Your Consent Is Not Required: The Rise of Psychiatric Detentions, Forced Treatment, and Abusive Guardianships

It’s just hard to read.  It’s hard to read that people’s liberties are being stolen.  That professional organizations are complicit in the continued harm.  Your Consent Is Not Required: The Rise of Psychiatric Detentions, Forced Treatment, and Abusive Guardianship is a sad story of how it’s too easy for someone to become a prisoner of the mental health system.

What Doesn’t Work

No one should believe that solitary confinement for extended periods of time is therapeutic.  In Chasing the Scream, Johann Hari explains the real reasons that rats preferred morphine laced water over regular water: they were being held in solitary confinement.  Bruce Alexander, in The Globalization of Addiction, explains the experiments that his team did in more detail, including the fact that the water included both morphine and sugar – not just morphine.  When the rats were given socialization and toys to play with, they didn’t seek the morphine-laced water in the same way.  They were adapting to their imprisonment – their solitary confinement – by taking drugs to numb the social pain.

Ubuntu derives from a Zulu saying that literally means, “A person is a person because of other people.”  Social workers think about this as person-in-environment.

Where the Supreme Court Sits

There are a set of cases that are important to how psychiatric care is viewed by the courts in the US.  The point at issue is the Fourteenth Amendment to the Constitution, which guarantees due process under the law.  Much of what happens with psychiatric detention skirts dangerously close to these protections.

In Addington v. Texas (1979), the bar for the standard of evidence for psychiatric detention was lowered.  There are three levels of evidentiary requirements for burden of proof, from the least difficult “preponderance of the evidence” through “clear and convincing evidence” to “beyond a reasonable doubt.”  In this decision, the requirement was moved from “beyond a reasonable doubt” to “clear and convincing evidence,” because the court was concerned that the “beyond a reasonable doubt” standard couldn’t be met given the problems with psychiatric diagnosis.  The opinion states, “The reasonable doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet, and thereby erect an unreasonable barrier to needed medical treatment.”

Since then, there have been cases that have raised the bar for expert testimony.  The current standard was set in the Daubert (1993), Joiner (1997), and Kumho (1999) cases.  One of the problems is the inconsistency with which these standards are still applied.  For instance, the Rorschach ink blot test fails to meet these standards according to “Failure of Rorschach-Comprehensive-System-Based Testimony to Be Admissible Under the Daubert–Joiner–Kumho Standard” (2002), but it’s still routinely used by “experts”.  (See also Science and Pseudoscience in Clinical Psychology and The Cult of Personality Testing.)  While courts are supposed to use these standards of evidence, they will often side with a psychiatrist because of their technical credentials even if their work is built on a house of cards.  (See House of Cards: Psychology and Psychotherapy Built on Myth.)

Despite the court’s failure to maintain evidentiary standards, they have repeatedly reaffirmed the need for due process.  In Vitek v. Jones, they required that a prisoner’s transfer to a mental health institution must “be accompanied by adequate notice, an adversary hearing before an independent decisionmaker, a written statement by the factfinder of the evidence relied on and the reasons for the decision, and the availability of appointed counsel for indigent prisoners.”

Too few public defenders have the time or inclination to push back on the civil commitment or guardianship hearings – if there is any defense given at all.  Wipond reports, “Many attorneys asserted to me that only about 5 percent of their civilly committed clients truly meet the standards for ‘dangerousness’ established by the US Supreme Court, and Simonson and I agreed that only a tiny percentage of the cases that we saw revolved around behaviors that either of us considered truly dangerous.”  While this fails the rigor of a study, even if it’s off by an order of magnitude, that still means that half the people who are being held don’t meet the requirements for “dangerousness.”

To understand why dangerousness is essential, we need to go back to O’Connor v. Donaldson (1975) and the finding that held, “A State cannot constitutionally confine, without more, a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends, and since the jury found, upon ample evidence, that petitioner did so confine respondent, it properly concluded that petitioner had violated respondent’s right to liberty.”  Conversely, in Foucha v. Louisiana (1992), the court decided that dangerousness isn’t sufficient – they must also have a serious mental illness.

The lingering problem with dangerousness is that the US Supreme Court has largely left the definition of “dangerous” to the states – who each have different standards.  In some states, like Indiana, they also include the concept of “gravely disabled.”  That is, they’re unable to take care of themselves.

Declining Treatment

A problem is that declining treatment – including unnecessary medication – can be seen as meeting the definition of gravely disabled.  Gravely disabled rests on the premise that a person is unable to take care of themselves, including basic hygiene and caring for their medical needs.  I think that few people would argue against someone who is unable to manage diabetes needing additional support.  However, in the case of diabetes, outpatient options are very viable in most cases.

When it comes to psychiatric care, the degree to which a medication is necessary comes into question.  Does the diagnosis apply?  Does the medication prescribed have clinical research that supports that it’s highly effective compared to placebo?  As we’ll see, there’s little consistency in diagnoses, and the medications used to treat these serious mental illnesses show only weak effect.

Under gravely disabled laws, courts often find that a person must take their psychiatric medication, and refusal to do so is used as evidence that they’re unable to care for themselves. In essence, the statement that you don’t have the mental illness claimed or refuse to take your medications is taken as tacit evidence that you’re gravely disabled.  It’s sort of like the tautological argument that you must be crazy to want to die by suicide.  (See American Suicide and The Varieties of Suicidal Experience.)

The medical term for an inability to see one’s own disease is anosognosia.  It’s often used as the excuse for dismissing a patient’s claims that they don’t have a disease.  The NAMI book, You Are Not Alone, speaks of it as a failure of the person rather than a situation of conflicting perspectives that should be resolved by seeking additional input.  Rather than recommending a third party evaluation, the presumption is that the patient is incapacitated – by their mental illness – and therefore can’t recognize they have it.  Few recommend another evaluation and diagnosis, because it’s quite unlikely that an additional evaluation will result in the same conclusion.

Civil Rights

Wipond shares that, since 1972, the US Supreme Court has regarded psychiatric detention as “a massive curtailment of liberty” (Humphrey v. Cady).  Why this is important is because in the US, law enforcement personnel have qualified immunity while performing their duties.  However, the immunity is nullified if it is shown that the officer acted maliciously or recklessly disregarded a person’s civil rights.  (See Undoing Suicidism for a more detailed discussion.)  The immediate detention by a law enforcement officer moves to the psychiatric professional who has no immunity and is ultimately responsible for the psychiatric detention the court acknowledged was a curtailment of liberty.

Brain Chemical Imbalance

In a 2022 Harvard Medical School article, the phrase “brain chemical imbalance” is a “figure of speech.”  However, this dismisses the decades of work that sincerely believed that there was a physical cause for mental illness – including work done by the American Psychiatric Association.  A statement made in 2013 by the chair of the DSM-5 Task Force begins with, “The promise of the science of mental disorders is great. In the future, we hope to be able to identify disorders using biological and genetic markers that provide precise diagnoses that can be delivered with complete reliability and validity. Yet this promise, which we have anticipated since the 1970s, remains disappointingly distant.”  There’s been no progress that I could find since then that connects biological causes to mental illnesses.

Expansion of Mental Illness

The Diagnostic and Statistical Manual (DSM) has, according to Wipond, “barely a whiff of medical science.”  Allen Frances, the task force chair for DSM-4, in a Huffington Post article expressed concern at the broadening of mental illnesses in DSM-5.  The American Counseling Association criticized the expansion, but the most damning quote comes from Til Wykes from Kings College London: “The proposals in DSM-5 are likely to shrink the pool of normality to a puddle with more and more people being given a diagnosis of mental illness.”

Often, people share that a large proportion of those who die by suicide have a mental illness.  The number is cited at 90% or higher depending on the person.  However, as is addressed on SuicideMyths.Org, the answer is substantially smaller than that.  The primary problem is with the definition of mental illness which has clearly been expanding.  Estimates of those who have a mental illness in the US exceed 20% – before accounting for disordered substance use, which, depending on the population being studied, causes the number to rise above 50%.  Based on a 2005 study, lifetime prevalence rates of DSM-IV disorders stand at over 50%.

Maintaining the Status Quo

Frances, quoted above, also stated, “I don’t want people who need help to get disillusioned and stop taking their medicine.  The full truth is usually best, but sometimes we may need a noble lie.”  There are two problems with this statement.  First, the reason that Frances doesn’t want people to stop taking their medications isn’t clear – and second is the inherent paternalism that sits that the core of the problem.

Sudden discontinuation of many of the psychoactive medications has potential lethal consequences.  Certainly, that should cause pause and support caution in the way that we describe the value of these medications.  However, we aren’t communicating that, according to Wipond, “After five years on antipsychotics, 30 percent of patients have already developed tardive dyskinesia—permanent neurological damage that causes motor dysfunctions such as drooling, tongue-wagging, tremors, and shaking.”  I’m not saying that there aren’t some people who absolutely require their medications to be able to function – I’m just saying that if we want to expose the risks, we should do them evenly.

As William Glasser explains in Warning: Psychiatry Can Be Hazardous to Your Mental Health, the evidence for SSRIs is very weak, only beating placebo controls narrowly when the constrains are set strategically.  The truth is that a placebo – or the hope of recovery – is so powerful that it dwarfs the impact of the medication itself.  (See also The Psychology of Hope for how to encourage hope.)

The second concern is that there’s a substantial degree of paternalism in the statement.  It’s not wrong to encourage good behaviors, but disguising the evidence crosses that line.  (See my reviews of Nudge, Happier?, and Undoing Suicidism for more about paternalism.)  It seems to me that paternalism, as it relates to smoking or alcohol use, stands on firm ground.  Paternalism around continuing to take medications that have serious, long-term consequences and questionable efficacy is very shaky ground.

Psychiatric Diagnosis Fiction

The editor of the DSM-5, Columbia University psychiatrist Michael First, acknowledged that labeling people as having particular mental disorders has “no firm basis in reality.”  What would cause someone to reach that conclusion?  A large part of it is the reliability problem with DSM-5.  Reliability refers to the ability for two independent people to produce the same assessment.  On this basis, the DSM-5 doesn’t do well.  Even the title, “DSM-5: How Reliable is Reliable Enough?,” betrays the problem that the same presenting patient will be given different diagnoses by independent evaluators.

Checkboxes

Unlike the immensely valuable checklists championed by Atul Gawande in The Checklist Manifesto, checkbox behaviors cause people to be harmed.  Rather than ensuring that every step is completed faithfully, checkbox behaviors look for the shortest path to diagnosis.  Once someone scores enough “points” to be considered for a diagnosis, the evaluator stops, adds the label, and moves on.

Their behaviors are encouraged by psychiatric assessments that identify people at a substantially higher rate than even the designers of the tools believe are true.  However, two of the three frequently used tools, the Patient Health Questionnaire (PHQ-9) and the Generalized Anxiety Disorder (GAD-7) survey, were underwritten by the drug company Pfizer.  Higher false-positive rates are good for business.  (See Rethinking Suicide for more about false positives.)

Prediction

What the public wants is for highly accurate prediction of the risk to which someone is to themselves and to others.  However, both are problematic.  On the suicide front, the ability for trained clinicians to predict short-term suicide risk is only slightly better than chance – and few clinicians have this level of training.  (See Rethinking Suicide.)

On the danger to others, the same predictive problem exists.  The US Supreme Court in California v. Ramos (1983) decided that predicting dangerous was difficult, but not impossible – and, strangely, a job for the jury. “The possible commutation of a life sentence does not impermissibly inject an element too speculative for the jury’s consideration. By bringing to the jury’s attention the possibility that the defendant may be returned to society, the Briggs Instruction invites the jury to assess whether the defendant is someone whose probable future behavior makes it undesirable that he be permitted to return to society, thus focusing the jury on the defendant’s probable future dangerousness.”

Another curious decision by the court in Barefoot v. Estelle (1983) states, “Moreover, under the generally applicable rules of evidence covering the admission and weight of unprivileged evidence, psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored. Nor, despite the view of the American Psychiatric Association supporting petitioner’s view, is there any convincing evidence that such testimony is almost entirely unreliable, and that the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.”  What makes this so curious is that the court completely discounts the American Psychiatric Association – who one would reasonably presume are the experts in psychiatric matters – only to insist that experts should be able to predict dangerousness in a way the association insists isn’t possible.

These cases, of course, predate the more recent standards of evidence.  However, their existence is a roadside attraction left to be reclaimed by the elements sending a clear message of the journey we’ve been on to uncoil the snake of psychiatrists who choked the life out of so many innocent people.

Housing Fourth

One policy approach is to work towards getting people stable housing first.  While the definition of stable housing can vary, conceptually, it’s having at least basic assurance that there will be a warm bed for the person.  Detractors of this approach cite the character of the people and their behaviors that have led them to their current situation.  The detractors see these problems as personal failings rather than systemic issues that lead some people into a downward spiral.

The alternative is what is called “housing fourth.”  It insists that people resolve their issues first and only then will they receive guaranteed housing.  I mentioned above that much of what we think about substance use disorder is wrong – and based on a fundamental misunderstanding of the “Rat Park” experiment.  There’s plenty of evidence that increasing shame and guilt creates an even greater need for and dependence on substances to make the world more tolerable.

Anne Case and Angus Deaton in Deaths of Despair work through, in greater detail, how the systems of capitalism create challenges for those near the bottom of the socioeconomic stack.  However, they don’t cover Wipond’s point that sometimes people exist outside the system.  Underage runaways aren’t able to get housing or a job.  That forces them into places where they have to find ways to survive outside the system.  These runaways may be escaping their parents or the foster care system – so there’s no way to get their approval for housing or jobs.

We shouldn’t continue to tolerate destructive behavior – but we can’t expect it to change unless we’re willing to change the conditions and pressures on people.

Funnels Leading to Detention

If people are detained against their will, how do we end up there in the first place?  There must be a mechanism whereby people are led to the place where someone decides to hold them.  It turns out one of those funnels is wellness checks.  You can, as a concerned citizen, ask for the police to check on the welfare of another person.  These checks often result in some kind of action.  It can be that they result in a hospital stay – and perhaps a psychiatric hospital stay.

However, wellness checks aren’t the only funnels towards involuntarily detention.  Sometimes it’s a call the person places themselves to 988 – or, formerly, to the National Suicide Prevention Line (NSPL).  Wipond shares that about 2% of these calls result in some sort of police response.  That’s particularly frightening when you consider that the average call length is 10 minutes.  We’re back to the prediction problem.  Certainly, the response rate shouldn’t be zero.  Some people will call and then welcome an in-person response.  The issue is the fact that people believe these lines are anonymous, and many come to find out that they’re not.  They find that information the police would have been required to get a warrant for is readily available to 911 operators – and the relationship between 988 and 911 operators isn’t clearly articulated.

One of the final pathways to detention are the programs that encourage laypeople to drive others toward getting help.  Like most things, it’s not bad to encourage people to get help.  It’s bad when the people that you’re referring them to have a profit motive.  For instance, Mental Health First Aid is run in the US by the National Council on Mental Wellbeing.  It’s a lobbying group for 3,500 treatment providers.  There may be a reason to consider their motives in what is being taught.

Moral Calculus

Albert Bandura’s tome Moral Disengagement explains what you do if you want people to behave in ways that are against their morals.  (See also The Righteous Mind for the foundations of morality.)  One of the ways that people can live with themselves is to believe that “we help more people than we hurt.”  They cannot ignore the fact that people are harmed by involuntary commitment – so they must use different moral calculus.  (See How We Know What Isn’t So for more on being forced to accept the truth.)

There are two problems with the statement.  First, the magnitudes of help and harm aren’t known.  Second, the frequency of both help and harm aren’t known.  So, we cannot know whether the net impact of these coercive processes are helpful or harmful.  Too many of us are looking at the research and conclude that we need to find a different balance.

Don’t Just Say No

In my formative years, Nancy Ragan surrounded herself by youth who would shout, “Just say no.”  This anti-drug campaign had a lot going for it.  The problem is that it didn’t appear to have any impact.  It fundamentally ignored the complexity and social pressures involved in the moment.  Conceptually, the decision is simple, but anyone who has been a teenager knows that the decisions aren’t that simple when peer groups are involved.

Scared Straight and Drug Abuse Resistance Education (DARE) were similarly ineffective – or, rather, slightly harmful.  They used fear and shame as the levers to change behaviors – but those are precisely the wrong levers to use when we’re talking about people’s mental health.

Going Back to the Trauma Roots

There seems to be at least some degree of consensus that there’s a causal relationship between trauma and mental illness.  Certainly not everyone who encounters trauma will develop and retain a mental illness – but trauma seems to lead to mental illness.  The greatest tragedy of confinement is that, rather than helping the person deal with their prior trauma, we heap on more.

Forced Treatment Doesn’t Work

In the end, the real problem is that, by-and-large, forced treatment doesn’t work.  It’s not that it’s never helpful.  It’s that it’s rarely helpful.  Given the chance of inflicting harm, we should be thinking more carefully and putting more protection in place.  Perhaps the starting point would be to address when Your Consent is Not Required.