A Three Pronged Approach to Mental Health System Change

Jim Gottstein, JD
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I thought I would begin my blogging career with a description of how I see three elements that reinforce each other in ways that can lead to meaningful system change. These are: (1) Changing Public Attitudes, (2) Creation of Other Choices (Alternatives),  and (3) Strategic Litigation (Honoring Rights). The way they reinforce each other might be depicted as follows:

The Transformation Triangle

 

Sometimes, because of the context, I will use “Alternatives” instead of “Other Choices” and “Honoring Rights” instead of “Strategic Litigation.

Changing Public Attitudes <—> Creation of Alternatives

For example, debunking the myths among the general public that

(i) psychiatric drugs are the best treatment,
(ii) locking people up and drugging and electroshocking them against their will is an
effective strategy,  and
(iii) people do not recover after a diagnosis of serious mental health illness

can greatly increase the public’s willingness to invest in non-coercive, non-drug, recovery oriented choices or alternatives.

More specifically, the public generally believes that the drugs, on the whole, are great medical advances and improve people’s lives.   This is not true, as so dramatically and convincingly demonstrated in Anatomy of an Epidemic.  To the extent that the public comes to understand this, it will support the funding of non-drug approaches that have been proven to be so much superior, such as the Open Dialogue approach in Finland and the Soteria approach proven up in the 1970’s.

The same sort of process applies to the myths that locking people up and drugging them against their will is an effective strategy.  The reason the public supports this is the notion that people who are diagnosed with serious mental illness are potentially crazed killers who must be locked up and made to take their drugs to protect society.  However, it is not true that people diagnosed with serious mental illness are more dangerous than the general public.  Coercion (force) is very counterproductive and quite understandably increases, rather than decreases violence.  The late, revered, Dr. Loren Mosher, who was the chief of Schizophrenia Research at the National Institute of Mental Health in the 1970’s and also ran the Soteria study, testified to this in the 2003 Myers case.  One of the things he said is that because he made a point of establishing a trusting relationship with his patients, in all of his career he had never had to involuntarily commit anyone.   Sarah Porter, a psychiatric survivor who has been very successful in launching and implementing non-coercive programs in New Zealand also testified about this in another PsychRights case in 2008.

It is also well-established that psychiatric drugs increase, rather than decrease violence.  See,  Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course, starting at page 50/100.

To the extent the public can be made to understand this, more support for non-drug, non-coercive, alternatives will be generated.  I will say at this point, that I do know some people who find even the neuroleptics (misnomered “antipsychotics”) helpful and the negative effects tolerable.  I don’t have any quarrel with such people taking the drugs.  My quarrel is with forcing those who find them unhelpful and/or the negative effects intolerable, to take them on the grounds that they are crazy for believing this.  In all cases, people should be told the truth about the drugs, including that other approaches have been proven to be far more helpful for many people without the negative effects.

Back to the matter at hand. To the extent that successful, non-coercive, recovery oriented alternatives can be fostered, it will help to debunk the myths that the drugs are the best treatment, coercion increases public safety, and people don’t recover after being diagnosed with serious mental illness.  Great efforts should be made to publicize the success of the Open Dialogue approach in Finland and the Soteria approach pioneered in San Jose in the 1970’s, as well as other non-drug, non-coercive programs that are showing success.

Strategic Litigation (Honor Rights) <—-> Other Choices (Alternatives)

One of the fundamental principles of United States’ constitutional law is that the government can only infringe on someone’s “fundamental” rights (1) if doing so fulfills a compelling state interest and will achieve its purpose, and (2) there is no less restrictive or intrusive method for achieving that goal.  Being confined in a psychiatric hospital and being free of unwanted psychiatric drugs have both been held to be a fundamental right.  Thus, in order for involuntary commitment and forced (court ordered) psychiatric drugging to be constitutional, they must be both in the person’s best interests and the least restrictive (for involuntary commitment) or least intrusive (for forced drugging) means to be legal.  This is why I saw Mad in America as an evidentiary roadmap to challenging forced drugging.  It demonstrated both that the forced drugging is not in the person’s best interests and that there are less intrusive alternatives. So does Anatomy of an Epidemic.

What this legal principle means is that if there is a feasible less intrusive alternative to the forced drugging, the state must provide it or let the person go.  This is exactly what the Alaska Supreme Court held in Bigley v. Alaska Psychiatric Institute.   Asserting the state must either provide the less intrusive alternative or let the person go when representing people faced with forced drugging creates pressure on the state to provide the less intrusive alternative.   At the same time it is difficult to get judges to let people go on the grounds that there is a feasible less intrusive alternative, that is not in fact available.  This leads to disingenuous decisions that there is no feasible less intrusive alternative.   (In a forthcoming blog, I will discuss some of the ways in which the legal system is disingenuous, but in the meantime one might read my 2008 law review article, Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course.)

However, to the extent that there are other choices or alternatives in existence as less restrictive or intrusive alternatives to involuntary commitment and forced drugging, the courts are far more likely to honor people’s rights to them.   To illustrate, let’s say that a person facing involuntary commitment and forced drugging asserts to the court that a Soteria type of program is a less restrictive/intrusive alternative, but there is no Soteria type program in existence to which the person can go.  The court is likely to find that the Soteria type program is not feasible  because the judge’s only option if (s)he finds a Soteria type program  is a feasible alternative is to let the person go.  However, if there is a Soteria type program to which the person could go, the judge is much more likely to honor the person’s right to such a less restrictive/intrusive alternative.

Changing Public Attitudes <—-> Honoring People’s Rights

In my view, the biggest reason why people are involuntarily committed and drugged against their will when the legal requirements for doing so does not exist is that the judges and even the lawyers appointed to represent psychiatric defendants, believe the myth “if this person wasn’t crazy, she would know locking her up and making her take these drugs is good for her” and therefore don’t let her pesky rights get in the way of doing the “right thing.”   In other words, the judges and lawyers reflect society’s views, and to the extent that society’s views change, the judges and lawyers’ responses will change to suit.

To illustrate, in order to be involuntarily committed, the state must prove by “clear and convincing evidence” that as a result of a mental illness or defect the person is dangerous to himself or others.   Clear and convincing evidence is more than a “preponderance of the evidence,” meaning more than the 50% that is required in civil litigation, but less than “beyond a reasonable doubt,” which is required in criminal actions.   With respect to dangerousness, it is well-established that psychiatrists’ predictions of violence are totally unreliable.  See,  Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course, starting at page 40/90.  My estimate is that no more than 10% of  involuntary commitments actually meet the legal standard for commitment.

Forced drugging even less because as  Mad in America and Anatomy of an Epidemic   show, it is virtually impossible to truly prove by clear and convincing evidence that the drugging is in the person’s best interest.   In most cases, there will also be a feasible less intrusive alternative that could be employed.

If this is the case, why are so many people being locked up and drugged against their will? Again, it is because the judges and the lawyers assigned to represent people facing involuntary commitment and forced drugging believe the conventional wisdom that it is in the person’s best interest and necessary to increase public safety, neither of which is true.  So, to the extent that public attitudes can be changed to recognize that locking people up and drugging them against their will is very harmful and even counterproductive to public safety, people’s rights to the least restrictive/intrusive alternative are more likely be honored.

 It is a little harder to see how strategic litigation can change public attitudes, but the best example of that I can think of is the issue of racial segregation.  Before the seminal case of   Brown v. Board of Education decided by the United States Supreme Court in 1954, wide swaths of American society believed segregation was acceptable.  The United States Supreme Court had even previously ruled that “separate but equal,” was constitutional.   In my view, Brown v. Board of Education, which held segregation unconstitutional, overruling the “separate but equal” doctrine, played a pivotal role in changing public attitudes in the United States so completely that it is now hard to find anyone that believes segregation is acceptable.

This has appeared to work some in Alaska.  I think it is fair to say that  winning the Myers case and to a lesser extent Bigley, have contributed to a shift in attitude from “psychiatric drugs for everyone, forever, of course,” to a recognition that there should be other choices.

 The Alaska Experience

This three-pronged approached has been utilized in Alaska with some success.  Mental Health policy makers now accept that there should be other choices, although the implementation of this has a long way to go and there is resistance from some quarters.  I have written and periodically update Report on Multi-Faceted Grass-Roots Efforts To Bring About Meaningful Change To Alaska’s Mental Health Program with a somewhat detailed description of these efforts and results for those who are interested in learning more about what is happening in Alaska.

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12 COMMENTS

  1. What would staff in the system do if the “patients” on a first break received a safe environment and listening therapy instead of strong medications and a label that horrifically alters their entire future? What if the staff worked with people of whom 80% got well and had a life in the community with meaning?
    Is there fear that they would have no customers and lose their jobs?
    Is there fear that people would die with their rights on as NAMI and Torrey spokespersons like to proclaim?
    I work in Consumer Affairs for a mmanaged care company. They want to deliver the least amount of what is proven to work–and they haven’t read Whitaker’s latest work to know what is not working but is in fact disabling.

    • “Is there fear that they would have no customers and lose their jobs?”

      Of course they do. Mental Health treatment has become a major jobs industry and nearly everybody who works in it knows that their job relies on the current beliefs and treatments of mental disorders. My biggest fear is knowing just how dangerous this is in the current economy. People, especially children, are being turned into cash cows. Being sucked into the psych system involuntarily for things that they wouldn’t have been 10 or 15 years ago. You’ve got parents having their children taken away for refusing to put their kids on drugs at the schools request and then everyone from Child Protective Services, to the psychiatrists, to the social workers and therapists to the foster homes PROFITING!

      Making any change in mental health care in the U.S. is going to be an almost impossible task because the war will be with a work force, and they’ll have the APA, NIMH and Big Pharma on their side while they, along with the pro-psychiatry pill poppers, create the illusion that they represent the people.

    • I share with you my comment to an article by Noami Wolf
      ” The streets of 2012″
      Al Jazeera
      Wrong conclusion. United States is becoming one huge psychiatric hospital. The changes of the system are following patterns of American mental health system where you can be discredited and killed at any time by “certified” hands and the Truth is discredited with the court order of lie. Nobody is paying attention to violations by American bio-psychiatry and its deceptive and fraudulent diagnostic system as a model for controlling people but it is punitive psychiatry in China, Russia and elsewhere that takes care very effectively of descendents. Disorders are to discredit not to help to cure.
      Huge segment of population is being discredited with diagnosis and is rapidly growing. Medicine has became the form of population control and psychiatry is it’s most direct execution front. Noami is looking for model of repression in geography-history when we are actually living in the future now. It is not coming from China or Denmark as she concluded. It is coming from within the current system: psychrights.org. No meaningful changes can occur until all citizens are treated as Human. Name of the system doesn’t matter if the principal of action is not to preserve God given human rights to LIFE,LOVE AND TRUTH.
      All systems against human principals should be abolished and offenders prosecuted.

  2. I agree with everything you say.
    I think you need to synthesized your concept with ONE POINT OF INTERVENTION like 911.
    It will be like above the”system change”
    a number to dial: 119.
    From this point of collecting information you will be able to monitor all the problems for policy change and enforcement actions.
    Help is out there but is fragmented and not systematized. You need to channel to proper agency and hold them accountable. Tons of money is spend for inadequate treatments, ineffective enforcement and corrupted judiciary. All those people must be reminded that they have a BIG BOSS, who is THE PEOPLE!

  3. Another piece to your diagram is: “proper diagnosis”. Over 2.6 Million Americans will sustain a disabling “Traumatic Brain Injury” this year. Another 2.4 will go undiagnosed and untreated, may of which are children (especially sports) CDC. A brain injury affects almost all aspects of the brain, but from a mental health perspective; especially moods, emotions, judgement and personality.
    Too many, way too many, psychiatrists, psychologists and primary care physicians (our nation’s mental health bastion) do not know about, understand or appreciate the damage caused in the brain.
    We must get it right! I have seen literally hundreds of individuals diagnosed as “schizophrenic”, “bi-polar”, PTSD, Clinical Depression, etc. after a fall, significant automobile accident or abuse… and now our returning veterans. Treatment protocols for brain injury can be similar but generally speaking ARE NOT; especially with co-morbid conditions [aka substance abuse, loss of body functions, etc.].
    Our medical professionals and public must understand that there is a bio-chemical upset within the brain as a result of trauma. This is a serious disease that can manifest itself with multiple symptoms; especially mental disorders!
    Kind Regards,
    an Advocate for People and Families Living with Brain Injury

  4. The Pharmaceutical giants make 2.4 billion dollars from the people. They are motivated by money, not by health and heart. If they were motivated by health and heart there would be no forced drugging and anger, fear and control around administering the drugs. The doctors that do this are Drug Pushers just like the Drug Pushers on the Street – there is NO difference. And the Drug Pushers are also the Social Workers and Teachers and Nurses that take the order and force it upon the victim. Take a lesson in integrity and dignity, the right to be human and have a choice. I am a mother that was abused for 1 year by the Psychiatry Doctors at the Hospital, the Social Workers, the Children’s Protection Agency of the Social Services and the Crown Prosecutor. After 1 year of torture I saved my child. The only way to STOP THEM is to have a law that is very clear that all people of all ages no matter what their condition is that they are not to be forced by any authority, agency, government worker or family member to take Pharmaceuticals. The human being has the right to choose and no one owns the human but themself. I am appalled at the lack of respect, dignity of all those that force pharmaceuticals to the young, the middle aged and the elderly. Quite frankly, I am afraid to get old, because I know if they don’t change the Law, they will diagnosis my oldness as a mental illness and throw a pill in my tea or shoot up my arm with some kind of pycho drug to help, oh poor little old me, and then take a cut from my pension to pay for helping oh poor little old me. Well, leave me alone, I am a human being, no one ever has the right to give me any drug, touch my body, take my money, or help poor little old me without my permission!!! I am a MAD MOTHER! AND NO ONE WILL EVERY BOTHER MY CHILD THAT I SAVED THIS YEAR FROM THE GOVERNMENT WORKERS that cared about the process and the paycheck while bullying me and my child. When we did not consent we were bullied! That is Wrong!

  5. Jim, congrats for beginning this enlightening blog. I hope in between your busy time defending mentally ill and justice for them, you can continue your contribution, even if with a short article. How good it is if the little streams join into a river before evaporating in the air. Do you know there is a network of critical psychiatry in Britain with similar goals, where first I heard about you from them, and are you aware that the influential British Psychological Society in its Response to the American Psychiatric Association regarding DSM-5 Development that it had “more concerns than plaudits” (http://apps.bps.org.uk/_publicationfiles/consultation-responses/DSM-5%202011%20-%20BPS%20response.pdf). During last half a century many great figures have entered the arena to change the coercive, traditional psychiatry to a more humanistic way of treating with this kind of disability of the man but at the end only coercive and traditional psychiatry has remained. Even in the European guidelines for the implementation of human rights, mentally people have been excepted of enjoying an equal rights to other human. It says, “due to unsoundness of the mind.” And exercise of their rights is due to approval of a doctor. Legislators were not confronted with a skilled controversy that such a gauge actually is not at the disposal of any doctor yet. Controversies are dismissed by the legislators as the “Hippies” and radicals and cafeteria discussions of a handful non-professionals (and recently as the dissemination of scientology).

  6. I agree with the article posted. I have to say that I am using psychiatric medication that does keep me well and I can tolerate the side effects of the drugs. As for involuntary admission,this is not a call to be taken lightly and difficult for families to go through it but may be necessary until they are stabilized. Human rights are obviously important so people dont get trapped in the system.

  7. Keep the light shining on these 3 prongs as people every day are waking up to the big deception regarding psych meds and the increasing disability with their use.

    Robert Whitaker gave us an update last week here in Portland, OR as to things that have transpired since Anatomy of an Epidemic was published in 2010. Besides the backlash and attempts at discrediting him that obviously did not work to silence the information-the next steps are the most inspiring. While people like you and Whitaker are chipping away at the system-badly needed-the rest of us on the ground are now in a position to use our creativity-to think outside the box-we have to! And it is scary and exciting at the same time. Here in Portland we call it the Rethinking Psychiatry movement and I am so looking forward to meeting you at the symposium in May as our keynote speaker.

    Hearing about others like Dr Ted Sundin from southern Oregon, creating a bipolar group that will do their medication tapering together and find new ways toward wellness, these kinds of examples inspire us. We can go ahead and do something new and possibly useful to alleviate suffering and invite a thriving life, because the assumption has been unhooked-we are no longer taking that bait that psych meds are THE answer. Now we are free to go try other things-let our neuroplasticity work to form new plans and ideas, create new habits!

    My proposal for a workshop on getting relationship tools into attendees hands-as an effort to get stress lowered (move out of adrenalin driven responses for example) and thereby be of support to anyone facing life’s challenges-was accepted for this year’s Rethinking Psychiatry symposium. This is my niche,the gardening of relationships, but the reality is that I recall myself and others who have had miserable relationships at one time or another and how much that drove depression and anxiety states and even suicidality. We can do something about this.
    It seemed to me to be one of those things like basic nutrition-we ought to be exposed to the expertise-get it out of the experts only hands and into the lives of folks to make life easier. I want relationships to be a safe place to land in the storm, the place where love blooms. So now that I have been listening to all these other solutions being proposed out there in this new movement it has me creating new options for people to get the tools on an ongoing basis-other than typical counseling offers. Let your imagination run wild a bit and see what you all come up with. We can make it happen!

  8. Could a writ of mandamus not be filed against the ADA for refusal to disclose findings of established and wide spread prejudice that would have established mental illness as a suspect class? Their refusal and widely quoted denial of finding “no prejudice” in this respect cost those affected money, freedoms,and denied them due process and equality before the law. Otherwise, could it not be argued as a 1983 and with a claim of qualified immunity because Congress actually established the proof of constitutional protection with their findings. Further, their repeated denial of the prejudice they knew to exist seems clear enough to establish to a room of lawyers and lawmakers that hiding the information was important actively hide and misuse their position of power to manipulate the american people causing harm and creating right stagnation. Malice could be argued due to the extremely large donations from the pharmaceutical companies but that might overstep, but the malicious and deliberate denial of rights, due process, freedom, of those who can not defend themselves, is malicious.