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Involuntary hospitalization: Opinions and attitudes of psychiatrists and lawyers
Involuntary Attitudes
Hospitalization: of Psychiatrists
Opinions and and Lawyers
By Y. Kumasaka and J. Stokes
I
N PREVIOUS ARTICLES, ‘I’ we noted that the participation of lawyers in decision-making regarding involuntary hospitalization of the mentally ill significantly increases the rate of out-of-court settlement and decreases the need for court hearings as a final recourse. Out-of-court settlements are of two kinds: either the psychiatrist reverses his eariier recommendation and discharges the patient, or the patient changes his mind and accepts hospitalization, which is thus not on a committed basis. At Bellevue Hospital in New York City, 130 cases, or 64% of a total of 203 patients who requested a court hearing in 1969 to contest further hospitalization at state hospitals were settled without a judicial ruling. Of these 130 cases, 63% were discharged by psychiatrists prior to the hearing or during an adjournment of it, and the remaining 37% eventually accepted hospitalization. All patients who requested a court hearing received free legal counseling and representation in the court from staff lawyers of the Mental Health Information Service, if a hearing was held. The latter was created by the revised statute for New York State in 1965. In seeking a settlement before the court hearing, these lawyers inevitably exert pressure not only on the psychiatrists to discharge patients, but, on occasion, on the patients to accept hospitalization. In advising his client not to contest hospitalization, the lawyer may either be acting on his assessment that he cannot make a court case for discharge, or he may judge that his client does indeed require hospitalization. Apart from considerations of strategy, the direction in which the lawyer will exercise pressure will be determined to some extent by his judgment as to who should be hospitalized and who should not.2 In arriving at such judgments he receives little assistance from the statutory criteria of involuntary or compulsory hospitalization. The New York statute is, as are the statutes of other states,3 very general in its terminology, and only states: “If it be determined that the patient is mentally ill and in need of retention for care and treatment, the court shall forthwith issue an order authorizing the retention of such patient for care and treatment in the hospital. . . . ” (Article 5, Section 72, paragraph 3). The outcome of a hearing case at Bellevue is undoubtedly influenced by the informal operating criteria of the lawyers, for involuntary hospitalization, that inevitably develop under these circumstances, and which may or may not conflict with the psychiatrists’ criteria. In this paper we examine the opinions and attitudes of both psychia-
From the Hospitalization Research Unit, Department of Psychtatry, New York University Medical Center, New York, N. Y. Supported by Public Health Service Grant MH 1648.5 from the National Institute of Mental Health. Yorihiko Kumasaka, M.D.: Research Assistant Professor of Psychiatry, New York University Medical Center; Study Director, Hospitalization Research Unit, Department of Psychiatry, New York University Medical Center, New York, N. Y. Janet Stokes, MA.: Ph.D. Candidate, Columbia University; Staff Sociologist, Hospitalization Research Unit, Department of Psychintry, New York University, New York, N. Y.
Comprehensive
Psychiatry, Vol. 13, No. 3 (May),
1972
201
202
KUMASAKA
AND
STOKES
trists and lawyers on involuntary hospitalization of the mentally ill and discuss the implications of our findings on both theoretical and practical levels. METHODS Thirty psychiatrists and 26 lawyers were interviewed, using a semistructured interview schedule. The 30 psychiatrists are staff psychiatrists at Bellevue Hospital, who routinely certify patients on two-physician certificates to be transferred to state hospitals. Requests for judicial review come from patients placed on this two-physician certificate status. All 11 lawyers of the Mental Health Information Service (MHIS) of the First Judicial Department were interviewed. Seven to eight of them are permanently assigned to Bellevue. Another 15 lawyers are from MHIS of the Second Judicial Department, coverage of which includes Kings County Hospital; this is a receiving hospital in Brooklyn comparable in many respects to Bellevue, a receiving hospital in Manhattan. The New York judiciary is administratively divided into four departments and MHIS also operates in four separate units with different directors and with different rules and regulations. MHIS of the first and second departments is staffed by lawyers, whereas MHIS of the third and fourth departments, covering upstate New York, is staffed primarily by social workers. Lawyers of the second department have no direct interaction with Bellevue psychiatrists, and their value in this study is as a contrasting group to lawyers of the first department, who function under sharply different regulations. First department lawyers represent the patient in court, but lawyers of the second department do not. In the second department, MHIS lawyers are primarily officers of the court and their functions are to preserve due process of law, which includes informing the patients of their rights. When a hearing is held, they arrange outside lawyers to represent the case in court, thus officially remaining neutral in the situation. Because of this functional difference between lawyers of the two departments, we thought that their private opinions and attitudes might also vary; hence the inclusion of second department lawyers in our respondents. One refusal to be interviewed, from a Bellevue psychiatrist, was encountered. Five lawyers from the more remote hospitals in the second department were not interviewed because of our limited time. The same questions were asked of each respondent, psychiatrists and lawyers alike, and were phrased in an alternating structured and open-ended fashion. Questions included the following: “Do you feel that involuntary hospitalization is an indispensable part of psychiatric practice?” (Whatever the response to this question, it was probed with “Why do you feel this way?“) “Assuming there were a good working definition of dangerousness, do you consider it a valid criterion for determining the necessity for long-term involuntary hospitalization?” “What does dangerousness of the mentally ill mean to you?”
RESULTS
Table 1 presents replies from all three groups of respondents to the question concerning indispensability of involuntary hospitalization. It is clear that two distinct attitudes are held, and also that differences in attitude are great within MHIS itself. While a majority of first department lawyers consider involuntary hospitalization Table 1. Attitude Towards
of Psychiatrists,
Involuntary
First Department
Hospitalization:
Hospitalization
Lawyers, and Second Department
Distribution
Indispensable
of Responses to:
to Psvchiatric
Practice?” First
Attitude
Department
on
Involuntary Hospitalization
Psychiatrists
Lawyers
“Is Involuntary
Lawyers
Second Department Lawyers
(%)
(X)
(%)
Indispensable,
no qualification
78.5
27.3
71.4
Indispensable,
but in very few cases only
21.4
18.2
21.5
-
36.4 18.2
7.1 -
Not indispensable Don’t know, undecided Base for percentage
28
11
14
INVOLUNTARY
Table 2. Summary
of Reasons Given by Psychiatrists,
Department Reason Attitude
Lawyers for Their Attitude
Given
Psychiatrists
to decide
Other Base for percentage *Multiple
Lawyers
Second Department Lawyers (56)
21.7
15.4
33.3
36.9
23.1
23.8
32.6
15.4
23.8
8.7
46.1
19.0
13
21
in
the patient is incompetent
and Second
(%)
(%)
dangerous cases Where patient
Lawyers,
Hospitalization*
Department
Involuntary
To protect
Involuntary
First
for
the community,
First Department
Towards
Towards
Hospitalization
To protect
203
HOSPITALIZATION
46
responses permitted.
either dispensable or necessary only in a limited number of specified cases, second department lawyers accept it without qualification. A large majority of Bellevue psychiatrists uphold the necessity of involuntary hospitalization without qualification, although a few would also greatly limit it. Not only the indispensability of involuntary hospitalization, but also the reasons given for it being indispensable are viewed differently by the three groups (Table 2). The psychiatrists see involuntary hospitalization as indispensable, primarily to protect the patient, an attitude that is also shared by first department lawyers when they accept involuntary hospitalization. Only for lawyers of the second department is there the modal reason “dangerousness to the community.” Similar to the issue of protection of the patient is that of “wardship,” or the obligation of the professional to make decisions on behalf of a patient who is not competent to make them himself. While psychiatrists stress it slightly more than lawyers, it is recognized by all three groups. Reasons given by first department lawyers for their attitude that involuntary hospitalization is dispensable indicate, at times, that in their view, a dispute between psychiatrist and patient frequently enters an area of discretionary decisions where negotiation is possible, in which, by implication, the lawyer can play a part, and, in practice, he does so quite successfully. Another frequent type of response implies a prediction that further development of alternatives to hospitalization, such as community mental health centers, would make involuntary hospitalization unnecessary: “Because I think if community mental health facilities were made available freely and expeditiously to all who need them, then the degree and type of restraint that would be needed in individual cases would be the same as in physical illness. If people know they can go to any sort of facility for prompt effective handling they would not have to go up on a ledge.” (A comment by one lawyer respondent.) These lawyers evidently base their opinion on a hypothetical future situation and not on present reality. One first department lawyer did indeed reject involuntary hospitalization categorically on ideological grounds; the remainder, however, took a flexible attitude. The issue of appropriateness of dangerousness as a valid criterion of long-term involuntary hospitalization produces a somewhat different pattern of responses (Table 3). Psychiatrists are not nearly as unanimous on this issue as they are on indispensability. The question was apparently distasteful to some psychiatrists, who either rejected the question altogether or declined to answer it in the manner in which it was
204
KUMASAKA
Table 3. Attitude Towards
of Psychiatrists,
Validity
First Department
of Dangerousness
AND
Lawyers, and Second Department
as a Criterion
for Long-term
involuntary
Lawyers
Hospitalization
First Validity
Department
of
as Criterion
Yes, a valid criterion A valid criterion for short-term, long-term, hospitalization
Second Department
Lawyers
Psychiatrists
Dangerousness
STOKES
Lawyers
(%)
(%)
(%)
42.3
-
46.6
not 19.2
18.0
26.6
No, not a valid criterion
26.9
Can’t answer in terms of question
11.5
82.0 -
26.6 -
Base for percentage
26
11
15
phrased. Nevertheless, 11 out of the total of 30 psychiatrists accepted without qualification than dangerousness is indeed a valid criterion for long-term involuntary hospitalization. In contrast, the proposition was opposed unanimously by the first department lawyers. Only two of them would concede that dangerousness justified even short-term hospitalization. Frequent reasons given were that the dangerous mentally ill should be dealt with as other dangerous persons, that is, under the criminal code of procedure: “If a person has committed an act of violence then you can treat him in accordance with the criminal laws. . . .” or that dangerousness, although it should be taken into account, should not be considered alone as a criterion for involuntary hospitalization: “Not by itself. Dangerousness plus, for instance, impaired judg ment, or dangerousness plus patient’s being in a delusional state.” Some lawyers elaborated further and stated that a preventive purpose should not be attached to psychiatric hospitalization: “If they have committed some crime they should stand trial for it, and if guilty should go to jail. If they haven’t, it’s preventive detention, which at the moment is not the law.” The distribution of responses of second department lawyers, on the other hand, is practically indistinguishable from that of psychiatrists’ responses. Bellevue psychiatrists and first department lawyers disagree almost totally again on the nature of dangerousness. Table 4 summarizes answers to the question: “What does dangerousness of the mentally ill mean to you ?” Forty-five per cent of first department lawyers feel that dangerousness of the mentally ill is a meaningless concept, and another 45% view it as a charge which must be substantiated in reference to a recent Table 4. Summary Department
of Responses of Psychiatrists,
Lawyers to:
“What
First Department
Does Dangerousness
Lawyers,
of the Mentally
and Second
Ill Mean to You7”
First Conception
of
Dangerousness Mentallv
Department of
Psychiatrists
III
Dangerousness
is a meaningless concept
Base for oercentace *One
(%)
Lawyers (%)
77.7 11.1
9.1 -
86.6 -
11.1 -*
45.5
13.3 -
must ba substantiated
by history Dangerousness
Lawyers
(%I
Dangerousness to self or others only Dangerousness depends on diagnosis
Second Department
psychiatrist
27 did state that he thought
went on to state how he used the concept on this question,
45.5
his inconsistent
11
dangerousness
in practice.
was a meaningless concept,
Since multiple
15 but then
answers were not permitted
response has not been shown in the table.
INVOLUNTARY
205
HOSPITALIZATION
specific, concrete event. In contrast, the majority of psychiatrists, some of whom were surprised that the question was even asked, refer to “dangerous to self or others.” They rarely elaborate this definition substantively, so that, in effect, it becomes a framework permitting maximal use of judgment. In other words, a patient could be dangerous in the judgment of psychiatrists even in the absence of concrete substantiating material. The perceived dangerousness of the mentally ill appears to be greater among psychiatrists than among lawyers. Lawyers of the second department again resemble Bellevue psychiatrists in their responses. DISCUSSION
The contrasting attitudes of the two groups of lawyers may derive from several factors. Among others, lawyers of the first department perform essentially dual functions, being both an enforcing agent of the law and a counselor representing the client’s interest, whereas, in the second department, the latter function is left to outside lawyers. The MHIS second department lawyer is expected to remain neutral on the issue at stake, namely, hospitalization or discharge of the patient. This difference in functions and level of involvement in the situation might give rise to differing opinions. At the same time, this does not explain why opinions of the second department lawyers closely resemble those of Bellevue psychiatrists. While not directly involved in the issue, they could still demonstrate a range of opinions. Nevertheless, these lawyers are officers of the court implementing the statutory requirement which basically accepts the compulsory hospitalization of some of the mentally ill. If a lawyer held the view, for example, of the New York Civil Liberties Union4 which categorically rejects involuntary hospitalization itself, it would be difficult for him to remain in the service even if a position were open to him. This would also apply to first department lawyers. Despite their seemingly militant position on involuntary hospitalization, only one member of the first department actually rejected it on ideological grounds. Furthermore, lawyers of the second department are scattered in various hospitals in smaller units of one to three members, owing to the huge coverage of the Second Judicial Department. In contrast, the majority of lawyers (seven to eight) of the first department are concentrated in Bellevue. Although lawyers of the MHIS are directly responsible to the Supreme Court of New York State and not to the hospital, they are physically present in the hospital on a full-time basis. Surrounded by an overwhelming number of mental health professionals, it would be difficult for members of small MHIS units not to conform to attitudes in the majority group, especially when the situation does not call for them to publicly assume definite positions that, in some cases, might be antagonistic to those held by the hospital staff. The first department lawyers’ view of involuntary hospitalization as dispensable is, in fact, based on “wishful thinking” rather than on reality. While their effectiveness as mediators, reflected in the increasing trend toward out-of-court settlement since the enactment of the present Mental Hygiene Law,’ must be acknowledged, the fact still remains that 36% of court hearings in 1969 at Bellevue eventually required judicial rulings. Thus, a 100% success of out-of-court settlements appears to be most unlikely. Some patients would still reject the advice of the lawyer and insist on seeing the judge, and/or some psychiatrists would find the lawyer’s suggestions unacceptable. While facts from actual practice do not offer encouragement to the lawyers’ views on
206
KUMASAKA
AND
STOKES
dispensability, neither do they exactly support the contention of those psychiatrists who see the need of involuntary hospitalization without qualification. Involuntary hospitalization, or hospitalization over the objection of the patient, as both psychiatrist and lawyer apparently connote it, is in practice limited to exceptional cases. In 1969, it was only 2% of a total 2400 transfers to civil state hospitals from Bellevue, whose uncompromising objection was finally overruled by the judge and who were, therefore, committed. However, this minute proportion of commitments must be understood in the context of the high rate of discharge among patients who request hearings, the large majority (82%) of whom were discharged by psychiatrists prior to the hearing or during an adjournment of it. The judges were responsible for only the remaining 18% of total discharges. If psychiatrists are projecting their inability to persuade the patient to accept hospitalization, this might explain their broad support for the concept of involuntary hospitalization. On the other hand, discharge as a form of out-of-court settlement is a way of reducing the need for involuntary hospitalization; furthermore, these discharges were carried out by the psychiatrists themselves, even though in some cases this might be the result of suggestions or pressure by the lawyer. Perhaps the psychiatrists are uncomfortable with the reality, or perhaps they frequently discharge a patient with extreme reluctance. Prior to the revision of the law, psychiatrists were prepared to take cases to court, and the large majority of hearings resulted in a commitment. ’ In other words, patients currently discharged would most likely have been committed under old law procedures. The psychiatrists’ initial recommendation of hospitalization could have been meant primarily for the sake of the patient or for the sake of others. Discharge of patients in the latter category, without the final judicial ruling, might subject the psychiatrist to blame for a premature decision. The controlled clinical evaluation of patients who request hearings at Bellevue, however, indicated that patients with severe mental disorganization and patients with a recent history of violent or suicidal behavior do not contribute to the high rate of discharge among patients who request hearings.’ The high rate is, in other words, due to selective discharge of those patients who are neither severely disorganized, nor, according to their history, violent or suicidal, i.e., of patients who, in the conventional sense of the words, are in need of psychiatric treatment. Psychiatrists at Bellevue apparently resist discharging dangerous patients insofar as dangerousness is defined as “dangerous to self or others” substantiated by the facts. Nevertheless, recall that psychiatrists by implication left room for the exercise of judgment. In this sense, some of the discharged patients could have been dangerous in the judgment of psychiatrists even though they did not have a recent violent or suicidal history. If they were not discharged, we could expect a confrontation of psychiatrists and lawyers in the court; since the lawyers only accept dangerousness as a “charge” to be substantiated by reference to concrete events. Furthermore, these lawyers made it clear in the interview that they do not condone considering dangerousness in connection with hospitalization. Therefore we might assume that the lawyers presented considerable opposition to sending dangerous patients to civil state hospitals, even if the patient were only dangerous according to their own criteria. Some of this opposition should be revealed as issues of civil commitment in the court. Transcripts of 5.5 consecutive court hearings at Bellevue held over a period of 9 months from 1969 to 1970 were examined by two impartial evaluators with a view
INVOLUNTARY
HOSPITALIZATION
207
to eliciting issues between psychiatrists and lawyers. * The two evaluators found altogether 45 separate instances when the testifying psychiatrist and counsel engaged in discussion or dispute. Contrary to our expectation, however, only three out of the 45 instances were reported to pertain to the issue of dangerousness. The remaining 42 concerned a variety of other matters, such as the functioning level of the patient, the abnormality of the behavior, etc. Nevertheless, further examination of the transcripts discloses that lawyers almost routinely raise the question to the psychiatrists as to whether the patient is dangerous or not. In most cases, no discussion resulted because psychiatrist and lawyer agreed that the patient was dangerous, or not dangerous, the latter being more frequently the case. When both professionals agreed that the case was “not dangerous,” dangerousness was usually meant in the sense “directly assaultive or suicidal.” Some psychiatrists did not agree with this rather concrete definition of dangerousness and expressed their objection to it; however, in most instances these objections failed to become an issue or dispute with the lawyer, either because the psychiatrists themselves did not press the matter hard enough, or the lawyer was simply unimpressed and did not challenge. In such cases the psychiatrists felt that the patient was dangerous, although a factual basis for their view was lacking, or they inferred dangerousness from the level of confusion and disorganization of the patient. In the latter case, the lawyer recognized the condition but did not consider it within the frame of dangerousness. Thus substantial differences on the question of dangerousness are documented in the court hearings, in spite of the fact that dangerousness rarely reaches the level of an issue. On the whole, the result is a sort of compromise by both psychiatrists and lawyers, both perhaps attempting to conform to societal expectations. The psychiatrist tries not to rely too heavily on his judgment alone, possibly in order to avoid criticism for railroading the mentally ill. The lawyer similarly tries to avoid being accused of preventing hospitalization of dangerous mentally ill patients. Thus, in spite of the problems of defining dangerousness of the mentally ill on the theoretical level, there is not much problem on the practical level, when lawyers are involved in the process of involuntary hospitalization. Although we have noted a definitional difference on dangerousness between psychiatrists and lawyers on the theoretical level, one of the most striking negative findings of our study is the fact that need of psychiatric treatment, or need of “care and treatment” as the statute puts it, was not emphasized on the theoretical level, nor, as we have seen, elicited from the practice as a factor necessitating involuntary hospitalization. Need for treatment was mentioned by both psychiatrists and lawyers but usually in a somewhat cursory fashion. The two major criteria of involuntary hospitalization as practiced at Bellevue Hospital we have shown to be protection and dangerousness. The implicit purpose of hospitalization in such cases is custodial care or incarceration, both of which lack an active
*Transcripts of court hearings of each of 55 cases were read independently by the two evaluators, one psychiatrist and one lawyer, both of whom are impartial to Bellevue Court hearings. These evaluators were then asked to elicit issues between the professional participants in the hearings. Out of 45 reported issues, 15 were pointed out by both evaluators and the rest by either evaluator alone. Elicited issues and judgmental discrepancies of the two evaluators are discussed in detail in reference 6.
208
KUMASAKA
AND
STOKES
therapeutic connotation. It is to be expected that lawyers would emphasize the civil liberties aspect of patients’ rights, but it would also have been understandable if psychiatrists gave high priority to the patients’ need for treatment. The current system and experience could have changed this. Bellevue psychiatrists, after years of practice under the revised Mental Hygiene Law, could have reached the conclusion that it is never worth forcing the patient into psychiatric treatment. ACKNOWLEDGMENT The authors comments.
are grateful
to the psychiatrists
and lawyers concerned
for their thoughtful
REFERENCES 1. Zitrin, A., Herman M., and Kumasaka, Y.: New York’s mental hygiene law-A preliminary evaluation. Ment. Hyg. 54:28, 1970. 2. Kumasaka, Y.: Lawyers’ role in involuntary commitment-New York’s experiment. Ment. Hyg. In press. 3. Lindman, F. T., and McIntyre, D. M., Jr.: The Mentally Disabled and the Law. Chicago, University of Chicago Press, 1961, p. 15.
4. Fhagen vs. Miller, 306 F. Supp. 634 (S.D.N.Y. 1969), and 312 F. Supp. 323 (S.D.N.Y. 1970). 5. Kumasaka, Y., Stokes, J., and Gupta, R. K.: Criteria of involuntary hospitalization. Arch. Gen. Psychiat. (Chicago) In press. 6. Kumasaka, Y., and Gupta, R. K.: Lawyers and psychiatrists in the court: Issues on civil commitment. Maryland Law Review. In press.
Hospitalization: of Psychiatrists
Opinions and and Lawyers
By Y. Kumasaka and J. Stokes
I
N PREVIOUS ARTICLES, ‘I’ we noted that the participation of lawyers in decision-making regarding involuntary hospitalization of the mentally ill significantly increases the rate of out-of-court settlement and decreases the need for court hearings as a final recourse. Out-of-court settlements are of two kinds: either the psychiatrist reverses his eariier recommendation and discharges the patient, or the patient changes his mind and accepts hospitalization, which is thus not on a committed basis. At Bellevue Hospital in New York City, 130 cases, or 64% of a total of 203 patients who requested a court hearing in 1969 to contest further hospitalization at state hospitals were settled without a judicial ruling. Of these 130 cases, 63% were discharged by psychiatrists prior to the hearing or during an adjournment of it, and the remaining 37% eventually accepted hospitalization. All patients who requested a court hearing received free legal counseling and representation in the court from staff lawyers of the Mental Health Information Service, if a hearing was held. The latter was created by the revised statute for New York State in 1965. In seeking a settlement before the court hearing, these lawyers inevitably exert pressure not only on the psychiatrists to discharge patients, but, on occasion, on the patients to accept hospitalization. In advising his client not to contest hospitalization, the lawyer may either be acting on his assessment that he cannot make a court case for discharge, or he may judge that his client does indeed require hospitalization. Apart from considerations of strategy, the direction in which the lawyer will exercise pressure will be determined to some extent by his judgment as to who should be hospitalized and who should not.2 In arriving at such judgments he receives little assistance from the statutory criteria of involuntary or compulsory hospitalization. The New York statute is, as are the statutes of other states,3 very general in its terminology, and only states: “If it be determined that the patient is mentally ill and in need of retention for care and treatment, the court shall forthwith issue an order authorizing the retention of such patient for care and treatment in the hospital. . . . ” (Article 5, Section 72, paragraph 3). The outcome of a hearing case at Bellevue is undoubtedly influenced by the informal operating criteria of the lawyers, for involuntary hospitalization, that inevitably develop under these circumstances, and which may or may not conflict with the psychiatrists’ criteria. In this paper we examine the opinions and attitudes of both psychia-
From the Hospitalization Research Unit, Department of Psychtatry, New York University Medical Center, New York, N. Y. Supported by Public Health Service Grant MH 1648.5 from the National Institute of Mental Health. Yorihiko Kumasaka, M.D.: Research Assistant Professor of Psychiatry, New York University Medical Center; Study Director, Hospitalization Research Unit, Department of Psychiatry, New York University Medical Center, New York, N. Y. Janet Stokes, MA.: Ph.D. Candidate, Columbia University; Staff Sociologist, Hospitalization Research Unit, Department of Psychintry, New York University, New York, N. Y.
Comprehensive
Psychiatry, Vol. 13, No. 3 (May),
1972
201
202
KUMASAKA
AND
STOKES
trists and lawyers on involuntary hospitalization of the mentally ill and discuss the implications of our findings on both theoretical and practical levels. METHODS Thirty psychiatrists and 26 lawyers were interviewed, using a semistructured interview schedule. The 30 psychiatrists are staff psychiatrists at Bellevue Hospital, who routinely certify patients on two-physician certificates to be transferred to state hospitals. Requests for judicial review come from patients placed on this two-physician certificate status. All 11 lawyers of the Mental Health Information Service (MHIS) of the First Judicial Department were interviewed. Seven to eight of them are permanently assigned to Bellevue. Another 15 lawyers are from MHIS of the Second Judicial Department, coverage of which includes Kings County Hospital; this is a receiving hospital in Brooklyn comparable in many respects to Bellevue, a receiving hospital in Manhattan. The New York judiciary is administratively divided into four departments and MHIS also operates in four separate units with different directors and with different rules and regulations. MHIS of the first and second departments is staffed by lawyers, whereas MHIS of the third and fourth departments, covering upstate New York, is staffed primarily by social workers. Lawyers of the second department have no direct interaction with Bellevue psychiatrists, and their value in this study is as a contrasting group to lawyers of the first department, who function under sharply different regulations. First department lawyers represent the patient in court, but lawyers of the second department do not. In the second department, MHIS lawyers are primarily officers of the court and their functions are to preserve due process of law, which includes informing the patients of their rights. When a hearing is held, they arrange outside lawyers to represent the case in court, thus officially remaining neutral in the situation. Because of this functional difference between lawyers of the two departments, we thought that their private opinions and attitudes might also vary; hence the inclusion of second department lawyers in our respondents. One refusal to be interviewed, from a Bellevue psychiatrist, was encountered. Five lawyers from the more remote hospitals in the second department were not interviewed because of our limited time. The same questions were asked of each respondent, psychiatrists and lawyers alike, and were phrased in an alternating structured and open-ended fashion. Questions included the following: “Do you feel that involuntary hospitalization is an indispensable part of psychiatric practice?” (Whatever the response to this question, it was probed with “Why do you feel this way?“) “Assuming there were a good working definition of dangerousness, do you consider it a valid criterion for determining the necessity for long-term involuntary hospitalization?” “What does dangerousness of the mentally ill mean to you?”
RESULTS
Table 1 presents replies from all three groups of respondents to the question concerning indispensability of involuntary hospitalization. It is clear that two distinct attitudes are held, and also that differences in attitude are great within MHIS itself. While a majority of first department lawyers consider involuntary hospitalization Table 1. Attitude Towards
of Psychiatrists,
Involuntary
First Department
Hospitalization:
Hospitalization
Lawyers, and Second Department
Distribution
Indispensable
of Responses to:
to Psvchiatric
Practice?” First
Attitude
Department
on
Involuntary Hospitalization
Psychiatrists
Lawyers
“Is Involuntary
Lawyers
Second Department Lawyers
(%)
(X)
(%)
Indispensable,
no qualification
78.5
27.3
71.4
Indispensable,
but in very few cases only
21.4
18.2
21.5
-
36.4 18.2
7.1 -
Not indispensable Don’t know, undecided Base for percentage
28
11
14
INVOLUNTARY
Table 2. Summary
of Reasons Given by Psychiatrists,
Department Reason Attitude
Lawyers for Their Attitude
Given
Psychiatrists
to decide
Other Base for percentage *Multiple
Lawyers
Second Department Lawyers (56)
21.7
15.4
33.3
36.9
23.1
23.8
32.6
15.4
23.8
8.7
46.1
19.0
13
21
in
the patient is incompetent
and Second
(%)
(%)
dangerous cases Where patient
Lawyers,
Hospitalization*
Department
Involuntary
To protect
Involuntary
First
for
the community,
First Department
Towards
Towards
Hospitalization
To protect
203
HOSPITALIZATION
46
responses permitted.
either dispensable or necessary only in a limited number of specified cases, second department lawyers accept it without qualification. A large majority of Bellevue psychiatrists uphold the necessity of involuntary hospitalization without qualification, although a few would also greatly limit it. Not only the indispensability of involuntary hospitalization, but also the reasons given for it being indispensable are viewed differently by the three groups (Table 2). The psychiatrists see involuntary hospitalization as indispensable, primarily to protect the patient, an attitude that is also shared by first department lawyers when they accept involuntary hospitalization. Only for lawyers of the second department is there the modal reason “dangerousness to the community.” Similar to the issue of protection of the patient is that of “wardship,” or the obligation of the professional to make decisions on behalf of a patient who is not competent to make them himself. While psychiatrists stress it slightly more than lawyers, it is recognized by all three groups. Reasons given by first department lawyers for their attitude that involuntary hospitalization is dispensable indicate, at times, that in their view, a dispute between psychiatrist and patient frequently enters an area of discretionary decisions where negotiation is possible, in which, by implication, the lawyer can play a part, and, in practice, he does so quite successfully. Another frequent type of response implies a prediction that further development of alternatives to hospitalization, such as community mental health centers, would make involuntary hospitalization unnecessary: “Because I think if community mental health facilities were made available freely and expeditiously to all who need them, then the degree and type of restraint that would be needed in individual cases would be the same as in physical illness. If people know they can go to any sort of facility for prompt effective handling they would not have to go up on a ledge.” (A comment by one lawyer respondent.) These lawyers evidently base their opinion on a hypothetical future situation and not on present reality. One first department lawyer did indeed reject involuntary hospitalization categorically on ideological grounds; the remainder, however, took a flexible attitude. The issue of appropriateness of dangerousness as a valid criterion of long-term involuntary hospitalization produces a somewhat different pattern of responses (Table 3). Psychiatrists are not nearly as unanimous on this issue as they are on indispensability. The question was apparently distasteful to some psychiatrists, who either rejected the question altogether or declined to answer it in the manner in which it was
204
KUMASAKA
Table 3. Attitude Towards
of Psychiatrists,
Validity
First Department
of Dangerousness
AND
Lawyers, and Second Department
as a Criterion
for Long-term
involuntary
Lawyers
Hospitalization
First Validity
Department
of
as Criterion
Yes, a valid criterion A valid criterion for short-term, long-term, hospitalization
Second Department
Lawyers
Psychiatrists
Dangerousness
STOKES
Lawyers
(%)
(%)
(%)
42.3
-
46.6
not 19.2
18.0
26.6
No, not a valid criterion
26.9
Can’t answer in terms of question
11.5
82.0 -
26.6 -
Base for percentage
26
11
15
phrased. Nevertheless, 11 out of the total of 30 psychiatrists accepted without qualification than dangerousness is indeed a valid criterion for long-term involuntary hospitalization. In contrast, the proposition was opposed unanimously by the first department lawyers. Only two of them would concede that dangerousness justified even short-term hospitalization. Frequent reasons given were that the dangerous mentally ill should be dealt with as other dangerous persons, that is, under the criminal code of procedure: “If a person has committed an act of violence then you can treat him in accordance with the criminal laws. . . .” or that dangerousness, although it should be taken into account, should not be considered alone as a criterion for involuntary hospitalization: “Not by itself. Dangerousness plus, for instance, impaired judg ment, or dangerousness plus patient’s being in a delusional state.” Some lawyers elaborated further and stated that a preventive purpose should not be attached to psychiatric hospitalization: “If they have committed some crime they should stand trial for it, and if guilty should go to jail. If they haven’t, it’s preventive detention, which at the moment is not the law.” The distribution of responses of second department lawyers, on the other hand, is practically indistinguishable from that of psychiatrists’ responses. Bellevue psychiatrists and first department lawyers disagree almost totally again on the nature of dangerousness. Table 4 summarizes answers to the question: “What does dangerousness of the mentally ill mean to you ?” Forty-five per cent of first department lawyers feel that dangerousness of the mentally ill is a meaningless concept, and another 45% view it as a charge which must be substantiated in reference to a recent Table 4. Summary Department
of Responses of Psychiatrists,
Lawyers to:
“What
First Department
Does Dangerousness
Lawyers,
of the Mentally
and Second
Ill Mean to You7”
First Conception
of
Dangerousness Mentallv
Department of
Psychiatrists
III
Dangerousness
is a meaningless concept
Base for oercentace *One
(%)
Lawyers (%)
77.7 11.1
9.1 -
86.6 -
11.1 -*
45.5
13.3 -
must ba substantiated
by history Dangerousness
Lawyers
(%I
Dangerousness to self or others only Dangerousness depends on diagnosis
Second Department
psychiatrist
27 did state that he thought
went on to state how he used the concept on this question,
45.5
his inconsistent
11
dangerousness
in practice.
was a meaningless concept,
Since multiple
15 but then
answers were not permitted
response has not been shown in the table.
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HOSPITALIZATION
specific, concrete event. In contrast, the majority of psychiatrists, some of whom were surprised that the question was even asked, refer to “dangerous to self or others.” They rarely elaborate this definition substantively, so that, in effect, it becomes a framework permitting maximal use of judgment. In other words, a patient could be dangerous in the judgment of psychiatrists even in the absence of concrete substantiating material. The perceived dangerousness of the mentally ill appears to be greater among psychiatrists than among lawyers. Lawyers of the second department again resemble Bellevue psychiatrists in their responses. DISCUSSION
The contrasting attitudes of the two groups of lawyers may derive from several factors. Among others, lawyers of the first department perform essentially dual functions, being both an enforcing agent of the law and a counselor representing the client’s interest, whereas, in the second department, the latter function is left to outside lawyers. The MHIS second department lawyer is expected to remain neutral on the issue at stake, namely, hospitalization or discharge of the patient. This difference in functions and level of involvement in the situation might give rise to differing opinions. At the same time, this does not explain why opinions of the second department lawyers closely resemble those of Bellevue psychiatrists. While not directly involved in the issue, they could still demonstrate a range of opinions. Nevertheless, these lawyers are officers of the court implementing the statutory requirement which basically accepts the compulsory hospitalization of some of the mentally ill. If a lawyer held the view, for example, of the New York Civil Liberties Union4 which categorically rejects involuntary hospitalization itself, it would be difficult for him to remain in the service even if a position were open to him. This would also apply to first department lawyers. Despite their seemingly militant position on involuntary hospitalization, only one member of the first department actually rejected it on ideological grounds. Furthermore, lawyers of the second department are scattered in various hospitals in smaller units of one to three members, owing to the huge coverage of the Second Judicial Department. In contrast, the majority of lawyers (seven to eight) of the first department are concentrated in Bellevue. Although lawyers of the MHIS are directly responsible to the Supreme Court of New York State and not to the hospital, they are physically present in the hospital on a full-time basis. Surrounded by an overwhelming number of mental health professionals, it would be difficult for members of small MHIS units not to conform to attitudes in the majority group, especially when the situation does not call for them to publicly assume definite positions that, in some cases, might be antagonistic to those held by the hospital staff. The first department lawyers’ view of involuntary hospitalization as dispensable is, in fact, based on “wishful thinking” rather than on reality. While their effectiveness as mediators, reflected in the increasing trend toward out-of-court settlement since the enactment of the present Mental Hygiene Law,’ must be acknowledged, the fact still remains that 36% of court hearings in 1969 at Bellevue eventually required judicial rulings. Thus, a 100% success of out-of-court settlements appears to be most unlikely. Some patients would still reject the advice of the lawyer and insist on seeing the judge, and/or some psychiatrists would find the lawyer’s suggestions unacceptable. While facts from actual practice do not offer encouragement to the lawyers’ views on
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dispensability, neither do they exactly support the contention of those psychiatrists who see the need of involuntary hospitalization without qualification. Involuntary hospitalization, or hospitalization over the objection of the patient, as both psychiatrist and lawyer apparently connote it, is in practice limited to exceptional cases. In 1969, it was only 2% of a total 2400 transfers to civil state hospitals from Bellevue, whose uncompromising objection was finally overruled by the judge and who were, therefore, committed. However, this minute proportion of commitments must be understood in the context of the high rate of discharge among patients who request hearings, the large majority (82%) of whom were discharged by psychiatrists prior to the hearing or during an adjournment of it. The judges were responsible for only the remaining 18% of total discharges. If psychiatrists are projecting their inability to persuade the patient to accept hospitalization, this might explain their broad support for the concept of involuntary hospitalization. On the other hand, discharge as a form of out-of-court settlement is a way of reducing the need for involuntary hospitalization; furthermore, these discharges were carried out by the psychiatrists themselves, even though in some cases this might be the result of suggestions or pressure by the lawyer. Perhaps the psychiatrists are uncomfortable with the reality, or perhaps they frequently discharge a patient with extreme reluctance. Prior to the revision of the law, psychiatrists were prepared to take cases to court, and the large majority of hearings resulted in a commitment. ’ In other words, patients currently discharged would most likely have been committed under old law procedures. The psychiatrists’ initial recommendation of hospitalization could have been meant primarily for the sake of the patient or for the sake of others. Discharge of patients in the latter category, without the final judicial ruling, might subject the psychiatrist to blame for a premature decision. The controlled clinical evaluation of patients who request hearings at Bellevue, however, indicated that patients with severe mental disorganization and patients with a recent history of violent or suicidal behavior do not contribute to the high rate of discharge among patients who request hearings.’ The high rate is, in other words, due to selective discharge of those patients who are neither severely disorganized, nor, according to their history, violent or suicidal, i.e., of patients who, in the conventional sense of the words, are in need of psychiatric treatment. Psychiatrists at Bellevue apparently resist discharging dangerous patients insofar as dangerousness is defined as “dangerous to self or others” substantiated by the facts. Nevertheless, recall that psychiatrists by implication left room for the exercise of judgment. In this sense, some of the discharged patients could have been dangerous in the judgment of psychiatrists even though they did not have a recent violent or suicidal history. If they were not discharged, we could expect a confrontation of psychiatrists and lawyers in the court; since the lawyers only accept dangerousness as a “charge” to be substantiated by reference to concrete events. Furthermore, these lawyers made it clear in the interview that they do not condone considering dangerousness in connection with hospitalization. Therefore we might assume that the lawyers presented considerable opposition to sending dangerous patients to civil state hospitals, even if the patient were only dangerous according to their own criteria. Some of this opposition should be revealed as issues of civil commitment in the court. Transcripts of 5.5 consecutive court hearings at Bellevue held over a period of 9 months from 1969 to 1970 were examined by two impartial evaluators with a view
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207
to eliciting issues between psychiatrists and lawyers. * The two evaluators found altogether 45 separate instances when the testifying psychiatrist and counsel engaged in discussion or dispute. Contrary to our expectation, however, only three out of the 45 instances were reported to pertain to the issue of dangerousness. The remaining 42 concerned a variety of other matters, such as the functioning level of the patient, the abnormality of the behavior, etc. Nevertheless, further examination of the transcripts discloses that lawyers almost routinely raise the question to the psychiatrists as to whether the patient is dangerous or not. In most cases, no discussion resulted because psychiatrist and lawyer agreed that the patient was dangerous, or not dangerous, the latter being more frequently the case. When both professionals agreed that the case was “not dangerous,” dangerousness was usually meant in the sense “directly assaultive or suicidal.” Some psychiatrists did not agree with this rather concrete definition of dangerousness and expressed their objection to it; however, in most instances these objections failed to become an issue or dispute with the lawyer, either because the psychiatrists themselves did not press the matter hard enough, or the lawyer was simply unimpressed and did not challenge. In such cases the psychiatrists felt that the patient was dangerous, although a factual basis for their view was lacking, or they inferred dangerousness from the level of confusion and disorganization of the patient. In the latter case, the lawyer recognized the condition but did not consider it within the frame of dangerousness. Thus substantial differences on the question of dangerousness are documented in the court hearings, in spite of the fact that dangerousness rarely reaches the level of an issue. On the whole, the result is a sort of compromise by both psychiatrists and lawyers, both perhaps attempting to conform to societal expectations. The psychiatrist tries not to rely too heavily on his judgment alone, possibly in order to avoid criticism for railroading the mentally ill. The lawyer similarly tries to avoid being accused of preventing hospitalization of dangerous mentally ill patients. Thus, in spite of the problems of defining dangerousness of the mentally ill on the theoretical level, there is not much problem on the practical level, when lawyers are involved in the process of involuntary hospitalization. Although we have noted a definitional difference on dangerousness between psychiatrists and lawyers on the theoretical level, one of the most striking negative findings of our study is the fact that need of psychiatric treatment, or need of “care and treatment” as the statute puts it, was not emphasized on the theoretical level, nor, as we have seen, elicited from the practice as a factor necessitating involuntary hospitalization. Need for treatment was mentioned by both psychiatrists and lawyers but usually in a somewhat cursory fashion. The two major criteria of involuntary hospitalization as practiced at Bellevue Hospital we have shown to be protection and dangerousness. The implicit purpose of hospitalization in such cases is custodial care or incarceration, both of which lack an active
*Transcripts of court hearings of each of 55 cases were read independently by the two evaluators, one psychiatrist and one lawyer, both of whom are impartial to Bellevue Court hearings. These evaluators were then asked to elicit issues between the professional participants in the hearings. Out of 45 reported issues, 15 were pointed out by both evaluators and the rest by either evaluator alone. Elicited issues and judgmental discrepancies of the two evaluators are discussed in detail in reference 6.
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therapeutic connotation. It is to be expected that lawyers would emphasize the civil liberties aspect of patients’ rights, but it would also have been understandable if psychiatrists gave high priority to the patients’ need for treatment. The current system and experience could have changed this. Bellevue psychiatrists, after years of practice under the revised Mental Hygiene Law, could have reached the conclusion that it is never worth forcing the patient into psychiatric treatment. ACKNOWLEDGMENT The authors comments.
are grateful
to the psychiatrists
and lawyers concerned
for their thoughtful
REFERENCES 1. Zitrin, A., Herman M., and Kumasaka, Y.: New York’s mental hygiene law-A preliminary evaluation. Ment. Hyg. 54:28, 1970. 2. Kumasaka, Y.: Lawyers’ role in involuntary commitment-New York’s experiment. Ment. Hyg. In press. 3. Lindman, F. T., and McIntyre, D. M., Jr.: The Mentally Disabled and the Law. Chicago, University of Chicago Press, 1961, p. 15.
4. Fhagen vs. Miller, 306 F. Supp. 634 (S.D.N.Y. 1969), and 312 F. Supp. 323 (S.D.N.Y. 1970). 5. Kumasaka, Y., Stokes, J., and Gupta, R. K.: Criteria of involuntary hospitalization. Arch. Gen. Psychiat. (Chicago) In press. 6. Kumasaka, Y., and Gupta, R. K.: Lawyers and psychiatrists in the court: Issues on civil commitment. Maryland Law Review. In press.