Committed

Part 4

by Clea Simon

Should Duckworth have committed the coffee lady? Should he have fought harder to win the incompetency hearing for the man who lost his toes and fingers? Is it his place to make those decisions at all?

Philosophically, the issue is confused, a symptom of a deep underlying crisis of definition, even of morals, in our view of health care. The public is torn between the old-school paternalistic style of medicine, the kind in which the doctor simply told you what was best, and a more consumer-oriented approach of comparison shopping and free choices.

In other areas of medicine, health care consumers have almost entirely made that switch. Many people who have received diagnoses of cancer read up on treatments, considering alternative therapies before deciding about radiation or chemo. For most surgery, we routinely solicit second opinions. But in the case of mental illness, the options are not so clear. When someone's judgment is impaired, does that person know how to act in his or her own best interest? Should the patient be allowed to choose, no matter what?

The debate surrounding treatment of the mentally ill is a hodgepodge of all these issues. It involves conflict between the rights of the individual and the needs of the society, and also the responsibility of the society to care for those who cannot care for themselves.

Legally, the power to sort all this out lies with the courts, and the laws are beginning to reflect the serious moral issues raised by involuntary treatment. Under Massachusetts law, a judge can hospitalize a person involuntarily for six months (with recommitment hearings held every year after that) when -- to use the legal language -- there is reason to believe that "failure to hospitalize would create a likelihood of serious harm by reason of mental illness." In other words, when Chrissie's parents feared she was suicidal, they had clear legal grounds for involuntary hospitalization, just as Duckworth would have had if the coffee lady had been threatening the people on the street. The idea of "serious harm," however, is at best murky, and as the public swings more toward a consumer-oriented approach to all health care, mental health practitioners and legislators are becoming more aware of the weight of their responsibility -- and more wary of second-guessing others' "best interests."

"It is very important for those of us who are the practitioners to remember that the only time you can deprive someone of their rights other than [when they're] jailed is to involuntarily hospitalize someone," says Marylou Sudders, commissioner of the state's Department of Mental Health. "So I always remind people that it has to be under very narrow provisions."

Even the process leading to such treatment is now being questioned. Involuntary hospitalization comes about, usually, because a doctor or hospital representative has requested it. This request leads to a 10-day waiting and observation period while the ill person is temporarily hospitalized, which is in turn followed by a period of up to two weeks during which the request for a hearing is processed. That means that in Massachusetts, an ill person can be held for 24 days before any decision is made on long-term involuntary hospitalization.

Some, including many of the mentally ill, say that is too long -- a legal version of imprisonment without trial. Many are also questioning the length of commitment periods. Because of these growing concerns with patients' civil rights, spurred at least in part by public response to stories like the Globe's, the time leading up to the trial-type hearings may soon be reduced. On October 21, a committee led by Judge Maurice Richardson, chairman of the District Court Committee on Mental Health and Retardation, released recommendations that would cut in half the time in which a person may be held before a hearing. His committee is also thinking about a recommendation to shorten the initial six-month commitment.

The mentally ill also have the option, now, to fight against commitment -- against, in other words, what their parents and doctors may think best for them. Since the 1970s, when only two physicians were necessary to sign commitment papers, laws have evolved so that commitment hearings have become more like miniature trials, complete with court-appointed attorneys for the defense. Calling doctors and sometimes family members to testify, the hospital has to prove three points: that the patient is mentally ill; that he or she presents a likelihood of harm to self or others; and that there's no less restrictive alternative.

That last clause provides a bit of leeway. Less restrictive alternatives can include group halfway houses (in which the ill have some supervision, but also are able to live in communities and exercise some freedom about their activities). Another option is a Rogers, or proxy, guardianship, in which a judge rules that a person with mental illness is incompetent to make decisions about his or her own treatment but does not necessarily need to be hospitalized. A Rogers ruling (named for the 1983 case that established such guardianships) appoints a guardian to make medication or living-situation decisions for an ill person, but otherwise allows the person to live independently. That may be a more attractive choice than hospitalization; in fact, hearings about such guardianships now make up about 60 percent of all commitment hearings, according to Stan Goldman. But this still means a loss of choice for the ill person.

As the laws stand now, nobody is happy. The mentally ill say that even guardianships deprive people of their freedom. And their family members worry that the push for expanded rights is a misguided move that will allow their loved ones to grow sicker and more at risk before they can be forced to get better. With more than 20 years on the circuit, Richardson feels his hands are often legally tied. "A lot of the time you just have to sit back and do nothing," says the judge. "You've got to wait basically until the person hits the gong enough to register danger."

Back to part 3 - On to part 5

Clea Simon's Mad House: Growing Up in the Shadow of Mentally Ill Siblings (Doubleday) was named Book of the Year by the Alliance for the Mentally Ill (Mass.)