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:
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
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