Rational Suicide, Irrational Laws: Examining Current Approaches to Suicide in Policy and Law
I was sitting in a semi-rural county’s sheriff’s training center on the third day of a Crisis Intervention Team (CIT) training. I was wondering what the standard was for an officer to detain and transport a person for psychiatric evaluation before a judge was to teach the officers – and me as the only community member – what the standard was. Had I read Rational Suicide, Irrational Laws: Examining Current Approaches to Suicide in Policy and Law, I wouldn’t have been so surprised at what I was about to hear. What I expected to be clear rules and consistent rulings turned out to be a morass of confusing and conflicting laws, decisions, and opinions.
I began to learn that the standards – such as they were – could be interpreted very widely with very little, but some, consequences for interpreting things too broadly.
Signals of Caring
I read Rational Suicide, Irrational Laws on the heels of Your Consent Is Not Required. It was enough of the legal positioning that it nudged me into this work – which I’d long wanted to read. The result is that I realized one of the most important things in the process – no matter what the laws, court cases, or law enforcement say – is caring. Anything that signals caring to the person who is suffering is like a beacon they cannot ignore. Conversely, they can’t avoid observing that the inpatient psychiatric facility they’ve just been incarcerated in has paint chipping off the walls and broken furniture.
One of the biggest opportunities that we have as a society is to signal our caring and concern for people whose lives are filled with such suffering that they painfully consider suicide as an answer.
Glad to Be Alive
Survivors who have jumped from the Golden Gate Bridge often say that they realized immediately after jumping that everything in their life was solvable – except for having jumped. (See The Suicidal Mind and Myths about Suicide for more.) More generically, a small percentage of people who make an attempt go on to die by suicide. Research numbers vary, but clearly less than 15% of those who make an attempt go on to die by suicide.
Many people who make an attempt are glad they failed.
Mental Health and Suicide
The relationship between mental health and suicide is complex – and from the perspective of the law, problematic. As I mentioned in my review of Your Consent Is Not Required, involuntary detention requires both mental illness and dangerousness to self or others. Some states have include gravely disabled in that bucket of dangerousness if they don’t appear to be able to care for themselves. This problem is that the Supreme Court was clear that one must be both dangerous and have a mental illness. Some people still cling to the mistaken belief that suicidality means mental illness despite compelling evidence that this isn’t the case.
Thus, the result is that law enforcement should not – but still often does – detain people for suicidality alone. The standard that’s used for detention is “reasonable,” the lowest standard of evidence. Given that law enforcement aren’t mental health experts and the people they engage with are often in crisis, which mimics many symptoms of mental illness, it’s reasonable that they seek a mental health professional’s determination – or not – of mental illness.
The problem is that too many mental health professionals are ready to diagnose a mental illness in the lack of solid evidence to get someone committed. And complicating this further is that the standards for diagnosis in the DSM are notoriously broad, meaning that a person could see two mental health professionals and rarely get the same diagnosis.
Can’t Get In, Can’t Get Out
One of the perverse irrationalities about inpatient psychiatric facilities is that they are hard to get into – and hard to get out of. There are numerous, but anecdotal, reports that people can’t get into an inpatient psychiatric facility unless they’re willing to express suicidal ideation. If they’re presenting with legitimate mental health needs – that can be helped with short-term inpatient hospitalization – they are unlikely to be admitted. However, that all changes if they hint at suicidal thoughts.
Once in the facility for expressing suicidal thoughts, they may find it difficult to get out. Involuntary detention at the facility may be hard to terminate even though there are supposed to be legal safeguards. If a psychiatrist claims that your belief that you don’t have a mental illness is a side effect of your mental illness, what do you do? In many cases, the courts accept the psychiatrist’s testimony – and deprive you of your civil liberties.
Some may have noticed that I used the word “detention” for being in an inpatient psychiatric facility, a word normally reserved for prisons and jails. I do so intentionally because there’s no evidence that inpatient psychiatric hospitalization has a therapeutic effect.
Community Support
In contrast to the lack of evidence for inpatient psychiatric hospitalization, we do have evidence that some community programs do make a difference. Emergency rooms, where most people are transported for evaluation, are some of the highest cost services that we have in any part of the healthcare and behavioral healthcare systems. Community programs – which often involve volunteers – are some of the lowest cost and most effective programs that we have.
The problem is that the outcome of an emergency room visit is either inpatient psychiatric hospitalization – or discharge without follow-up. Called case management or continuity of care, helping the patient find the resources in the community that could prevent them from needing the emergency room again rarely happens. (See the SPRC article Continuity of Care for Suicide Prevention and Research.)
Perverse Incentives
It’s been 25 years since I first saw the systemic problems with our healthcare system in the US. We were working on better care for patients with diabetes – and it was a hard sell. Managed care plans knew that preventative care was better, less expensive, and had better outcomes. However, they also knew that the rate of change was so high that the likelihood that they’d have a patient next year or the year after – when their investments would pay dividends in the lives of the patients – was low. So, we struggled to get organizations to do the right thing – counter to their incentive structures.
One of the challenges in care are the lines between insurance authority, provider expertise, and patient rights. Can an insurer require that a patient take a medication prescribed for the patient’s visit to be covered by insurance? Broadly, we know that patients have the right to refuse treatment – except for psychiatric treatments. So, what happens when a psychiatrist prescribes medication that the patient refuses to take? Can insurance refuse to pay for the whole encounter? Should a provider threaten a patient, saying they must take the prescribed medication or insurance won’t pay?
Competence and Liberty
The Mind Club frames the conversation in terms of who we should defend and who we should hold accountable. It’s expressed as the degree to which someone (or something) has thoughts and feelings and the degree to which they have agency. The law’s approach and standards are different, fundamentally tangling competence with liberty. Those who have experiences and the ability to reason should be held accountable and trusted with liberty. When people can no longer comprehend good versus bad, their liberty should be surrendered for the good of society.
The Supreme Court must help us navigate the balance of the civil rights of the individual compared to the responsibilities of the state to protect its citizens. Because of this, the court is careful when considering places where the state might have a reasonable need to interfere with a person’s liberties. Thus far, the court has held that restrictions to individual rights – particularly their liberty – must be constrained to a narrow set of circumstances.
The courts have generally held that a person is considered competent until it has been shown otherwise. Thus, when we’re discussing the ability to confine someone to an inpatient facility, the state must first show that they’re no longer competent – which should be harder than it is.
Criminal Assist to Non-Criminal Act
While suicide itself has been decriminalized, assisting a suicide is still sometimes a criminal act. This strange twist is justified by the concern that someone might encourage a suicide that the person might not otherwise do. In short, while the law may accept a person’s right to self-terminate, that doesn’t mean anyone necessarily likes it.
There is still a stigma attached to death by suicide, whether it’s illegal or not. (See Stigma for more about what stigma is.) There’s still an ongoing conversation in the US about who should be allowed to assist someone in dying and what does – and does not – cross the line. While some states, like Oregon, specifically explain what is necessary to get the right to die (“Death with Dignity”), not every state has. Even in Oregon, it’s possible that someone with the same consequences – except having complied with the rules of the act – might be involuntarily treated and revived.
In other states, the question becomes whether an assisted suicide can be done by a physician or not. Additionally, the degree to which someone can assist is an open question. Is it assisted suicide if you hook someone up to a machine that they can use to end their own life, as Jack Kevorkian did? What if you just acquire the resources that are needed to die?
Does it help to be a family member of the person? Or does the potential gain to be had from the death make it more likely that you’ll get wrapped into a criminal indictment?
Undoing Suicidism explains the value of assistance – with appropriate safeguards – and the problems with the uncertainty that drives people to end up with an attempted suicide resulting in substantial disability instead of a death surrounded by friends and family.
Illegal Attempts
In a peculiar twist, some places still have suicide attempts on the books as a crime even though suicide itself has been long removed as a crime. Nevada recently changed its laws, while North Carolina and Virginia have laws on the books that criminalize an attempt – even though suicide itself is not criminalized.
However, even with suicide attempts being on the books, few jurisdictions will prosecute. Perhaps this is in part because they know that they’ll likely not get a jury to convict. Juries have repeatedly demonstrated that they will not hold people accountable to laws they can’t understand.
How to Not Get Sued
Stefan states, “Mental health professionals are not sued for their decisions or the outcomes of their decisions, but for the process (or lack of process) by which the decision is made.” This is consistent with Skip Simpson’s view in The Suicide Lawyers and Shawn Shea’s perspective in The Practical Art of Suicide Assessment. Both strongly encourage documentation, with Shea providing a specific framework for doing so.
This seems counterintuitive. Shouldn’t the outcomes – or at least the decisions the provider made – matter? The answer comes from the reality that we cannot control the outcomes. While it’s reasonable for heirs (family) to be angry at the death of their loved one, that’s not a legal standard. Similarly, decisions are based on the result of prediction of the patient’s behavior – and it’s clear that even the best clinicians aren’t good at predicting future patient behavior. What we’re left with is the ability to say whether someone met professional standards for documentation.
Strangely, clinicians who know they are working with suicidal clients are not generally sued for failing to use a research-proven approach to their care. We have B-CBT-SP, CAMS, and DBT as validated options for treatment, but clinicians aren’t sued even if they don’t use any of them.
Dying, Fast and Slow
Smoking is legal in the United States despite the very clear, negative impacts to health. It can be accurately described as killing yourself slowly. Similarly, large quantities of alcohol have their own negative impact on lifespan, and it’s completely legal for adults. As a society, we seem to have decided that it’s acceptable to kill yourself slowly.
It gets a bit less clear as we move to people who hasten their death by failing to drink or eat. Officially, patients who have no mental illness can refuse any treatment – including food and water – but sometimes doctors will ignore these desires like they’ll ignore advanced directives like do not resuscitate (DNR). In the absence of a mental illness, if it comes to a legal fight, they’ll likely lose.
However, it is acceptable to the legal system for those who are not competent to be ordered to accept treatment. The sticky point comes when we compare the standard for competence against suicidal thoughts. While some would argue that suicidality is prima facie evidence of a mental health issue, most people would disagree today. More importantly, even if there was a mental illness, not all mental illnesses confer a lack of competence. In short, for most conditions, suicidality isn’t sufficient cause for someone to be forced into treatment – consistent with the Supreme Court rulings. However, we never know because, in the end, we’re faced with Rational Suicide, Irrational Laws.