge who hires them, and who before whom they sometimes appear, led me to that same chief or administrative court judge’s office where I asked her secretary or office manager, who referred me to the office of the County Commissioners, where I was referred to a court administrator, who referred me to the office of a public defender.  I never could get an answer.  Nevertheless, I suspect the mental health public defender changed her outwardly stated opinion about the value of trial by jury in civil commitment for mental illness because she was afraid of losing her job, as happened to the mental health public defender in Professor Hiday’s above cited article.  If so, she probably also dares not be as conscientious as she would like to be in her in her representation of clients.  That’s a problem, because as I and other observers have noted, many judges hearing civil commitments seem to want to get such cases disposed of in a matter of minutes—or even seconds—and would be very annoyed if a defense attorney got in the way of such assembly-line justice.  I have seen many civil commitment for mental illness hearings that were one minute or less in duration, with only a few lasting even five minutes, permitting twenty or thirty defendants to be committed in less than an hour.  In one case, the judge ignored a proposed patient’s demand for trial by jury and was not challenged by the court-appointed defense attorney until I spoke with him after the hearing and said to him, “Are you going to let the judge get away with that?”  I have no doubt my presence in the courtroom that day, only as an observer, not a lawyer in the case, was the main reason that defendant got the jury trial he demanded.

In Professor Hiday’s article she reported that “In various studies in six states, respondents’ lawyers were described in such terms as reticent, ineffective, ill-prepared, mostly silent, lacking interest, rarely extending any effort, giving only perfunctory representation, doing little or nothing to obtain a client’s release and seldom challenging adverse statements by witnesses or adverse psychiatric testimony” (60 North Carolina Law Review 1027 at 1030 (1982).  In Andalman’s & Chambers’ study of effectiveness of lawyers representing proposed patients they say “What we have found, to our chagrin and professional embarrassment, is that attorneys appointed by courts for nominal fees to represent allegedly ill persons rarely expend any effort on their client’s behalf” (p. 44).  In an article titled “The Right to Counsel, Waiver Thereof, and Effective Assistance of Counsel in Civil Commitment Procedures”, 29 Southwestern Law Journal 684 at 709, 712, 713 (1975), Vermont Law School professor John J. Brunetti, J.D., LL.M., says this:

The abundance of articles on counsel’s role in the commitment process impliedly questions the competence and professional integrity of the private practitioner.  …  the real burden is on the legislatures to make the right to counsel truly meaningful in this area of practice where few attorneys are experts.  …  Admittedly, the need for statutorily specifying such [defense counsel] duties is an affront to the competency and conscien­tiousness of the legal profession, but the results of research studies belie the contention that appointed attorneys are, on the whole, competently representing their clients in the civil commitment process.

The result, in Professor Brunetti’s words (Id. at p. 707), is “the appointment of counsel may, or actually has, become a mere procedural ritual which helps to sanctify the judgment of commitment without providing any substantive protection.”  Andalman & Chambers say in their observation of civil commitment proceedings in several states, the lawyers representing defendants in civil commitment for mental illness “did virtually nothing except stand passively at a hearing and add a falsely reassuring patina of respectability to the proceedings.  There is some reason to fear that the presence of counsel who does nothing is not merely of no use to her client but may in fact worsen the client’s chances for release” (45 Miss.L.J. at 72).

I’ve made inquires but found no law schools that require students to take even one course in civil commitment for mental illness to graduate from law school.  Many, perhaps most law schools do not even offer such courses as electives.

There were no questions about civil commitment on the Texas bar examination I took in 1974.  Currently, bar examinations are typically two days long and include both the Multistate Bar Examination (MBE) and essay questions by the particular state’s board of law examiners.  On July 5, 2013 I telephoned the associate executive director of Ameribar, a company providing bar examination preparation courses and materials.  I asked him if there are any questions on the various state’s bar examinations about civil commitment, whether for mental illness or of so-called sexually violent predators (see my discussion of supposedly “civil” commitment of so-called sexually violent predators in Is Involuntary Commitment for “Mental Illness” or “Dangerousness” a Violation of Substantive Due Process?)  He said on the MBE the answer is “definite­ly no” and that regarding the essay questions, which vary from state to state, the answer is “potentially, but probably not.”  Also on July 5, 2013 I asked the same question of employees of the Texas Board of Law Examiners.  The Texas bar exam director told me he could not recall any questions about civil commitment on the Texas bar examination. He referred me to the Board of Law Examiner’s web site where, he said, I would find the essay questions on the last ten years of Texas bar examinations. Seeing one of the questions on the February 2013 Texas bar examination was “What is a ‘Pugh’ clause?” (in an oil and gas contract) I did an Advanced Google Search of the Board of Law Examiners web site, http://www.ble.state.tx.us, for the word “Pugh” to test Google’s indexing of the Board of Law Examiner’s web site.  The bar exam question “What is a ‘Pugh’ clause?” appeared in my search results. Having verified Google’s indexing of the Board of Law Examiner’s web site I then did a search for the word “commit­ment”, which would apply to civil commitment of so-called sexually violent predators as well as civil commit­ment of law-abiding but supposedly mentally ill people. Along with questions about criminal convictions or being fired from jobs, my search results revealed questions on the Declaration of Intention to Study Law and General Application for Admission to the Bar of Texas asking applicants if they have ever been the defendant in a commitment proceeding but no bar examination questions about civil commitment, whether for mental illness or of so-called sexually violent predators.

In most if not all states of the U.S.A., lawyers are required to complete a minimum number of hours of continuing legal education (CLE) to maintain licensure.  On August 23, 2013 I wrote by e-mail to a company offering CLE courses, Lawline.com, saying “I’d be interested in continuing legal education on civil commitment (of mentally ill persons and sexually violent/sexually dangerous persons, including outpatient commitment) and involuntary guardianship/conservatorship of adults (including Massachusetts Rogers guardianships).”  Later the same day I received a reply from a Lawline.com employee saying “Unfortunately it looks like we don’t have any courses in those subject areas available for you in Texas right now.”  I wrote back asking “Does your company have any courses in civil commitment or guardianship outside Texas?” The Lawline.com representative wrote back: “The only course I could find has to do with guardian­ship specifically in Virginia.” He could find no continuing legal education courses in civil commitment anywhere and no continuing legal education about the involuntary guardianship or conservatorship of adults in 49 of the 50 states.

Lawyers not being required to study civil commitment to graduate from law school, the lack of courses of instruction in civil commitment even as electives at many law schools, the entire subject being omitted from state bar examinations, and the nonexistence of continuing legal education courses in civil commitment, partly explain why Andalman & Chambers are correct when they say “most attorneys are unfamiliar with the commitment process” (45 Miss. L.J. at 50).  They wrote that in a bar journal article published in 1974, but it remains true now, decades later.

Most lawyers appointed to represent defendants in civil commitment for mental illness also know very little about psychiatry, and most of what little they think they know about psychiatry is wrong.  There are exceptions, and as a lawyer who has represented mental hospital “patients” as privately retained counsel, read books and now written a book about psychiatry and mental health law, I think I am one of them.  However, generally speaking, limiting assistance of counsel available to defendants in civil commitment for supposed mental illness to lawyers prevents those threatened with involuntary commitment from having competent and conscientious assistance of counsel.  Yet only lawyers are permitted to serve as defense counsel in civil commitment proceedings.  People who are not lawyers, and lawyers who are not licensed in the state where the proceedings are held (with exceptions called pro hac vice, or for this occasion) are not permitted to do so even if they know more about psychiatry and mental health law than most of the lawyers who now serve as defense counsel in civil commitment.  In my opinion, the right of defendants to assistance of counsel, being a constitutional right, should take precedence over unauthorized practice of law statutes that limit represen­tation of proposed patients to lawyers licensed to practice in a particular state, or any state, because such laws prevent these defendants from having genuine assistance of counsel.  My opinion about this receives support from Andalman & Chambers who say “Social workers with addi­tional training in law and pro­ce­dure or specially trained paralegal professionals could adequately perform many, even all, of the functions herein prescribed for attorneys [in civil commitment for mental illness].  Our real point is that what is needed is an informed advocate, regardless of title or formal education” (45 Miss.L.J. at 53).

The Role of Insurance Companies in Curtailing Unjustified Psychiatric Commitment

Far from anything idealistic like law or concern for human rights, the primary forces curtail­ing unjustified involuntary psychiat­ric “hospitalization” in the U.S.A. have been insurance com­panies motivated not by ideal­ism but the need to stop or at least reduce insurance fraud.  As Tim Goolsby remarked in 1986 (above), “they [the health insurance companies] [a]re being ripped off.”  Eventually the health insurance companies became aware of the needless (and harmful) psychiatric treatment they were paying for.  According to a front-page article in the August 3, 1992 issue of Investors Business Daily:

Last Thursday…eight major insur­ance companies sued NME [National Medi­cal Enterprises] for alleged fraud involving hundreds of millions of dollars in psychiatric hospital claims. Their complaint, filed in federal court in Washington, accused the company of a “massive” scheme to admit and treat thousands of patients regardless of their need for care. …some institutions were paying “bounty fees” for patient refer­rals or misdiagnosing patients to get maxi­mum reimbursement.  [Christine Shenot, “Bleeder at National Medical Insurers Cry Of ‘ Fraud’ Reopened A Big Wound.” Inves­tors Busi­ness Daily, Monday, August 3, 1992, p. 1]

Time magazine later reported NME settled the case for a record $300 million (April 25, 1994, p. 24).  An article about a similar suit filed in Dallas, Texas appeared in the Sep­tember 15, 1992 issue of New York News­day:

Two of the country’s largest insurance companies filed suit yesterday against a national chain of private psychiatric and substance abuse hospitals, charging it with illegally admitting patients who did not need treatment and then not releasing them until their insurance benefits ran out.  [Michael Unger, “Hospitals Called Cheats—Insurers say health-care chain pulled off nationwide scam”, Thursday, Sep­tember 15, 1992, Business section, page 33]

Mental health industry advocates responded to these insurance company attempts to reduce mental health care insurance fraud by lobbying, successfully, for state and federal statutes, called “mental health parity” laws, requiring health insurance policies to cover psychiatric and other so-called mental health treatment on the same basis and on the same terms, such as length of hospital stay, as they do bona-fide treatment of real disease.  The U.S.A.’s federal Patient Protection and Affordable Care Act (“Obamacare”) requires all persons (except prison inmates and a few others) to purchase health insurance that is far more expensive because of the legally mandated inclusion of treatment for so-called mental illness and other supposed mental health problems such as addiction (which one critic wryly but truly said is a disease you can decide not to have).  Laws requiring health care insurance companies to pay for so-called mental health care as well as real health care, and Obamacare requiring the purchase of health insurance, make money available to pay for involuntary psychiatric “treatment” that would not other­wise be available.  This encourages health insurance fraud consisting of unnecessary, harmful, involuntary supposed mental health treatment.

Insurance fraud involving psychia­trists involuntarily “hospitalizing” and “treating” people who do not want or need treatment (as if psychiatry had bona-fide treatment) illustrates a serious underlying problem that still has not been ade­quately addressed: Loss of liberty based on the opinions of psychiatrists rather than on unlawful conduct by the accused has no place in a nation that claims to be governed by rule of law or claims to respect the rights of each individual.

Copyright (c) Wayne Ramsay

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