Law, psychiatry, and morality: Unpacking the muddled prolegomenon

InternatmW Journal of Law and Psych&y, Pnnted I” the U S.A All rights reserved

VoI 9. pp

l-36.

1966 CopyrIght

0160.2527/66 $3 00 + 00 1966 Pergamon Journals Ltd

Law, Psychiatry, and Morality: Unpacking the Muddled Prolegomenon Laurence R. Tancredi* and David N. Weisstub**

After 20 years of teaching law and psychiatry at Harvard Law School, Dr. Alan Stone, a psychiatrist by training, has collected some of his seminal writings to compile Law, Psychiatry, and Morality.’ The essays included in this book address a wide range of topics, from the role of psychiatry in the political process to the relationship between psychiatry and morality. They represent, as Dr. Stone states in his preface, the distillation of his thoughts on major problems in psychiatry and law. The book is particularly notable because it contains his reflections, not only as a psychiatrist who has played a leading role in academic law and psychiatry in the United States, but also as the former President of the American Psychiatric Association, from which unique vantage point he was able to observe the interaction between psychiatry, and law and politics during a lively period in the history of American psychiatry. Although his career has spanned two professions for many years, Dr. Stone has never participated in forensic psychiatry in the traditional clinical sense. He has always maintained the position of an academic concerned about legal psychiatric matters, while at the same time struggling in his extensive writings to develop a framework for understanding these problems. His work has been central to psychiatry’s articulation of its responses to the legal decisions and legislative reforms which have had a crucial impact on psychiatric theory and practice since the mid 1960s. In this essay we have attempted to extrapolate the five conceptual themes around which the book is structured. These themes-professional integrity, liberalism and paternalism, political questions in psychiatry, operation of psychiatric duty, and implications of a psychiatrized morality - are basic to an understanding of psychiatry, law, and morality. Psychiatric

Purism: Stone’s Case for Professional

Integrity

Forensic psychiatry becomes the subject of Stone’s examination of professional integrity in psychiatry: Stone argues that until we have resolved the “puristic conflicts” in psychiatric meaning, psychiatrists should stay out of the courtroom *Kraf[ Eidman Professor of Medicine and the Law and Director, Health Law Program, Univerity of Texas Health Science Center at Houston, Suite 901. 1200 Hermann Pressler Drive, Houston, TX 77030. **Professor of Law, Osgoode Hall Law School of York University, Toronto and Titulaire Professor of Psychiatry, Universite de Montreal, 3419 rue Simpson, Montreal (Quebec), Canada H3G 256. ‘A. STONE. LAW, PSYCHIATRY, AND MORALITY (1984).

LAURENCE

2

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and DAVID N. WEISSTUB

because they cannot achieve normal scientific standards of truth. He is not convinced that the distinction between “testifying on the ultimate question” and giving the scientific facts makes any sense in justifying psychiatric testimony. We see this position explicated in his treatment of psychoanalytical facts where he criticizes the scientific standards in psychiatry used by Goldstein, Freud, and Solnit’ in their work on psychological versus biological parenthood, and says that psychiatry is an art rather than a science.3 On the other hand, Stone states that “it is no disgrace to work at a primitive science.“4 Stone also probes the added problems of a psychiatrist being placed in the position of double agent, acting for “the other side.” He argues that even when the psychiatric clinician informs the patient forthrightly that he has been engaged to perform a task which could adversely affect the patient’s interest, the manipulative aspect of psychiatry can easily distort the patient’s composure. As Stone puts it “it is no accident that good clinicians are often emotionally sensitive human beings who inspire personal trust.“” He explores the manifold contradictions that arise as a result of psychiatry’s divergent roles within the legal system, roles which stem from highly varied presuppositions about the nature of forensic truth. Only once does Stone resort to dialectical analysis, and that is, interestingly, in his treatment of forensic psychiatry.’ For Stone, however, ultimately the ethical prescription for doctors should remain simple- the obligation to help and avoid harm, not unlike the code of St. Thomas Aquinas, who based his natural law philosophy on doing good and avoiding evil.’ Although Stone contradicts himself elsewhere, he does state, with some certainty, “But as physicians treating patients, we know what the ethical struggle is. We know the boundaries of the ethical debate.“” What does he mean by this statement? He posits the view that in ordinary psychiatric practice the ethical issues have a way of being clarified even if there are some contradictions in roles assumed by the profession. But his main point is that “when we turn our skills to forensic psychiatry, when we serve the system of justice, we can no longer agree on the boundaries of the debate.“’ This distinction between general psychiatric practice and forensic psychiatry does not seem to hold up under close scrutiny. There are many activities associated with the general practice of psychiatry that are equally in conflict from an ethical point of view. The general psychiatrist is frequently involved in decisions in family matters regarding custody, where choices are not obvious; or a decision to commit a patient to a state institution, which may be medically justified though it will remove the patient from a close family relationship; and in treating patients who ‘.I, GOI.DSTtlN, ‘.A. Y7ONE,

A. FRlzUD

6r A. SOI.NIT.

BEYOND

THE, RtST

INlERtST

01, THE CHILD

(1973).

r-rr,ro note I, at 66.

‘id. ‘Id. 31 67. ‘ZId. at 64-73. ‘BASIC

WRITINGS

OF ST. THOMAS

ACQUINAS

type of natural Ian set M’ei$\tub, Law uncl Ados: 12 U.B.C.L.

REV. 225 (1978); Neilscn, Emminurion

1.. I;ORURl

44 (1959).

‘A, “Id.

STONE.

SII,I)‘U note

I, ill

67.

(A. Pcgis cd. 1945). For critiques of thi\ tauloiogical

Smw

H~storrccrl K~flwtion.r

o,f/hP Thomistic

on the Nuturc

of Auihorii.bl,

Theor.v of Nui~rrul A4orul Law, 4 NAT.

LAW,

PSYCHIATRY,

AND

MORALITY

3

are overwhelmed with compelling urges such as drug addiction, sexually aggressive behavior, etc. In all of these situations the psychiatrist’s judgment is not simply based on medical ethics (helping the ill and avoiding harm), but inevitably involves a balancing of competing values. For example, no clear cut guidelines exist in psychiatry for assisting in the decision of who should have custody of a child.‘O The general psychiatrist may recommend one party over the other, but the basis for that recommendation stems more from his individual values regarding the rearing of children than from clear-cut scientific facts.” Stone sets about the task of explicating a number of positions adopted by forensic psychiatrists to explain their general view with respect to their theory of practices: At the outset, let me state what I think the boundary problems are. First, there is the basic boundary question. Does psychiatry have anything true to say to which the courts should listen? Second, there is the risk that the forensic psychiatrist will go too far and twist the rules of justice and fairness to help the patient. Third, there is the opposite risk that the forensic psychiatrist will deceive the patient in order to serve justice and fairness. Fourth, there is the danger that forensic psychiatrists will prostitute the profession, as they are alternately seduced and assaulted by the power of the adversarial system. Finally, as one struggles with these four issues (Does one have something true to say? Is one twisting justice? Is one deceiving the patient? Is one prostituting the profession?), there is the additional problem that forensic psychiatrists seem to be without any clear guidelines as to what is proper and ethical. In this regard I shall be commenting on (1) the good clinical practice standard, (2) the scientific standard, (3) the truth and honesty standard, and (4) the adversary standard.” Stone is extremely cynical about what he calls the standard of “good clinical judgment” and the “scientific subspecialty standard.“13 In a case involving the latter, the honest psychiatrist should not testify, according to Stone, because he can never be sure of protecting himself against pressures that will distort the truth. I4 “Good clinical judgment” is so subjective a standard that Stone really dismisses it out of hand. Absolute ethical prescriptivism (the establishing of authoritative rules and regulations), which would allow forensic psychiatrists to universalize their standard of testimonials, is so abstract that Stone contends that Child-Cusfody Adjudication: Judicial Functions in rhe Face of Indeterminancy, 39 LAW & CON226 (1975); Seegenerally Oster, Custody Proceedings: A Study of Vague and Indefiinite StanFAM. L. 21 (1965); Note, Developments in the Law-the Consritution and rhe Fabmil.v,93 HARV.

‘UMnookin, TEMP.

PROBS.

dards, 5 J. L. REV.

1156 (1980).

“Litwack,

Gerber,

& Fewer,

The Proper Role of Psychology in Child Cuslody Dispules, 18 J.

269 (1979-80). “A.

STONE,

“Id.

at 64-6.

“Id.

at 66.

sup-a note

1, at 58.

FAM.

L.

4

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and DAVID

N. WEISSTUB

it is useless for the real world.” There remains for Stone a model of the pragmatic psychiatrist who has only the desire to be honest, to say what he believes, and to bolster his professional ego to subvert the adversary system’s intervention into his inner sanctum of professional integrity.16 This position is also troubling for Stone because, ultimately, he does not believe that there are any ethical standards in forensic psychiatry that are not truly relativistic or subjective.” In a case such as that of Dr. Grigson, who gained a reputation in Estelfe v. SmithI and Barefoot v. Estefle’” for testifying in capital murder trials, and for routinely favoring the death penalty once he had determined the accused to be a remorseless psychopath, what would Stone’s position be with respect to the moral conduct of the testifier? In discussing Grigson, Stone unfortunately reduces the concept of truth to a matter of sworn testimonyZO-giving it a sense which appears to be different from the nature of truth in the models which he critiques,2’ where he supposedly uses truth in the scientific sense, to describe ideas that have empirical or clinical data validity. We never find out from Stone what other sense of truth might be involved in a concept of professional integrity. In fact, a whole set of ethics could be built on a theory of scientific truth tying in other concepts such as fairness and equity.22 Stone’s analysis does not pursue these possibilities. Stone’s presentation of the various truth models that are entertained by forensic psychiatrists with respect to their own testimony and roles cannot be unraveled satisfactorily because it consists basically of a series of straw men which Stone himself does not take seriously.23 The four models are: 1) the good clinical practice 68-Y.

“Id.

31

“,lrl.

at 72.

“Id.

21 69-71.

‘“E\telle

\. Smith,

“‘Uaret’oor “‘A.

STONL,

“Id.

ill 57-73.

“There

451 U.S. 45-l (IYXI).

\. E5retl.

463 U.S.

w,wcr note

880 (19X3).

I, at 70.

has btzen a gt-eat deal 01’ focu\

in rtxenl

years on the I\ISIIC 01 honesty

rclalion5hip

of the5c notions

10 equity

dcrerminant

of the openness

of Ihe prOl‘e\\iOt18t-clit’llt

of the wa! sood\ \\ork\

arc to be distributed

specifically

(1984);

concerned

MEDICINE

AND

with

ON THE addre\$ing

LYINti:

ETHICS

MORAL

MORAL

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has cmet-ged from rewnt BETRAYERS

JUSTICE

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t’lucnced

JUSTICE

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justice

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of equity. \,,,~/v

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to \\hatc\er

rewurce5

PRIVATE

OF REASONS conGderalions

area\ 01 w&it

LIFE

of rcwarch

For a discu\\ion

not benefit

OF MEDICAI.

(1978);

from

in medical

rewarch.

see J. RAWL.S,

ofdi\tributi\e

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Ihal

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A THEORY

would

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literature

on vxiety.

Sre \+‘. BROAD

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SECRETS:

underpinnings

(1973);

in Ihe dil-ection

can bc under\rood

S. HOK,

FOR ACTION

i\ pwsible.

19X1) to the relationships.

implications

the rheoretwal

thaw

ETHICS

there i\ a growing

and their

of thi\

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of professional

(1983). In addition

of t‘raud and deception

L’\~CII~ [hi\

\\ould

a\ welt a\ t’a1rnc\\. note I. ;,I 70.

AND

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ranges from

& T. Scanlon

in a wide variety

the rewlt\

mighr be channeled

in o[hcr

T. Nagel,

mact-o-ethical

topic

A THEORY

(1’982). Furthermore.

A THEORY

with Ihi\

tr uIh.”

It-uth a\ an c’swnlial

and, in the broadel

Cohen.

REVELATION

(1966). Icor illustration,

lack of rcwurcc\

(M.

of truth

and “wenlif~c

or G2nliiic

dealing

R. VEATCH.

IN PlJl3LIC AND

iu theit- personality

limited

(xc

are importanl.

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“A.

OF THE

(1‘971); D. RICHARDS,

DISTRIBUTIVE

ethk

PHILOSOPHY

& N. WADE. economic\

relariorrshlp ‘The literaltIre

address distortions

OF CONCEALMENT

the issue of xientil’ic

re\ts on Ihc’ importance

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recent books of Sisscla Bok which Sw S. BOK,

and fairncs5

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1wt h

LAW, PSYCHIATRY,

AND MORALITY

5

standard, which argues that the underlying value problems in forensic psychiatry also apply to clinical practice generally and, furthermore, since psychiatrists constantly make value judgments in their treatment of patients these should also be acceptable for the courtroom; 2) the scientific standard, which limits the testimony of forensic psychiatrists to that which is scientifically accurate; 3) the standard of truth, which in its pure sense would imply some notion of “absolute” truth, but in a modified sense refers to what the forensic psychiatrist honestly believes to be the truth; and 4) the adversarial standard, in which forensic psychiatrists argue that their role in the courtroom is to present the best possible argument for their case. They expect that the process itself will sift through bias and lead to a truthful resolution. These models are espoused by Stone’s friends and colleagues whom he portrays as engaging in an internal dialogue,24 during which they presumably enjoy the knowledge that their notions of truth are being distorted so that a meta-understanding emerges for their own contemplation. But this dialogue, a second order level of understanding, cannot be taken out of this personal context. It does not have enough intellectual substance because there are no real examples given that would distinguish one position from another (are they mutually exclusive?) and the conceptual dimensions of the various positions are never articulated. Stone’s objective, by his own admission, is more modest, “But, if I have made my friends into straw men it was to make clear to you that my ideas are part of an intellectual dialogue with them.“25 If these positions on the most pressing ethical issues about the integrity of forensic psychiatry are reduced to unclear parodies, in themselves just teasing references to the lack of ethical and professional criteria for truth in forensic psychiatry, what are we left with? Stone’s actual position never emerges, and, unlike Socrates, he offers neither evidence of an ethical world lurking behind the cut and thrust of inquiry nor a set of arguments that are the brunt of his gadflying. Stone comes close to saying that there is such a high risk of immorality in forensic psychiatry that there is, if not a prima facie case to be made, at least frequent association between forensic psychiatry and untenable behavior.26 From a causal point of view this is close to an argument on constant conjunction, which “‘Stone, The Ethical Boundaries of Forensic Psychiatry: A View From rhe Ivory Tower, 12 BULL. AM. ACAD. PSYCHIATRY & L. 209 (1984). See also Watson, Response From a Straw Man, 12 BULL. AM. ACAD. PSYCHIATRY & L. 221 (1984); Applebaum, Psychiatric Ethics in the Courtroom. 12 BULL. AM. ACAD. PSYCHIATRY & L. 225 (1984); Modlin, The Ivory Tower v. The Market Place, 12 BULL. AM. ACAD. PSYCHIATRY & L. 233 (1984); Zonana, Forensic Psychiatry: Critique of a Critique, 12 BULL. AM. ACAD. PSYCHIATRY & L. 237 (1984); Sadoff, Practical Ethical Problems of the Forensic Psychiatrist in Dealing wirh Attorneys, 12 BULL. AM. ACAD. PSYCHIATRY & L. 243 (1984); Weinstein, How Should Forensic Psychiatry Police Itself? Guidelines and Grievances: The AAPL Committee in Ethics, 12 BULL. AM. ACAD. PSYCHlATRY & L. 289 (1984). 2’A. Stone, supra note 1, at 70. ‘“The conceptual difficulty with this idea is that Stone does not identify the various ways to understand the relationship between forensic psychiatric practices and untenable behavior. It would seem that there are three concepts underlying this relationship that must be teased out. Firstly, is Stone suggesting that what forensic psychiatry doe, in practice, particularly as it applies in a courtroom, is immoral? Or, alternatively, is he taking the position that what is done by the forensic psychiatrist is untenable and therefore immoral? If the latter, then we have to know what is meant by untenable behavior, particularly what are the measuring devices for determining the nature and extent of what is appropriate behavior. Or, finally, is he in fact suggesting

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may not draw a careful line between what forensic psychiatrists do and the moral misbehavior that flows directly from their practices, but rather simply reflects the fact that in cases where forensic psychiatry is practiced, there is a concomitant unethical praxis. In addition, Stone criticizes the adversary system which, because of its inevitable partisanship, he thinks reduces psychiatric testimony to rhetoric.27 He tells us nothing of what non-partisan testimony by forensic psychiatry might look like in the event that the rules of an adversary system were revised. He simply assumes, given the degraded quality of psychiatry within the adversary system, that even if there are standards of professional integrity, these standards cannot be maintained when forensic psychiatrists become enmeshed in the legal system. What precisely is Stone telling us? He assumes a puristic stand, which he never that the outcomes of the process engaged in by forensic psychiatrists are untenable and, therefore, immoral? Unfortunately, he provides no systematic method for prescinding the elements inherent in a statement asserting the linkage between forensic psychiatric activities and untenable behavior. An illustration of the difficulties posed by this differentiation can be seen in an explicit example from an area of technological development that is becoming particularly important in the forensic psychiatry field, i.e., the use of chemical agents for castration of those convicted of sexual psychopathology. Returning to the potential role of the forensic psychiatrist in this context, the first question would be whether the expert functions in his role in the courtroom in an untenable manner. To address this one wjould have to look at the broader process of the legal system and examine how his role is understood at that level. If he is expected to simply provide information, is that any different than any other testifier \\ho acts as an expert? It might be argued that the morality of the behavior really rests more on the way in \\hich the information is uted than on the expert who is providing it. Might the forensic psychiatrist meet his moral obligations by providing, along with information on chemical castration, a warning of the extent to which there are limitations on the data that he possesses and imparts? Another kind of role for the forensic psychiatrist might be a more directive one, I.P., strongly asserting the extent of his knowledge without disclosure of its potential fallacies. Again, much of the morality of the issue may rest on the extent to which courts will use this information to bring about changes in the treatment of offenders. If, in fact, the forensic psychiatrist rightly determines that in most case, courts will automatically take his advice, allowing him to assume a determinative role in decisions, then a whole different series of question will need to be asked to examine the morality and appropriateness of his directive stance in light of his real knowledge and the traditional structure of the legal process. The second major question deals with the relationship between the forensic psychiatrist and immorality. Two issues are important here: first is the issue of personal efficacy, i.e., the wishes of the offender vis-&\is options such as chemical castration; second is the issue of the medical efficacy of the treatment being proposed. This second major question deals with the untenability of the behavior (assuming we accept Stone’s characterization) and it5 association with immorality as it appliec to the relationship between the forensic psychiatrist and offender. For a detailed discussion of the medical and personal efficacy issues, see Tancredi & Weisstub, Technology Assessmenl: Its Role in Forrmic Psychiufry and the Case of Chemical Cusirarion, 8 INT’L J. L. & PSYCH 257 (1986). In effect there are a range of medical questions that would need to be asked to provide information that would help us examine the morality of the forensic psychiatrist’s position, especially in relation to the offender, should the psychiatrist have a more determinative role in the court room. The third issue addresses the question of the outcomes that are to be achieved through the forensic psychiatrist’? participation in the courtroom. Again, one would have to look at the scientific effectiveness and efficacy from a purely medical model perspective, and to societal interests involved (i.e. the desire to control sexual psychopathic behavior). From the societal perspective the question of morality would be determined by the effectivene\s of the outcome of controlling the undesirable behavior. This outcome would be \ery different from the outcome desired by the patient or offender who might be concerned about the extent to which castration would impact on sexual pleasure, or even about the psychological freedom to select preferences. Therefore, what the psychiatrist does might be untenable with regard to the patient and even the court, but be quite “moral” from the viewpoint of society. What is problematic about Stone’s observation, finally, is that he provide, us with no criteria by which to assess the various ways to look at the conduct of the forensic psychiatrist, nor doe? he provide US with any way of assessing the competing consideration5 that affect a theory of morality in this regard. “A, STONE, supra note I, at 90-l; 94.

LAW, PSYCHIATRY,

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explains in adequate detail, and condemns forensic psychiatry. His thesis could be put: There is no real scientific integrity to psychiatry; at best it may approximate the soft criteria of the social sciences,28 and at worst, an artistic-subjective *“Stone does not explicitly address what he means by the “puristic standpoint.” He has condemned forensic psychiatry for not having achieved this level, but we are given no understanding of what that means, what the underlying principles are that involve a notion of “puristics,” and consequently, we cannot really know what it means to condemn forensic psychiatry. But there are more significant questions posed in the observation made of “soft criteria of the social sciences.” These questions deal with the epistemology of not only science and the social sciences, but of morality as well. Basically, how do we know what we know about science or morality? Throughout this section Stone places a heavy emphasis on data. He portrays science in mechanistic terms, as the acquisition of data: he sees facts as defining scientific information. He takes a purely experiential view, of the acquisition of knowledge in science. In introducing the idea that psychiatry at best approximates the soft criteria of the social sciences, Stone seems to be creating an architectonic of ways of knowjing with scientific inquiry at the apex, followed by the social sciences-where there may be some data, but heavy reliance on interpretationfollowed by something called aesthetic judgment and finally, probably, expressions of taste. What appears to underlie Stone’s position is some notion that judgments in science are different (and possibly superior) to judgments in psychiatry and the social sciences, and likely judgments in law and morality. With regard to the first of these comparisons which deserves particular attention in this discussion, current notions regarding epistemology in the natural and biological sciences have introduced the pivotal function of interpretation and the perspective of the scientist. Contemporary philosophers in the area of scientific inquiry would not rely so heavily on data acquisition as the essential way of knowing in science. Kuhn, for example, seems to place a more significant role on the process of thought itself in the method of knowing scientifically. He sees as basic to meaning in science a paradigm or “disciplinary matrix” composed of relationships, decisive examples, basic categories that shape the viewpoint of the scientist in his discovery of “truth.” See T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1970). If the prevailing paradigm of thought undergoes change, perhaps through an anomalous discovery that forces a different view, the focus is shifted dramatically (though the actual objects of inquiry may not increase in number), whereby the material under study is being seen under a different light. This change is not due to the acquisition of data per se (though facts may continue to be discovered), but rather the changes are created by a new view (See T. KUHN, THE ESSENTIAL TENSION (1977), something of an epistemic progression. See M. FOUCAULT, THE ORDER OF THINGS (1970). In addition to not considering the interpretative view as important in the evolution of scientific information, Stone seems to apply criteria of data acquisition to the social sciences (and inferrentially other “nonscientific” disciplines), ignoring other important ways of knowing that are in their way as valid as data or facts, and especially applicable to the social sciences-eg. hermeneutics. From as early as the German theologian, Schleiermacher, and Dilthey, there has been a growing interest in hermeneutical analysis for knowing in the social sciences and humanities. See F. SCHLEIERMACHER, ON RELIGION (J. Oman trans. 1983); W. DILTHEY, SELECTED WRITINGS (H. Rickman ed. & trans. 1976). Seealso R. PALMER, HERMENEUTICS: INTERPRETATION THEORY IN SCHEIERMACHER, DILTHEY, HEIDEGGER AND GADAMER (1969); D. HOY, THE CRITICAL CIRCLE: LITERATURE, HISTORY AND PHILOSOPHICAL HERMENEUTICS (1978); Z. BAUMAN, HERMENEUTICS AND SOCIAL SCIENCE, (1978). Dilthey, often referred to as the father of hermeneutics, was concerned with the dialectical process (or part-whole-part movement) which addresses the content of and conditions associated with an author’s message, and in keeping with Schleiermacher, the conceptual facts that underlie interpretation. Also, he ascribed to a differentiation between the natural sciences where the meta-philosophical task is explanation-theory, and the cultural sciences which emphasize understanding-theory. Hermeneutics has become a central method of analysis for major contemporary philosophers and humanists. See J. HABERMAS, KNOWLEDGE AND HUMAN INTERESTS, (J. Shapiro, trans. 1972); P. RICOEUR, THE CONFLICT OF INTERPRETATIONS: ESSAYS IN HERMENEUTICS (D. Ihde ed. 1974); J. THOMPSON, CRITICAL HERMENEUTICS (1981). Stone also fails to mention anything about phenomenology, a type of descriptive psychology that emphasizes the function of the mind’s intentionality in affecting the representation of phenomenon. The major focus of this approach (which is closely related to hermeneutics) in aiming to understand the process of thought is the uncovering of the laws that describe the way we experience. See E. HUSSERL, THE IDEA OF PHENOMENOLOGY (S. Alston & G. Nakhnikian trans. 1973); E. HUSSERL, IDEAS: GENERAL INTRO-

El

LAURENCE

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expression of taste (aesthetic judgments).2v Moreover, given the inherent distortion of facts which the adversary system of American legal jurisprudence imposes on the content of partisan-like testimonies, honest forensic psychiatrists would refrain from entering a courtroom in order to keep within the boundaries of professional propriety, where loyalty to the patient is the paramount ethical standard. Stone seems to be making the argument that forensic testimony is unethical because it lacks integrity in most cases. It is unclear, however, whether he is saying this because otherwise good testimony (i.e. testimony that is scientifically sound and ethically justifiable) is distorted by the adversarial system, or whether there is something intrinsically wrong both with the state of scientific knowledge in psychiatry in general and forensic psychiatry in particular. Furthermore, he may be expressing the concern that there is a problem within the adversary system itself, quite apart from the aggravated aberrations which occur when conflicts arise between expert witnesses. If Stone is judging the various views expressed by forensic psychiatrists from a particular philosophical position on the nature of ethical criteria, it is critical DUCTIoN To PURE PHENOMENOLOGY (W. Gibson trans. 1931)); S. BACHELARD, A STUDY OF HUSSERL’S FORMAL AND TRANSCENDENTAL LOGIC (1968). Furthermore, there is a regretable lacuna in Stone’s work in so far as he does not respond to current debates about the interpretative function in ]a\\ and what, if any, comparisons could be made between legal and psychiatric discourse and their respective modalities of interpretations. See McIntosh, Legal Hermeneutics: a Philosophical Critique, 35 OKLA. L. REV. 1 (1982); Hermann, Phenomenology, Structuralism, Hermeneutics, rend Legal Study: Applications of Contemporary Continental Thought IO Legul Phenomenu, 36 U. MIAMI L. REV. 379 (1982); ~~.W?POS~li~~l; LJ~+’ ana Literature, 60 TEX. L. REV. 313 (1982); Friedman, Phenomenology crnd Legul Science, 2 PHENOMENOLOGY AND THE SOCIAL SCIENCES 343 (M. Natanson ed. 1973); J. SMITH & D. W’EISSTUB, THE WESTERN IDEA OF LAW (1984). “Stone fails to examine the levels of knowing associated with aesthetic judgment, though he is willing to list psychiatric thinking under this less than appropriate heading. But analysis of taste and aesthetics from the phenomenological and hermeneutical perspectives discloses ways of knowing in the world, an epistemology that has direct relevance to the ways of knowing in moral and ethical matters. See P. RECOEUR, THE SYMBOLISM OF EVIL (E. Buchanan trans. 1967); S. LANGER, FEELING AND FORM (1953); James, Emotions und Intelligence, in Piaget, PSYCHOLOGY AND EDUCATION 43-72 (V. Varma & P. Williams ed. 1976); Kohlberg, Stage and Sequence; The Cognitive-Developmental Approach to Sociukation, in HANDBOOK OF SOCIALIZATION THEORY AND RESEARCH 347-379 (D. Goslin ed. 1969); ACTIONS AND INTERPRETATION: STUDIES IN THE PHILOSOPHY OF THE SOCIAL SCIENCES (C. Hoodway & P. Pettit eds. 1978). Taste refers to an individual’s preferences. It is affectual relating to an object. One person may prefer opera, another ballet. This may be seen as an elementary level of apperceiving, and it would not appear useful to prioritize this stage of knowing as it is at the most fundamental subjective level. One could argue further that taste is so individual an experience that it is of little use in a comparison in terms of moral valuing. The next level of knowing would be the aesthetic judgment level. This ir much more complew and introduces the use of hermeneutical and phenomenological interpretation. Not all judgments at this level are commensurable, i.e., I can examine five paintings and decide using interpretative criteria that one or more is or are aesthetically superior to the others. (A Fimilar experience of valuing would be appropriate with other art forms. such as literature.) Hence values enter into aesthetic judgments much as they do moral judgments. Certain underlying criteria exist for evaluating beauty as well as morality. Ethics serves as the analytical arm of moral sensibility; it involves examination of how an individual’s calues may affect others in the social system. If these individual values are easily commensurable (there is no real distinction that exists) there may be no moral issue between persons. The problem arises when the underlying values of various persons (i.e. a forensic psychiatrist, the court, an offender, society generally) are not commensurable and options are available, though not all are available (or equally desirable) to everyone involved. Then ethical conflicts occur. Stone’s ready dismissal of taste (and aerthetic judgments) ignores the very crucial epistemological implications of this way of knowing, as against the simple itemization of data, about morality, law and psychiatry.

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that we isolate this position. Between the puristic and the relativistic viewpoints that he posits, there are many philosophies which could be considered. Stone does not tell us where he finally sits on the broad philosophical fence. It is apparent, amid the confusion, that he sits somewhere. If he told us where, we would at least be able to locate his arguments on the philosophical spectrum, and not have to leave the matter to our imagination. Instead, we are left to ask, how far reaching is Stone’s criticism of forensic psychiatry? He says, “there is no clear ethical standard that the psychiatric testifier violates. However, there is much that is troubling about his testimony.“30 When Stone states that there is no ethical standard being violated, does he mean a professional code, such as he refers to in the context of the American Psychiatric Association,31 or does he mean a philosophical-ethical standard? If Stone is an ethical relativist through and through, then he should articulate his position and apply it to forensic psychiatry clearly and honestly so that we can appreciate the nature of his criticisms and reservations. If it is not unethical to testify, for example, in capital murder trials and on a broad range of hypothetical questions, then how can Stone argue that a puristic position is superior to that of forensic testifiers, except in the limited, teasing sense of moral posturing. This is not an ethical argument. Are we to infer then, that the relativistic argument that we end up with, according to Stone, is morally bankrupt? It is hard to believe that Stone really wishes to end up here. It is also, at the philosophical level, difficult to follow his line of reasoning on the question of how one derives values from facts-an age-old debate in ethics, and one which is highly relevant to his discussion of forensic psychiatry and its prescriptive moral dimensions. In Stone’s defense, he may be discussing ethical issues merely from the point of view of psychiatry and its practices, and refraining entirely from speaking as a philosopher or legal thinker. But this is just the problem. What sense can we make of the ethical implications or presuppositions of psychiatric work in the forensic field without being aware of the philosophical assumptions that we are making? The answer is none at all. Otherwise what we are doing is using “morality” in some stretched, anti-philosophical sense; namely, we restrict our meaning to the moral positions taken by psychiatrists in their everyday work and thereby obviate any need for building a theory about these practices. To do that, however, is to do something which would be clearly unacceptable in other domains. It is akin to denying the need to have a philosophy of ethical content in legal decisions, while simultaneously talking about the relationship between law and morals. Even if we deny the need for theory, this denial itself needs philosophical unpacking. Surely this is not Stone’s position. The overall tenor of the book strongly suggests that Stone wants to have a general theory of ethical practices with respect to forensic testimony. Unfortunately, his wavering between having no position, reducing his own position to that of a relativist, and adopting a purist’s stance (which suggests absolute standards), leaves the reader confused. In short the basic philosophical questions are left exposed and unanswered. Even if we attempt a more modest appraisal of Stone’s undertaking, accepting it as an in-house chat

“‘A. STONE, at 207.

“Id.

szqwa note I, at 107.

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about how psychiatrists perceive their own practices, we are still unable to articulate the philosophical assumptions upon which these discussions are based. That would permit us at least to distinguish among them as to the criteria of truth they represent and how the link is ultimately made between science and values. Stone’s own position, apart from those that he critiques, is neither clear nor consistent. There is also some ambiguity in his analysis of what psychiatry’s relationship with the legal system represents. At critical points he seems to be arguing that because psychiatry is overwhelmed by non-scientific, prejudicial content, it is susceptible to manipulation by the legal system for that system’s own nefarious purposes, such as sentencing psychopaths to death. He implies that psychiatry should stay out of the game. If this is really what he means, then he is directing us to an ethical stance. What code then is being broken when a psychiatrist testifes in such cases? Would Stone’s admonition not be based on some principle of what is equitable for a professional to do and not to do? In which cases does psychiatry know that it can be subjected to high level distortion and should, therefore, refrain from entering the courtroom or leaving itself open to abuse by the legal system? If Stone wishes to suggest that psychiatry and its testimony can never be subjected to an ethical rule, how can he then turn and say that some of the seminal categorizations of Diagnostic Statistical Manual III on psychopathy, are racially biased.32 Is Stone, once again, attempting to straddle contradictory positions on the morality of psychiatric testimony? Stone’s general attack on forensic psychiatry is not something which shines through clearly when he deals with social control roles at various points in the book. After baiting the forensic psychiatrists, who, in their most favorable incarnation resemble a suspect 19th century doctor who routinely came to the Old Bailey33 to spot dementia as a way of absolving fellow Jews from the heinous bludgeons of anti-Semitic punishment, and who, at their worst appear to be “overzealous lackies of the state,“34 Stone portrays psychiatrists as honest brokers throughout the book. Whether it is a psychiatrist in the Soviet Union who worked closely with the state to send dissidents to the back corridors of the infamous internal security hospitals, or Dr. O’Connell, who kept Kenneth Donaldson unjustifiably incarcerated in the Chatahoochee State Hospital in Florida from 1957 to 1972,3” Stone takes his practitioners at face value. He never accuses them of lacking professional integrity. In the case of Dr. O’Connell, for example, he points out that he did not act in bad faith with respect to Donaldson,36 whereas a few pages later he refers to O’Connell’s conduct vis-a-vis the Donaldson case as a matter that appeared, in retrospect, to have been malicious.37 In fact, it was the jury that judged O’Connell to have wantonly and maliciously deprived Donaldson of his liberty. As a result, the jury awarded punitive damages.38

“O’(‘onnor

“‘A. STONE, “Id. ‘“Id.

at 114.

c. Donaldson, su,m/,

note

422 U.S. S63 (1975). I, at 112.

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Liberalism and Paternalism One of the most important themes in the current tension between law and psychiatry is addressed by Stone in his chapter “The Shell Game of Liberty and Paternalism.“39 The conflict between liberty interests and paternalism is a problem which Stone perceives in various guises. Ultimately he states what is apparently his world view on the issue of autonomy vis a vis a psychiatrized notion of social responsibility. What rightly disturbs Stone is the fact that, after the morass of legal decisions have been parsed away, one sees both a great deal of ambivalence among the legal actors, and frustration in the needy patients and practitioners of good psychiatric conscience alike. The legal interventionism of the 1960s and 70s failed, according to Stone, to develop a coherent series of policies that can realize the objective of responsive care to the ‘truly needy’.40 What did occur, although he does not put it in exactly these terms, was an unholy alliance between the left and the right; between those who felt that they were liberating mental patients from the shackles of paternalism and those on the other side of the political spectrum who, in the interest of fiscal constraint, could see the ready convenience of abandoning the mentally infirm.41 For a brief period they could congratulate each other for something which Stone claims has proved an empty victory, built on social and individual tragedy.42 As a broad assessment of the realpolitik of the mental health and legal systems, Stone’s characterization is commendable. He is not far off the mark in his explication of the contradictions that have been wrought by the overabundance of legalism introduced in the name of liberty. The shortcoming of his analysis is that he does not probe in any way the deep political and social structures which gave rise to the failure of commentators and practitioners, either in law or psychiatry, to identify these trends as they began to emerge some 15 years before.43 Was it not, or should it not have been obvious, that the legal policies lVId. at 11 1. ‘“Id. at 128. “‘Id. at 135. There is a growing body of literature that addresses the political and economic factors that have influenced the development of deinstitutionalization policies. For a selective introduction to this literature see H. FOLEY & S. SHARFSTEIN, MADNESS AND GOVERNMENT: WHO CARES FOR THE MENTALLY ILL? (1983); Morrissey, Deinstitutionalizing fhe mentally ill: Process, Outcomes, and New Directions, in DEVIANCE AND MENTAL ILLNESS (G. Beverly ed. 1982); Gruenberg & Archer, Abandonment of Responsibility for the Seriously Mentally Ill, 57 MILBANK MEMORIAL FUND Q. 485 (1979); Koenig, The Problem That Can’t be Tranquilized: 40,000 Mental Patients Dumped in City Neighborhoods, N.Y. Times, May 21, 1978, (Magazine), at 14; Drake, The Forsaken: How America Has Abandoned Troubled Thousands in the Name of Social Progress, Philadelphia Inquirer, July 24, 1982, at 18; Morrissey & Goldman, Cycles of Reform in the Care of the Chronically Mentally Ill, 35 HOSP. &COMMUNITY PSYCHIATRY 785 (1984); Chiles, The Federal Budget and the New Federalism; Trends Affecting Mental Health, 37 AM. PSYCHOLOGIST 835 (1982); Felton & Shinn, Ideology and Practice of Deinstitutionalization, 37 J. SOC. ISSUES 158 (1981); Kiesler, Mental Hospitalsand Alternative Care: More Politics Than Economics, 12 APA MONITOR 9 (1981); ALTERNATIVES TO MENTAL HOSPITAL TREATMENT (L. Stein&M. Test eds. 1978); Shadish, Lessons From the Implementation of Deinstitutionalization, 39 AM. PSYCHOLOGIST 725 (1984); and for a timely update of the aftermath of deinstitutionalization policies and their relationship to current fiscal constraints see Goldman & Morrissey, The Alchemy of Mental Health Policy: Homelessness and the Fourth Cycle of Reform, 75 AM J. PUB. HEALTH 727 (1985). ‘“See A. STONE, supra note I, at 133-160 for Stone’s general reaction to the politics of abandonment. “‘See A. SCULL, DECARCERATION: COMMUNITY CAL VIEW (1977); P. SEDGWICK, PSYCHOPOLITICS:

TREATMENT AND THE DEVIANT: A RADILAING, FOUCAULT, GOFFMAN, SZASZ, AND

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were simplistic and that the victories of some of the leading cases were based, even then, on fiscal realities? What were the motivating forces behind the work of public interest lawyers which precipitated a process of rapid, sometimes profoundly unreflective change in the initial phases?44 Furthermore, what was the nature of these lawyer’s relationships with establishment psychiatry and with government planners in these earlier periods? Was there an implicit collusion between the two systems as they began to develop progressive policies which alleviated them of deeper social responsibilities? Were there elements of bad faith in the work of the early reformers which could have been exposed? Were some of the members of the very same group who now criticize the castles built in sand responsible for their initial construction? Who were the honest brokers at different points in time, in either the law or psychiatry camp?45 Can we now re-read the literature of the period and identify the critical interactions that gave rise to the major decisions that have realigned the field, with its attendant problems? Is there a danger that the current “prudentialism” which we are seeing in the mood of the 1980s is going to produce another kind of shell game? Stone offers a new slogan, “paternalism with a conscience,“46 which seems appropriate to the political nuances of the day, but continues to avoid many of the painful questions which we should be asking about how the systems have been interacting to bring about the current trend. Current systems have not been working in a political vacuum and they are not ahistorical. Somehow, it does not seem very convincing to say that we have awakened to find that we have gone from progressivism to retrograde havoc. In a limited way Stone does assist us by looking carefully at the Donaldson case. He shows us that it was essentially misshaped through its various stages of evolution until, in its final form, it really only stood for a narrow proposition of law, namely, the question of when a mental patient must be released. Still, as Stone correctly points out, “despite this technical description of the narrowness of the holding, the opinion has since been read by judges the same way civil libertarians read it. “47 The point that he is making is that cases are read and, more appropriately, misread for discretionary reasons that reflect political choices which can put judges in close alliance with social reformers. Stone is surely correct in saying that the Donaldson case has become a convenient peg on which the courts can hang a series of cases that lead to the condition in which we find ourselves in today, at least in North America where we are experiencing serious shortcomings in the delivery of psychiatric services.48 Stone believes that the cases have been misinterpreted to such an extent that

ClVlLlZATION (1965); K. DOERNER. MADMAN AND THE BOURGEOISIE: A SOCIAL HISTORY OF INSANITY IN PSYCHIATRY (1981). These are some of the \\orks that are representative of a whole tradition of analy
LAW, PSYCHIATRY,

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even when psychiatrists believe that cases have been more laterally decided in their favor, they make serious mistakes of judgment because the judicial system is simply using psychiatry to its own ends. In commenting on the Burger decision in Parham v. J. R.,4g Stone argues that, despite the comfort that the American Psychiatric Association derived from the decision (which held that untrained judges are not superior to imperfect psychiatric specialists), Burger had little regard for psychiatry5’ - he was merely opposed to judicial interventionism. In Stone’s judgment, all of the developments in the burden of proof area in civil commitment law mask the deeper problem that judges are dubious and ambivalent about this field. In order to untangle the contradictions in the political life of law and psychiatry, Stone has focused on the distinction between libertarianism and paternalism. He seems to be saying that the legal system, which identifies itself with libertarian values, is removed from direct contact with the tragedy that psychiatrists face in the field, and, therefore, many of its decisions lack an air of reality. Furthermore, the legal system has never really resolved, at the judicial level, the tension between the attempt to achieve libertarian goals and the assumption of paternalistic responsibilities. Actually, with respect to recent developments in the courts, Stone does an excellent job of describing the impasses that the Supreme Court has arrived at due to its own obscure ambivalence.51 In the mood that we find ourselves in the 198Os, we are hard-pressed to deny that the desire of the judicial system to re-accredit psychiatry is really a disguise for judges’ lack of clear policies on psychiatric questions which arise in the legal context, They are at sea because they no longer have a practical hold on these questions, if they did have some limited hold at an earlier time. Stone tries to pursue the issue of liberty and paternalism in greater depth in his chapter “Psychiatric Abuse and Legal Reform: Two Ways to Make a Bad Situation Worse.” Here, he offers us a bill of particulars about why psychiatry has abandoned the sick patient, how lawyers and psychiatrists have managed in the current era to alienate families, how psychiatrists have become policemen and avoided their professional calling in the libertarian age, how the criteria for civil commitment have led to the criminalization of the mentally ill, and how legal reform (the revolt against paternalism) has damaged the professional calling of psychiatry to heal the sick.52 Stone bears witness to the fact that the legal system has encouraged psychiatric irresponsibility, which has fostered many forms of defensive practice.53 Although this chapter seems to focus on the head-on collision between psychiatry and the legal system and the aftermath, in substance it reveals a plague on both their houses. Nevertheless, it would be helpful to find out precisely where Stone would lay the blame. How would he revise the integrity of judicial decision-making, for example, so that it could meet the criteria that he has in mind? How can psychiatry set its own house in order? Has psychiatry distorted its mandates simply because of the pressures that have been brought upon it by questionable legal intervention? “‘Parham

Y. J. R., 422 U.S. 584 (1979).

“‘A. STONE, supra “Id. at 104-6. ‘l/d. at 133-56. "ld. at 141-7.

note I, at 115-20.

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Or, do psychiatry and law have some true similarity in their professionalism and their ways of dealing with social conflicts, which makes their relationship at the deeper level something which a critic could have forewarned us about and which should lead us in the current age to a systematic critique of both these groups, perhaps even on the same basis. In laying the blame, first of all, before the courts,““ Stone repeats the well-worn observation of legal philosophers that the courts disguise their principles and policies and, when hard choices must be made, look for ways to circumscribe their decisions, thereby leaving the legal aftermath unclear and unpredictable. Stone suggests, although indirectly, that there has been a tendency by the courts to render the whole area of law and psychiatry somewhat uncertain so that the actors remain in conflict and never quite know what their expectations should be.55 Even if we argue, as some legal philosophers have for decades, that almost every legal decision is a political judgment of sorts, this does not solve our problems because it leads to a trivialization of the political issues. Not every area of law is politicized in the same manner, or to the same extent. What we need to know is what factors exist in the field of law and mental health that lead to a brand of politicization that differs from that of other areas of law. In telling us in different ways, as he does, that in the 1980s lawyers and psychiatrists have been heading in the same direction on the broad question of social irresponsibility,56 is Stone imposing precisely the same sort of moral burdens on psychiatrists as he has on judges and lawyers for their “policy of avoidance or abandonment?” If they are acting in concert, what is the nature of the conspiracy? It seems simplistic to reduce the issue to one of elitist professional collusion against an underclass. What then is the proper way to present the dialectical relationship between the two professions? Here, Stone does not go so far as to give us a conceptual map on which to quickly locate the debates. In producing his bill of particulars, Stone has simply provided us with a well constructed list of complaints in the guise of a spokesman for a set of professional interests (he identifies himself in the book as having been a spokesman over the past years for the American psychiatric establishment). An eloquent summary of his world view appears at the end of his chapter “Psychiatric Abuse and Legal Reform:” In the end, I stand by my bill of particulars, because on reflection I see that these claims have a common theme. The cunning of modern bureaucracy is that it creates a hierarchy in which no one feels personally responsible for anything important that goes wrong. Everywhere I look I see the public mental health system being shaped by this cunning, and legal reform seems to me to have hastened that process. By setting barriers in the path of treatment responsibilities, and by imposing on psychiatrists responsibilities they could not fulfill, legal reform has turned a ratchet that will not easily be turned back. As we

LAW, PSYCHIATRY,

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pass through the 1980s the great ideological been coaxed out of its cave.57

dragon

15

of psychiatry

has

This statement would have been an ideal prolegomenon with which to begin to grapple with the moral questions that lie at the root of the problem. How, when making hard choices in this system, should judges really behave? According to what set of criteria? Are there models within psychiatry which could be imported into the legal framework? Have the failures of psychoanalytical jurisprudence anything to tell us? What policies or social objectives could we accord priority once the limitations of libertarianism have been exposed? What set of tools can the legal system properly utilize in balancing libertarian: ideals against paternalistic responsibilities? Is psychiatry better able to deal with these questions? When do we know where to draw the line to allow psychiatry to do its work unmolested by the legal system? If we do not want to regress to conditions that existed before the legal reforms, then what new criteria can we adopt to avoid pouring new wine into old bottles? The Political

Question

in Psychiatry

The political question as applied to psychiatry has been an issue of controversy over the past 40 years. In his discussion of politics in psychiatry, Stone attempts to address one particular facet of the debate, namely the issues that are raised by the political discussion of psychiatry which impact on moral questions. By beginning his book with a chapter devoted to political abuses of psychiatry in the Soviet Union and the United States, citing the noted Grigorenko and Walker case? (two generals whose politically controversial activities made them the subject of psychiatric inquiry), Stone presents the opportunity to reflect on the most extensive moral violation of a code, namely, when a profession subordinates itself to the over-dictates of the state. When any profession goes against its own moral code and functions in a role which the state itself may hesitate to assume, then, perhaps, this stands out in both the public and the professional eye as a serious violation of a moral duty to serve one’s client or patient according to one’s professional code of ethics. In both the Grigorenko and Walker cases we quickly find out that there are strong pros and cons with respect to psychiatry, so much so that Stone is prepared to present Grigorenko almost as a debate for and against Soviet psychiatry.5g Stone notes that psychiatrists in the Soviet Union have said that their interventions have a humanistic base insofar as the alternative could be a harsh prison or labor camp sentence.60 In his examination of Soviet psychiatry, however, Stone is not harsh with the Soviet system as it is administered. He does not, for example, take into account the substantial numbers of systematically documented

“Id. at 156. ‘“Id. at 3. Stone does not put the political abuses of psychiatry into historical context. He ignores, for example, the abuses of psychiatrists in Nazi Germany who were responsible for killing and sterilizing the mentally ill. “Id. at 5-10. ““Id. at 6.

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cases reported by reliable observers in the West,” of the severe maltreatment of political dissidents through the Internal Security System of the Soviet Union’s special hospitals. The plight of dissidents in these institutions has been compared to that of those confined in labor camps and prisons. As a response to their acts of political dissidence, these hospital patients are overdrugged, broken down in will and spirit, and much more significantly, delegitimated through the stigma of madness. In the context of these widely reported cases, Grigorenko stands as a modest example of the harsh conditions of internment and the blatant violations of diagnosis that have been an integral part of the history of modern Soviet psychiatry.62 The Grigorenko case is an awkward example from which to assess what lies at the root of diagnostic manipulation. We can conclude, once we have acknowledged that Grigorenko was misdiagnosed, that whoever was responsible was more than likely, as Stone would have it, “an overly zealous lackey of the state.“63 But this should be merely the beginning of the analysis of this set of issues. Whenever a misdiagnosis based on some set of political considerations occurs, it is time for us to begin to pursue a line of questioning that examines whether the process serves the state. Does this usually occur in stages? By abrupt commands? Do political considerations infiltrate the process of science itself? If so, how? Walter Reich has written that one can see a tie with the history of the Snezhnevsky School of Schizophrenia which was used to diagnose Grigorenko.“4 Snezhnevsky’s history, notwithstanding the value of some of his scientific categorization, is that of a prominent Soviet scientist accommodating his ideas to the necessities of the state. A subsequent question would be, how is science a reflection of a political environment and its ideology? It does not follow that where science has been politicized it cannot be as morally justified as a functional enterprise. It does mean, however, that certain scientists, often for very subtle reasons, are better equipped to cope with certain political demands by the state (for example, politically dissident acts) than other actors in the system, such as lawyers. This is the fascinating aspect of the contemporary school of psychiatry which dominates in the Soviet Union, and which was used in the Grigorenko case. Stone has used the Grigorenko case to elucidate some basic points about the shape that psychiatric abuse can take when it comes in the form of misdiagnosis used for political ends. It is understandable why he used Grigorenko: this was the only case to which he had direct access. He was in a position to correspond with Grigorenko’s overseers in the Soviet Union, as well as to beg to disagree respectfully among professionals. But consider the following: the Soviet authori“‘Admittedly BRIEFING, TIONAL. elucidating

Stone

refers

POLITICAL PRISONERS the debate

IO the ABUSES

Amnesty

International

OF PSYCHIATRY

OF CONSCIENCE stth

respect

f’\.vchic//ry

on Trio/, COMklIzNTARY,

Ho\/~iruk.

/l

k’iewf‘l-o~rl

/k

IN THE

to numbers Jan.

and

rcpon-Sac: IN THE

U.S.S.R. the detail\

.I. 0I;t:ENDER

(1983);

(1977)-but or their

1978, at 40; Gold\rcin,

/n.vrc/c, I9 INT’I.

AMNESTY

U.S.S.R.

he doesn’t mental

Cou~pr/ror.v THERAPY

INTERNATIONAL AMNESTY get into

tl-eatment. Trwf/rw~/

& COMP.

Sw

INTERNAthe literature Reich,

in Soviet

Sovirt

/?\~rchiurrrc~

C‘RIMlNOI.OGY

312

(1975). “‘See S. BLOCK 10

SUPPRESS “(1.

STONE,

‘,‘Ricch.

& P. REDDAWAY, DISSENl w,uw

trr,~rc, note

note

(1977). I. at 70.

61, al 43.

PSYC‘HIATRIC

TERROR:

HOW

SOVIET

PSYCHIATRY

IS USED

LAW, PSYCHIATRY,

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17

ties had renounced the citizenship of an elderly gentleman who had been assessed by them in an earlier period when his symptoms could have been plainly more florid. The Soviets perceived him to be mentally ill, at least in their cultural context. It should be noted that this cultural context was distinctly different from the context of American culture in which Stone had the opportunity to interview him. To have a man of Grigorenko’s distinction within a closely regulated state like the Soviet Union handing out leaflets on the street and taking up the cause of a minority group like the Crimean Tartars must have made him appear truly bizarre among his social and professional peers. In public terms, the burden of proving that his behavior was not socially deviant and mentally abnormal must have been a heavy one. It is also a matter of public record that there was a dispute about Grigorenko’s mental status within the Soviet Union. At one critical stage, a Tashkent group of psychiatrists gave him a clean bill of health, which was subsequently overruled despite his obsessive temperaby the Serbsky group in MOSCOW.~’Furthermore, ment and fierce loyalty to principles, Grigorenko had not unilaterally condemned Soviet psychiatry while he lived in the Soviet Union.66 In fact, he respected some of the psychiatrists who, for various complex reasons, had been unsympathetic in judging him mentally unfiP and who had arranged to have him locked up. Also, in certain respects his case is distinguishable from the typical cases of political dissidents. Apparently, he was never drugged during the entire period that he remained in the special security hospitals. From this, we might infer that, from the viewpoint of the Soviet authorities, he was not the worst warrior to transport abroad for critical comment about their psychiatry. The only conclusion, finally, which we might draw from the careful attention which Grigorenko received from sympathetic ears in American psychiatry, is that in old age he received a clean bill of health. It is still left to our colleagues in the Soviet Union to argue that he was cured by the passage of time or that at the time when he was seen in the United States he was in a period of final remission, a remission which was caused, if not by Soviet pills, at least by Soviet therapies. Stone’s choice of contrasting Grigorenko with General Walker is worthy of some comment. When this American General began handing out leaflets in the 1960s against desegregation in Mississippi, the federal authorities, who were clearly of a more liberal culture than their Soviet counterparts, looked to psychiatrists to delegitimate him and, of course, found willing accomplices.68 In this case we begin to see the subtleties of psychiatric intervention in politically controversial cases. Even though we may want to say that the Grigorenko case is relatively straightforward (in the sense that it looks like a trumped up case where a patent misdiagnosis was made in order to create a psychiatric lackey), it may be less clear than it seems on the surface. There are various factors in the cultural contexts, of the Grigorenko case and its American counterpart Walker, which explain why an individual may take on the color of madness and invite a psychiatric diagnosis which to the outsider appears misplaced and in bad faith. Some ‘,‘A. ““Id. ‘,‘ld. ““fd.

STONE, s~rpr” note I, at 15. at IX. at 18-20. at 27-3 1.

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of these factors include: societal perceptions of what would be a normal range of dissidence in the behavior of the politically dissident personality; the socioeconomic status of the individual involved; and, the extent to which there is an established accord among the significant elite in the culture. Since these factors can reasonably influence experts, we are brought inevitably to the issue of how it is possible for science to act in good faith and in bad faith. How does this dialectical contradiction take hold in the psychiatric process in relation to the political? It cannot be just a matter of a few bad apples in an otherwise attractive orchard. The central question is how the science interacts with the range of distortions that affect social systems. The context of psychiatric judgment influences the motivational features of an assessment of morality, so that decisions made in good faith in one cultural setting may clearly be made in bad faith in another, even though, at the level of political rationalization, in each of them the psychiatrist may be using the same language of justification. For example, it may have been the case that during the Stalinist period Soviet psychiatry saved many lives from the Siberian noose by liberally declaring individuals insane. This impetus for psychiatric distortion would be a shoddy argument in the 1970s and 80s when the conditions of the internal security prisons of the Soviet Union are, by anyone’s assessment, themselves a vehement attack on sanity. It is remarkable how powerful the self-image of psychiatric observers might be, given a specific social context. Even after Grigorenko had been declared fit in Tashkent, there was no hesitancy on the part of the professors of psychiatry to present him at Grand Rounds in Moscow, and, under the close scrutiny of their psychiatric colleagues, to demonstrate him to be mentally unfit. Western observers concluded at the time that these scientific discussions were based merely on political necessity and were, therefore, a distortion of science. However, given the cultural influences that we have discussed, we should hesitate to completely adopt this view. In what sense would we conclude that the Grigorenko judgment was made in bad faith and by those who were merely lackeys? At the core of this false interpretation is what Stone points out to be a central problem within psychiatry itself, namely, the uncertainty of the political and cultural parameters of the profession. Stone argues that the ultimate difference between protection afforded the citizens of the Soviet and American states (aside from tinkering with the definition of paranoia so that fraudulent cases are excluded by definition), is that the adversary system in the United States eliminates politically abusive psychiatry.6’ This is why, according to Stone, the Walker case faded away in its early stages once the psychiatric testimony was fully reviewed. As Stone puts it, “The American legal system is adversarial. The citizen’s lawyer is a zealous advocate against the state. The Soviet legal system puts the welfare of the people’s revolution ahead of the person. In the end, these fundamental differences influence everything, even the political misuse of psychiatry.“70 This claim is somewhat curious for later in his book Stone condemns the adversarial system for its abuses against psychiatry and describes its distorting effect on diagnosis and care as the singularly outstanding obstacle in the way of honest practice of the profession.71 Stone’s

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position seems to be that when the adversarial system distorts honest psychiatry in order to thwart political abuses of dissidents (for example, actors against totolitarian states, and in particular, distinguished generals) its fall from moral grace can be justifiedbut only under these conditions. If this is the case, then his position is hardly worth taking seriously. The general problem with Stone’s analysis is that he does not dissect the divergent roles that psychiatrists play in the legal-political processes. There are no typologies given.72 Without such differentiation it is hard to identify the actors in a moral context. With regard to the Grigorenko case, Stone provides little useful analysis of the complexity of psychiatry, culture and social control. To truly understand the role of the psychiatrist in the legal process it is essential to understand the culture and how it influences the way judgments are made. But even more importantly, Stone does not tell us what constitutes political abuse. The cases of Grigorenko and Walker are simple: generals are quasi-political figures and in both cases they had acted overtly against the state. But what about psychiatrists who work in special hospitals for the criminally insane? Are they political actors in some meaningful sense according to Stone’s understanding of the term? Stone is strongly opposed to the existence of special hospitals, which he views as having been created for politically suspect reasons since they have offered persons little treatment and have given rise to a whole set of abuses, creating environments “worse than prisons or mental institutions.“73 What then is an apt decription of psychiatrists who work in such institutions? Are they too “overly zealous lackeys” of the state?

Tattletaling:

A Case of Moral and Legal Obligations

One of the major themes in the book, which Stone fulsomely develops in his treatment of the widely discussed Tarasoff case,74 is that the legal system has placed an unwarranted burden on psychotherapists in its attempt to control the increasing violence that has resulted from tighter commitment laws. Stone believes this trend is turning psychotherapists into surrogate policemen and frustrating the therapist-patient relationship.75 The Tarasoff case held that the special relationship existing between a therapist and patient imposes a duty on the therapist to use reasonable care (a negligence standard of a like professional) to protect third parties against dangers posed by the patients in question. In the case of Tarasoff, the duty took the form of a duty to warn. Stone argues that what Tarasoffestablished was the broad duty to protect, the duty to warn being only one component of that legal obligation. It is left open, as Stone insists, for courts “For a set of typologies pertaining to the different roles that psychiatry har in relation to the political process, see Weisstub, Psychiatry and the Political Quesrion, 3 INT’L .I. L. & PSYCHIATRY 219 (1980). “A. STONE, supra note 1, at 49. It is interesting to note that in his condemnation of “special hospitals” Stone fails to take into account institutions in progressive culwrcs, cuch ac Holland, which have expended enormous efforts for special treatment programs dedicated to the criminally insane. See Hendriks, The Treatrnenl of the Mentally Abnormal Offender at the Van der Hoeven Klinik in Holland, 20 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 255 (1976). “Tarasoff v. Regents of University of California, 108 Cal. Rptr. 878 (Ct. App 1973), vacated and remanded, 13 Cal. 3d 177, 529 P.2d 553, 118 Cal. Rptr. 129 (1974). “A. STONE, supra note 1, at 150.

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to require a duty to commit and any number of other duties that can be construed pursuant to the theory of special relationship. In the cases that have followed 7’arasoff, many interpretations have been developed, and Stone notes that judges have, in fact, been restricting the rule to a mere duty to warn, a duty which, in some cases, has been imposed only where the victims have been named.‘” According to Stone, this is not, strictly speaking, the ‘ratio’ of Tarasoff. In order to build his case effectively, Stone adopts a legalistic orientation with respect to Tarasoff and its progeny.” As a Tarasoff purist, he adopts a strictly mechanistic interpretation in order to demonstrate that the rule is unworkable and retrogressive. Stone musters a number of public policy arguments to convince us that Tarasoff was decided from an anti-psychiatry perspective, that it takes an unfair and scientifically fallacious view of psychiatry’s capability of predicting dangerousness, especially in the long run, and that it contains a misinterpretation of the ability of psychiatrists to effectively control the actions of their patients.78 Not content to let his argument rest, Stone goes on to allege that the Tarasoff case has many additional failings: it is a misguided appreciation of the trust that really exists in the therapeutic relationship. He feels that, from a policy perspective, the decision is short-sighted because its potential impact on the defensive practice of psychiatry (its likelihood to encourage psychiatrists to over-commit patients in order to protect themselves) was not anticipated. He alleges that the decision was motivated by a desire to compensate innocent victims and that, with this end in mind, the court seized on the convenient availability of a professional insurance fund. He concludes his criticism by stating that the case was based on a totally ill-founded philosophy of strict liability. But when these many public policy arguments have been parsed away and responses made to the interpretations of Tarasoff in cases of other jurisdictions, it becomes apparent that the concern that Stone has raised is central, not for the array of public policy issues which suggest economic considerations and social attitudes about violence, but rather because these issues give rise to moral claims about the nature of the psychotherapist-patient relationship. Unluckily for the reader, Stone does not distinguish between public policy and moral and legal duties. They are all blurred to the extent that it is difficult to pin-point which are the moral points he wishes to make.79 If the legal system has acted in bad faith, we can accept the view that its behavior towards psychotherapists has been immoral. That is, we can accept that there has been some breach in the ethical relationship between law and psychotherapy-psychiatry. However, Stone’s blanket claim stretches further; he is effectively saying that the courts have gone off on a malpractice spree, distorting (against scientific evidence) the competence of mental health practitioners to deal with violence simply in order that plaintiffs begin to enjoy insurance benefits in the relatively uncharted waters of psychiatric malpractice. Stone’s attack on the integrity of the legal system is blistering: “That result is absurd. The only tenable justification for this absurdity is the understandable desire to compensate “‘Id.

at 168-9.

“Id. at 16485. ‘“Id. at 175-85. -“/cl. at 183-A.

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victims by reaching into the therapists’ malpractice policy in order to find a deep pocket.“80 Stone’s position is that Tarasoff emerged out of a legal philosophy which disregarded scientific truths, and managed to place psychotherapists in an immoral relationship with their patients. 8LWe cannot, however, extrapolate from Stone’s remarks that when tort cases are based on efficiency rather than equity (a fair determination of fault), the legal system has acted immorally. The most we can venture in this instance is that the obligations of a therapist to his patient have become so distorted that the moral bond has snapped. Stone seems to be arguing two things: firstly, that the law has willfully acted immorally, and secondly, that Tarasoff has a causal outcome-immoral relations between therapists and their patients. According to Stone then, compliance with the Tarasoff decision will, of necessity, lead to immoral professional conduct. It is regretable that we have to tease these points from the text. It seems clear from the arguments presented, however, that these claims are a fair reflection of Stone’s underlying points of view. Of course Stone does not want to absolve therapists of any obligation with respects to violent patients and he does proffer arguments to instantiate those obligations. There is only one place in the entire book where he speaks of a “moral obligation” in law or psychotherapy. He writes, “However, I see no reason not to find a special relationship and impose a legal duty in situations where a moral duty is clear and the actions it requires are readily comprehensible to those who have the duty.“*’ Stone argues that where there is imminent danger, like a bus bearing down on a blind man, the “moral and legal duty” is clear.83 The laissez-faire approach of the common law is nowhere more provocative than where it fails to impose a legal obligation to act to save a person except in those rare circumstances that are covered by positive duties. We can stand on the curb and watch a blind man go to his death and not be held personally liable. This is in contradistinction to the continental-civil law, which would hold the have been raised in law observer responsible. And so, “what-if” controversies classes for decades, examining whether we should import moral duties into tort law in Anglo-Saxon jurisdictions. In one sentence Stone states his position that when a moral duty is clear a legal duty must flow from it. 84What does this mean? How do we apply the blind man example to psychotherapy? Do we have an apples and oranges problem here? In the case of the blind man, there is no special relationship established. In psychotherapy the relationship is professional, rather than simply moral or arising out of the experience of an ordinary citizen. What is the difference between these various states or categories? There are surely moral obligations that arise out of professional obligations. Does Stone then require a moral duty to be a necessary condition for every legal duty arising out of a professional relationship? In his view, the obligation of therapist to patient should be determined by the HoId. at 170. "Id. at 179-83. “‘Id. at 184. =ld. "4/d.

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ordinary standards of actions between persons, because there cannot be a professional standard of negligence while psychiatrists cannot predict dangerousness.85 If this is so, how do we obligate therapists? Stone acknowledges that the psychiatrist-patient relationship can give rise to special knowledge when the patient is imminently dangerous. Where this situation exists Stone would impose a legal duty that flows from a moral one. There seems to be nothing wrong in principle with Stone’s view of the justification for imposing this particular duty on therapists, but there may be duties that make sense other than from a moral point of view. These cases are entirely unclear because Stone has restricted our understanding to situations of clear and present danger (when a patient’s violence is imminent). It is also unclear whether Stone would want a moral, and hence legal obligation to apply when there is clear and present danger; in such a case the therapist has no established relationship with the patient, although he does possess some professional knowledge with respect to the violence (as the not-so-innocent professional bystander). Stone argues strongly against any objective-professional negligence standard, and instead defends the notion that we should apply a “subjective standard.” He holds that if the therapist believes the patient to be dangerous at the point of evaluation or, for that matter, apparently at any other point in time, then by his or her own standard, the moral-legal obligation comes into focus.86 Stone’s “moral-legal subjective” standard is unfortunately highly problematic. By what criteria do we crawl into the defendant’s mind to determine what he holds moral? Do we refer only to the evaluation documents or do we employ a reasonable man test, or do we return willy-nilly in desperation to what an experienced therapist exercising reasonable foresight would have done in those circumstances? Given certain judgments, should therapists be better able to handle the parties in question? Are there professional standards that are meaningful here? Should therapists be expected to exercise some professional control in ciphering certain violence-related statements, not to a standard of exactitude, but within a broad spectrum of competence? Is there a point at which we could say that a therapist has truly acted incompetently or negligently? Stone’s retreat into the standard of the man of the Clapham omnibus sounds fair and civilized, but will not prove adequate in a world where there is a specialized profession dealing with mental illness. To suggest, as Stone does, that Tarasoff is useless because it links the psychiatrist’s duties to a standard, not even of negligence but of strict liability, is ultimately to misread the case altogether and to create a straw man argument out of the expectation that there are some management skills that we as a society should be able to rely upon with respect to psychotherapists in Tarasoff-type cases. A psychiatrist need not be in strict control to be able to act professionally with respect to violent patients. If information about a person who is being targeted for physical violence is sufficiently compelling, it should then be the duty of the therapist to take appropriate steps. One wonders, in the end, how far away Stone really is from a restrictive interpretation of Tarasoff, which he agrees has been employed by some sensible judges.87 Although he persists in saying that the ,___-_ “‘Id.ar 171. “‘,/d.

ar 171,

“Id.

at 172.

182.

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standard is “ordinary” negligence he does state, “I do not suggest what the therapist’s legal duty should be apart from taking some responsible action to avoid a tragedy.“** For a lawyer, responsibility is a loaded term. Stone could help by telling us what his concept of responsibility in taking the necessary steps to subvert tragedy would be. We know from negligence law that once you have begun to act, even though you have no obligation as a Samaritan, if you are a professional you must act according to a professional standard. In other words you cannot escape from your calling. That is just the issue in Tarasoff-type cases. What are the limits of a calling? If you say you cannot predict dangerousness, but at a certain point you make your “professional judgment” nonetheless, then you may have obligations that are, at the very least, quasi-professional; i.e., you are presumed to be able to deal with violence-information better than a person off the street. It is not enough that you do something of a moral nature for the record, or perhaps to assuage your conscience. The law may expect more. That is why we must be careful in tort law to distinguish between legal-fault (a negligence standard) and moral-fault which may deserve no protection in law. How do we arrive at legal-fault? By the court groping with principles such as the one found in Tarasoff - that of designating moral-like obligations based on a legal perception of when professionals are to be obligated to act. These broad principles are basic themes throughout the history of tort law, especially in the area of duty from Donaghue v. Stevenson onwards.89 These principles have taken on a moral hue, but have evolved differently from ordinary moral precepts, that is they have developed by the legal process which constricts and then gives body to a broad principle through legal rules, applying the principle to particular sets of legally relevant facts. Stone, therefore, cannot reserve the right to say to judges, “but you are strictly obligated by Tarasoff .“90 Such legalism has never been part of modern tort law. There are many factors that go into the future of Tarasoff-type cases. It is in the spirit of the common law to adjust a broadly expressed duty to a workable set of rules that will escape the amoral, efficiency-minded strict liability concept of which Stone speaks. On the other hand, it can be shown that some strict liability nHId. at 185. “‘Donoghue v. Stevenson, (1932) A.C. 562 (H.L.). “‘Oddly enough Stone appears to want to box judges into taking upon themselves the burden of applying the logic of Tarasoff II, subverting psychiatric practice by forcing psychiatrists into ethically untenable positions of implementing a very broad duty to protect (See Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976), as opposed to the more restrictive interpretation of duty to warn as ennunciated in Turasoffl (the first decision of the California Supreme Court. See Tarasoff v. Regents of the University of California, 13 Cal. 3d 177, 529 P.2d 553, 118 Cal. Rptr. 129 (1974). Stone states, “Psychiatrists are still talking about the Tarasoff duty to warn, and so are judges. But Tarasoff II is the law, and it stands for the duty to protect-a much broader obligation than a narrow duty to warn, and one that creates a much greater risk of liability for psychotherapists.” (A. STONE, supra note 1 at 169.) Also in his criticisms of Turaso.ff II he seems to see only the worst potential consequences from a strict interpretation. In addition to admonishing judges for not following this interpretation while at the same time criticizing it, he ignores the fact that a strict interpretation may be beneficial to both patients and the practice of psychiatry. The concept of strict interpretation of tort doctrine does not really have substantive meaning given that in the majority of cases tort decisions turn on the facts of the individual cases. Finally, and perhaps most importantly, the duty to protect may generally mean the duty to warn, except under extraordinary circumstances.

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cases are, in fact, based on compelling moral-like facts or principles, for example, that the defendant took great risks at social expense for his own benefit. When we weigh the gravity and nature of the harm against the benefit and cost of avoiding the damage, and discover that the scales tip heavily in one direction, we move from a negligence criterion to a concept of strict liability. A great deal of modern tort law has been analyzed on a risk graduation by legal commentators and judges.‘l Such risk calculations and moral analysis are not mutually exclusive. Stone fails to respond to this in his harsh attack on the theories against irresponsible therapists that could be entertained in the tort system. As we have observed, Stone’s strict liability theory has turned out to be a straw man. Stone’s analysis merely approximates an accusation that there is a conspiracy that has been launched against psychotherapists by Szaszian-like critics who have no respect for the psychotherapeutic craft. This is somewhat farfetched for, even if some points about the serious limitations of psychotherapeutic knowledge have infiltrated the learned law journals, and thereafter affected the California Court of Appeals, it could well be argued that many of the Tarasoff-type cases would have emerged one way or another. This is especially true given the recent trends in duty cases in the negligence field.92 Increasingly in common law jurisdictions, including a series of cases in the House of Lords in the United Kingdom, we see positive duties created for groups which hitherto enjoyed immunity (municipalities, for example, with respect to provision of housing).y3 This trend is part of the common law’s embryonic experience of disengaging from its laissez-faire negligence roots and entering into the very world which Stone enjoins us to approach, namely the world of moral duties and obligations. Tarasoff is an illustration of the tort system attempting to affix moral blameworthiness in a specific legal sense, not just because there is insurance available (there may in fact not be in similar cases, for instance those involving non-medical professional groups), but also because it disturbs our societal conscience to think that when we have special knowledge and can do something about it, we refrain from acting. From recent cases we see that when special relationships exist the tort system is prepared to go a step further to say that a positive duty has arisen that will be given protection in law.94 Such a vision of moral-legal obligation need not be unmanageable, but like every other matter in negligence law, is subject to interpretation and does not proceed in a vacuum. After a number of psychotherapeutic cases have been decided the system can take stock of whether the

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therapeutic aspect of the relationship has been truly sacrificed: in time we can examine whether the practice of psychotherapy has given rise to increased rates of incarceration, and, whether, indeed, the floodgates have been opened.g5 There are many options available through the tort system as it works in balance with legislative pressures. We must also look to its impact on professional selfregulation, the insurance industry, and on legal academics and other professional commentators, including psychiatrists. The tort system is not an enshrined code; we do not comprehend the fluidity of its law-making practices if we point an accusing finger at it and say, after the Tarasoff decision “you’ve doomed yourself’ because the rule must now be applied as if it were a well-defined traffic infraction in a minor legislative enactment. Even in the most minor example of codification imposing strict liability we know that there are excusing conditions when strict application of the law would fly in the face of public policy or equity. If there are problems with Tarasoff in principle, then these may be, in general, issues that we can put before the malpractice system in which psychiatric or mental health professionals are but a small part of a larger scheme. If the standards of negligence are often seen to be either incoherent or unpredictable, and thereby violative of the criteria that are fundamental to a well-lubricated system of logical rules and principles, then there is nothing to stop us from critically analyzing these general issues from a moral standpoint. In his commentary on Tarasoff, Stone is apparently reluctant either to sort out the relation between moral and legal duties, or to see the problems of psychiatric malpractice as part of a broader series of issues which we could locate in the negligence system. The way that he draws the line between subjective and objective standards is itself deserving of rich debate, particularly as it applies to the case of psychiatry. This would also be true for the manifold problems of causation theory as they relate to negligence law. It is impossible to appreciate the development of “duty” in modern tort law without relating it historically and philosophically to the criteria used in causation and negligence, especially with respect to the issues of “proximate cause.” There are ample opportunities for responsible judges to draw the line in Tarasoff-type cases without distorting the integrity of the broad issue of responsibility, especially given the circumstances in special psychotherapeutic relationships which are the main thrust of the Tarasoff decision. There remains the pressing issue of the integrity of the therapist-patient relationship in the light of Tarasoff. In making the Tarasoff discussion an important element of Law, Psychiatry, and Morality, Stone implies that what is “truly disturbing” about the case is that it threatens the core of the therapist-patient bond. Stone suggests that what is highly particular about this relationship (but by no means unique to it) is the presence of something beyond a bond of convenience. We can suppose he wants to imply that the bond has a moral dimension. There is something powerful in a communication of insights that takes place in a relationship that is intimate, private, and founded on trust. Certain analyses

“‘A. STONE, supra note I, at 180. Indeed even Stone documents that the empirical studies thus far have not shown major untoward consequences to psychotherapy. See also Beck, When /he Purienr Threurens Violence.. An Empirical SIudy of Clinical Pruclice After Tarasoff, 10 BULL. AM. ACAD. PSYCHIATRY & L. 189 (1982).

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of the concept of privacy lend a great deal of credence to the claim that in order to understand and realize important values like respect for others or the realization of the autonomy of personhood, we must have private relationships as a precondition.96 The privacy experience is significantly enshrined in the therapeutic relationship. Stone might wish to argue by undermining privacy, we cut right at the heart of a serious institutionalized attempt in our society to build on trust in the therapeutic relationship. He suggests the following: While we gain in eliminating some violence, or in redressing wrongs through the civil ,liability process by disturbing the privacy bond, we suffer far greater quantitative and qualitative losses by frustrating the therapeutic alliance. Here we begin to see the fly in the ointment. What is the best model to preserve the integrity of that alliance once violence has become an issue? Once again this question highlights the importance of the notion of professionalism. Stone himself is forced to acknowledge that, “the duty to warn is not as unmitigated a disaster for the enterprise of psychotherapy as it once seemed to critics like myself.“97 There are psychotherapists who have argued that Tarasoffputs a realistic focus on violence that encourages violence-related therapy to be far more effective. As Stone puts it, “Indeed, in some quarters, the duty to warn has been embraced as a therapeutic advantage.““n The idea that therapists will not destroy the therapeutic bond when they are up-front about their duty to warn is intriguing. At the philosophical level, this position is represented by the following: In order to escape the paternalistic model of therapy, even when they see their obligation as flowing from a benevolent posture, therapists should be encouraged to approximate the idea of a contractual relationship as much as possible. In order to force this maturity upon the dependent patient, who is often working against his own interest in this respect, the therapist must confront the patient when the patient begins to act out his fantasies in a life-threatening fashion. This contractualist model suggests that the patient, if capable, must be made responsible for his actualized fantasies if there are points at which the therapist can arrest an unconscious flow of aggressive fantasies. The contractualist model, predicated on the philosophy that patients take responsibility for their own bodies, has been gaining momentum in medicine at large and is likely part of an emerging anti-paternalistic stance in psychotherapy relationship it is manifested in the proposition as we11.99In the psychiatrist-patient that the patient take increasing responsibility for his own mind. The contractualist model is an ideal; this does not mean that it should always apply. In many cases in psychotherapy it will not fit at all, because of the degree of derangement, the institutionalized context of treatment, the criminal definition of the mental acts in question or the cultural variables. But the contractualist ideal does suggest where the therapist should begin. When the model is inapplicable there is time enough, either by way of a waiver (this may seem merely formalistic but has some

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meaningful forms worth exploring in general medicine), or by way of professional standards of conduct (when the patient is not competent to operate on a contractualist footing), to communicate through a benevolent or status-oriented relationship based not on the rights of parties, but more on a series of duties or obligations. The irony is that, contrary to Stone’s position which suggests that contractualism is self-defeating because it leads to violation of the therapeutic bond, in non-contractualist cases paternalism usually leads to all kinds of violation of privacy which we routinely see in the mental health system. In state hospitals, prisons, the criminal process, custody disputes, administrative or court hearings for the release of involuntarily committed patients, worker’s compensation cases, military-related injuries, pensions, etc., the therapeutic alliance is highly flawed from a privacy perspective. Those who are used to a dyadic model for therapy (the classical psychoanalytical on-going relationship frequently associated with the wealthy) often tend to transport this model to the rest of the therapeutic world because they see it as ethical. We know that this does not square with reality. There is a perceived inequality of power between therapists and their patients, the Tarasoff-type movement in both society and law is struggling to equalize power in treatment by pricking the amniotic bubble to bring into the open what we know goes on, i.e., that the violent patient enjoys a rather restricted privacy, and is, moreover, often in a restricted class setting as well. Making violent persons, including violent mentally ill persons, responsible is a desirable social aim, particularly given the level of violence in our contemporary society and the degree to which the public and even mental health professionals are increasingly frustrated by the morass of psychological excusing conditions which the law has apparently been willing to allow. Privacy, in any event, is often a password for the social protection of elitist self-interest. It is, after all, a commodity enjoyed by persons who experience far less surveillance than their socially inferior counterparts.100 Doctors and lawyers, corporate elites, and politicians are far more apt to have their privacy protected than are factory workers or welfare recipients. And what then is the situation for the mentally infirm? When the celebrated movie “Titticut Follies” was given public airing in order to expose the conditions of life in Bridgewater Hospital in Massachusetts during the 196Os, the Attorney General’s Department moved for an injunction to protect the patients from a public viewing of their circumstances.“’ This was an ignoble gesture at best, as claims of privacy were used for the purposes of obfuscating the conditions of the patients. As far as ethical parameters are concerned, when violence becomes an issue in the course of therapy, the breaking of the therapeutic bond is already canonized in the American Psychiatric Association’s Principles of Ethics: psychiatrists are allowed to reveal confidences to protect society. lo2What Stone submits, however, ““‘See D. WEISSTUB tawa Canada

(Queen’s

& J. GOTTLIEB, Printer

ON THE

CONCEPT

OF PRIVACY,

Government

Report,

Ot-

1972).

‘O’Note, Privacy of Menial Hospital Patients Will he Provided by an Injunction Prohibiting Open Public Exhibition of a Motion Picture Depicring Hospital Condirions, 83 HARV. L. REV. 47 (1970). ““A. STONE, supra note I, at 178.

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is that the immoral practice of tattling, is now going to take psychotherapists, via Tarasoff, down a river of disaster. The floodgates of Tarasoff are literally going to drown the therapeutic alliance. Is there reason to express such alarm? Are the decisions in the aftermath of the case based on a tyranny of falsification against psychotherapy? Does it result in the denial of a privacy bond or in a villification of psychotherapy which if left alone would singularly serve the patient’s interest? Is this a world recognizable to the passionless observer? In fact, the impact of Tarasoff has not been of the scope and intensity that Stone had insisted it would be. The Tarasoff decision, as all tort cases, turns on its own facts. If a few subsequent decisions do become overly zealous in their search for a new “social-contractualism,” their effect cannot be all bad. It is a strength of the common law that it knows how to correct itself when its progressive intentions conflict with broader social goods. Even when we consider individual good, which should be the paramount concern in individual therapy, we can show that privacy or the confidentialist bond is a double-edged sword; it is moral to preserve the autonomy of persons, but we have learned that elevating individual responsibility to the public platform can, either in the short or long term, force individuals to become more capable of the human intimacies that preserve moral integrity and lead to the avoidance of evil. Admittedly, tattlers and informers are often not respected in peer groups or in popular movies because they are often perceived as social misfits who betray the confidences of friends. But, the act of informing is not necessarily morally objectionable. We learned quickly as young children that to be good meant to sacrifice peer interest in order to realize the higher social rule of obeying the mandates of school or home. If we could brace ourselves morally in those instances, we endured derision from our closest friends, while betraying the peer system of social mores. Those of us who also learned the morality of friendship began to balance the level of infraction against the benefits to be derived from peer associations. A mature individual builds on his early childhood experience and learns to balance carefully the interests of his environment, family, or workplace against those that serve his intimate relationships. The issue is that, at certain stages in the individual’s development, succumbing to peer pressure may jeopardize a true bond of friendship, if friendship is understood to have a moral basis. The question in a case like Tarasoff is whether the therapist is being asked to act as a socially regressed tattler, an interloper in a demeaned role, or whether he is really being asked to respond to a higher moral obligation to protect society when an individual threatening violence stands in a proximate relationship to him. To depict a therapist as suddenly induced to tattle, at the beck and call of a nasty legal apparatus is an unfair interpretation of the serious moral-legal claim that Tarasoff meant to make about responsible therapists. Whether we like it or not, therapists have something of a conflicting role; they must balance individual and social interests in the course of therapy. Is not the strongest theme in Stone’s book that the moral parameters of therapy are often woefully unclear? It does not help to narrow the duty to protect to cases where tragedy is already through the door, if there are cues that reasonable persons could take. Does Tarasoff, as a principle, really go any further than this? If it does not, then in what sense should we be at moral odds with the law?

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Morality

Do psychoanalysis and psychiatry lead to a breakdown of reason and, therefore, the dissolution of rationally based moral behavior? There has always been confusion about whether Freud preferred a Kantian rationalist model which focuses on principled, rational judgment to a model which focuses primarily on probing the repressed and potentially violent social underbelly. It was Freud’s intention to benefit patients by elevating the irrational to a rational faculty, but his theory of morality and social responsibility was underdeveloped and, arguably, unclear. In the end however, by most accounts including Stone’s, Freud was a rationalist and so had something in common with Kant. It would be stretching things to follow Freud too closely down the Kantian path-his adulation of reason must be interpreted in the light of his psychological cynicism. Freud’s view was that we could make a safer bet on social stability if mechanisms were installed to repress the unconscious forces in the public, rather than taking chances on the variable of unpredictability that would be ever-present if we attempted to turn people into freed up psychoanalytical products. This position comes through quite clearly in Civilization and its Discontents.‘03 In assessing Freud’s link to rationalism, Stone leaves us somewhat confused, reflecting on our long-standing question of just how to state the Freudian case for “non-rational” or “irrational” morality. He points out that “the tradition to which Kant and Freud belong sees the peril of humanity in the triumph of passion over judgment and reason.“‘04 He then goes on to alert us to the fact that “if modern psychiatry started down the path that Kant and other theorists of human nature had taken, guided by Freud, we reached a different destination. Modern psychiatry produced a vision of human nature in which morality was itself a passion at war with reason. Moral choices and decisions were based on unconscious determinants, all of which seemed incompatible with Kant’s idea of free moral agents choosing between right and wrong.“‘05 Stone rightly points out that over time, a number of claims have been articulated about psychiatry’s relationship to morality, ranging from the view that psychiatry undermines morality to the converse view that it reinforces conventional codes. There is also the more recent assertion, really a variation of the former claim, that psychiatry dissipates our conception of ourselves as free moral agents and thwarts our ideas of just punishment.lo6 Having taken notice of these pressing contradictions in interpretation, and having signaled the current crisis of psychiatry, which represents a set of conflicting relations with respect to conventional morality, Stone regretably trivializes the issue of how to properly locate organizing principles for psychiatric morality. Stone concludes that we cannot be certain whether Freud’s account of the conditions affecting moral agency were descriptive and subjective, or a priori pseudo-scientific statements about scientific determinism. In so casting the Freud““S. FREUD, ClVlLlZATlON AND ITS DISCONTENTS ““A. STONE, sup-a note I, at 220. ““Id. at 222. ‘““For an exhaustive treatment of this issue, ree M. MOORE, THE RELATIONSHIP

(1984).

(1962).

LAW AND PSYCHIATRY,

RETHINKING

30

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and DAVID N. WEISSTUB

ian double message, Stone carries us no further than the extensive literature on this subject which has been painstakingly developed elsewhere by philosophers of science and methodology.‘07 However, even though Stone declines to give us any direction on the epistemological grounding of psychiatry, by which we can assume he himself is uncertain about how to ground it, he does strike a positive note in his admiration of the dynamic unconscious which he believes has had a profound influence on the shaping of moral judgment.‘08 But, having announced this belief, Stone leads us to a path that is blocked by negative aspersions. For example, he pronounces Freud’s phylogenetic unconscious and sociobiology entirely speculative and pervasively ideological, as is plainly illustrated in the case of women. lo9 Stone seems to be telling us that we ought to abandon the Freudian path completely or, at the very least, make a dramatic fork in the road. Having established the logic that a comprehensive psychological theory leads to a theory of human nature and hence of morality, Stone’s heavy critique suggests a kind of moral-intellectual bankruptcy in the Freudian moral world view. Indeed, it can only follow that Stone relegates Freud to the position of being a miserably failed sociobiologist.‘10 Having aligned himself with the fierce critics of Freud as ideologue, it is hard to imagine how Stone sees value in the theory of the dynamic unconscious, which after all has become something akin to cultural common sense at the end of the 20th century. One questions why Stone did not go further in his analysis to deal in depth with the critiques of Freud (for example, the feminist critique), which are very relevant in this context, so that we could properly determine his true position on these critical and relevant works. This would have been far superior to a simple statement of his belief (widely shared, by his own submission) that Freud was ideologically burdened and not a proper scientist. A more thorough critique would apply to Freud’s concepts of both psychological biology and psychological morality, at least in the strict sense that they invite application of the scientific method, which seems to be compatible with Stone’s position. We are left instead with a feeling of discomfort at seeing the over-simplified psychiatric baby thrown far afield before we know exactly what kind of psychological theory about human nature and morality Stone himself would find acceptable-or the philosophical criteria which he would offer us to use in assessing Freudian, or any other psychological theory. Ironically, Stone seems to identify implicitly with the provocative statements of Jeffrey Masson,“’ not in the sense of suggesting impropriety on the part of Freud, but rather in enlarging on the tradition of saying that the prejudicial content of Freud’s thinking has lead to a great deal of distortion and mismanagement of psychological truth, perhaps most conspicuously with respect to women and children. Although it may sound exaggerated, given Stone’s recent position as the President of the American Psychiatric Association, it is not far from the mark

““SW

H. FINGARETTE,

SdJ’in P~ychoanu/_v/ic Theory. AND

DESERVING

“‘“A.

STONE,

““‘Id.

31 221.

““Id.

at 221-9.

“‘.I,

MASSON.

THE

MEANlNG

in 2 NATURE

1970); D. DENNETT,

wpru

THE

OF CRIMINAL ANIMATED BRAINSTORMS

note I. at 227.

ASSAUL-T

ON TRUTH

(1984).

INSANITY

(1972); Eagle, Anulomy

183 (M. Ruse ed. 1982); J. FEINBERG, (197X).

ofrhe DOING

LAW, PSYCHIATRY,

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AND MORALITY

to say that his work bears witness that there is little objectivity left in psychiatry. He posits that there are no explanatory theories that should be credited over and against opposing views and that the modern eclecticism which has permeated current clinical work only serves to underscore the thorough relativism in psychiatric theory itself.“’ Is it not a corollary that psychiatry must pay a moral cost for this relativism? One might go further to say that Stone’s critique is relentless, for he argues that non-judgmental listening can be a moral weapon of sorts, by which a therapist leads the patient through subtle devisiveness to uncontemplated horizons. We find also that when Stone contemplates the rationalist alternative to psychiatry, which he finds in the paradigm of Kant, he is perplexed on reviewing Kant’s antipathetical attitude to the truly introspective personality. Indeed Kant’s rationalism could not finally protect him from the presence of prejudice, personal or cultural, in his moral structures.‘L3 Stone appears to have missed the intent of Kant’s remarks on introspection. He also fails to distinguish between the structure of moral thinking and its content. Kant argues that pushing the cognitive moral powers back into the recesses of introspection is self-defeating, because by this process neither emotions nor moral possibilities are clarified.‘14 We see the shortcomings in psychoanalytical graduands, who, from serious scholarly literature to the modern media, are parodied as being self-indulgent and immoral. In defense of this psychoanalytical posture, it is surely positive to postulate that once the reflective personality begins to experience obligations, a moral life free from unconscious pressures and dictates becomes possible. But this has never been proven, nor is it an experience clearly described in the reports of the large patient population.115 The truism is that an unrepressed individual is more likely than an unconsciously driven person to be capable of some modicum of decency. This, too, is unfortunately unclear and indeed unproven, for it depends on what we mean by a moral life-and the depth of moral concepts such as courage, loyalty, and other notions that have a complicated relationship to the psychology of personhood. This is precisely where Stone had us wondering in the first place. He does not discuss the links between the theory of psychology, human nature, and a moral life. Stone recognizes that the most relevant challenge to the psychological imagination, as it is for any moral actor, is how to delineate prejudice. Kant failed in his moral philosophy to ground his principles in a particular morality that was capable of universalization. 116All that Stone has contributed to alleviate this shortcoming, which is part of a global historical condition, is the insight that psychiatry can relieve a person of self-hate but should not exculpate or dissolve guilt. 11’ Having said only that about the role of psychiatry, he leaves us empty-handed, grappling with the questions of how psychiatry can relieve prejudice and the nature of its relationship with the humanistic ideals of respect for persons and certain moral qualities such as trustworthiness, friendship, etc. “2Id. at 252-3, 258. at 232-233. “41. KANT, ANALYTIC “‘Id.

EXCERPTS

FROM

1963). ‘15P. RIEFF,

THE

OF THE BEAUTIFUL FROM THE CRITIQUE ANTHROPOLOGY FROM A PRAGMATIC POINT

TRIUMPH

““R.

M. HARE,

“‘A.

STONE,

OF THE

FREEDOM supru note

AND I, at 234.

THERAPEUTIC: REASON

(1963).

USES

OF FAITH

OF JUDGMENT, WITH OF VIEW (w. Cerf Trans.

AFTER

FREUD

(1968).

32

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and DAVID N. WEISSTUB

Presumably, Stone is arguing that psychiatry has a role to play in diminishing the psychological burdens that interfere with moral thinking. But what is Stone’s concept of psychological interference, apart from a condition of self-loathing, and what is his concept of a moral life? He provides little substance in either case. There is much that we would like to learn from Stone about his perceptions. For example, does he see a connection between the Kantian moral imperative and a distortion of the rational-moral mold? Does the authoritarian personality branch out in some way or remain comfortable in the rigid pattern of keeping principles and rules consistent? Is moral rationality inevitably at war with the non-rational moral person? Is there an intermediate psychological character who stands between the quasi-rational-the non-rational, self-reflective person, who is not a classical Kantian - and the irrational personality-the uncontrollable, fascist personality type whose fears and loathing have overtaken his conduct, leading him to cruelty and denegration? Nowhere in Stone’s analysis does he apply his moral analysis to the fascist and totalitarian, anti-liberal, moral experiences which have shaken the 20th century. He does not try to make the moral connection between cultural prejudice and the psychological conditions that give rise to it. Freud, Jung, and many other commentators devoted themselves to studying the psychology of political and moral life on these major trajectories, but Stone avoids these issues. What he does provide is the insight that the tradition of psychological thinking (personified in his book essentially by Freud) and moral thinking (personified essentially by Kant) have given us neither a science nor the content of psychological morality. as Morality” and “Morality for PsyIn his final two chapters, “Psychiatry chiatry,” Stone reaches the crest of his argument. Here he postulates the limit of psychiatry as a paradigm and then proceeds to see what moral direction can be given to psychiatry. Because Stone demonstrates a consistent tendency to avoid taking any hard position which is distinctly his own, apart from looking at the state of knowledge within the profession or suggesting points of comparison with other social critics, it is important for us to untangle the arguments so that the critique and our assessment of it can be clarified. The Classical Alternatives

Presented

What Stone does do forthrightly is present the classical options available to modern psychiatry in its relation to morality, as he sees them.l18 Firstly, he presents the interventionist position, in which the psychiatrist boldly enters the fray; secondly, the value-free posture from the point of view of the psychiatrist’s personality and professional knowledge from which he explicitly denies a value orientation and attempts to deal with moral questions from a scientific standpoint; thirdly, the preferentialist position (although Stone does not refer to it as such), in which the psychiatrist announces his own value system and then attempts to deal creatively (perhaps by scaling down the importance of his own value scheme in therapy) with his moral input into therapy; and finally, the position which Stone implies in various sections of the book that he has the greatest deal of “*Id. at 240-2. psychotherapists.

This is the section

where Stone sorts out the various

positions

on the moral

premises

of

LAW, PSYCHIATRY,

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AND MORALITY

sympathy with, namely that of the therapist trying to be non-judgmental and working from the premise that he must respect the patient’s own values and moral convictions. The logic of these paradigms is truly problematic to follow. It is not at all clear how they are distinctive in theory, let alone in practice. For example, what is the meaning of a psychotherapist having respect for the moral conviction of a pedophile or a drug pusher? Arguably the value schemes of these patients will be conflict-ridden; they may be contradictory or even idealized moral world views, depending on the type of pedophile or drug abuser. Possibilities for distortions in interpretation, such as those associated with sociopathic behavior or the presence of cognitive dissonance, are open in such cases. These are well described in the psychiatric literature.‘19 In solving the moral problem of when to intervene as a therapist it does not help to refer to the therapeutic premise, as psychotherapists are wont to do, that immorality is psychopathological. (Stone himself may well identify with this tendency, although it is again unclear in the text .) If we knew what Stone’s concept of immorality was, and what exactly he means by “psychopathological” in relation to “immoral” conduct, we would be further ahead in our analysis. Presumably, all that Stone has intended to convey by this disengagement of the moral content of psychotherapy is the predominant view among psychiatrists, that it is necessary to stand back to let the patient speak and then, having exposed the world (using, for example, the technique of free association), walk in through the back door to introduce values. When Stone has the psychiatrists do this (i.e., psychodynamically intervene with a value position), or derive a moral perspective from a scientific set of premises (morality as an objective state of mental health), are we not left in a conceptual quandry about how to dissociate Stone’s various positions, one from the other? The problem is that it seems to be almost in the nature of psychiatry that the discipline operates on the premise that it cannot answer, and perhaps is unable even to analyze the pressures being placed upon it, in order to decide upon its different approaches to defining an answerable moral-methodology. This inability forces us to ask again, when are we in a position to judge the double agency of psychiatry, when can we, in conscience, determine that psychiatry has digressed from its science into domains that are morally manipulative, and where does the discipline of psychiatry presume to offer us, in Stone’s words, “a prescriptive theory of the human condition. 7”‘*OThis confusion in the moral logic of psychiatry is not something that appears to present any great moral angst for Stone (although here, too, some of his examples would suggest otherwise). As a case in point, he discusses his treatment of a situation in which, as an army psychiatrist, he gave evidence that condemned a black sergeant to five years of hard labor for theft. The sergeant was motivated by an intense psychological reaction to racism. In retrospect Stone felt responsible for his short-sighted testimony.‘*‘ “9Quinsey, Men Who Have Sex With Children, PERSPECTIVES 140 (D. Weisstub ed. 1986). ““A. STONE, supra note 1, at 249. “‘Id. at 254.

in 2 LAW AND MENTAL

HEALTH,

INTERNATIONAL

34

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and DAVID N. WEISSTUB

Under the heading “Psychiatrists as Arbiters of Moral Problems,” Stone comments with considerable satisfaction: “If the descriptions I have given you are correct, if psychiatry is really so confused about moral questions, then how is it that society for so long allowed us to be arbiters of difficult moral problems? The answer I believe is that our moral ambiguity and confusion, our inability to frame hard moral questions, has been our greatest asset as society’s decision makers.“‘22 He goes on to point out what the man on the street has known for 30 or 40 years and has not required official government or professional investigative bodies to prove; namely, that on such critical issues as draft resistance and abortion, psychiatry has been a willing and powerful partner of the wealthy in providing excusing conditions, and has acted as a facilitator of creative rejections of social or individual burdens. It does not seem demanding to have expected to find in Stone’s text some way of criticizing this state of affairs, to find guidelines to assist us as sociological or moral observers in deciphering the terms of the therapeutic alliance, which would prepare us to make moral judgments about how we might avoid our unacceptable ways. Instead, Stone is only prepared to pose the old questions with no resolve. Indeed, he has thrust them towards the end of the book with an enticing and almost innocent philosophical naivite: “ If psychiatrists still practice moral instruction in the sense that they help patients decide how to live their lives, from where do they get their vision of morality? Do they derive it from their psychological understanding of human nature ? Do they import into psychiatry their own unexamined moral attitudes and beliefs? Or do they, as some claim, remain neutral and non-judgmental, working entirely within the context of the patient, applying only the patient’s values and moral convictions as they emerge in therapy?“lZ3 In looking further into Stone’s discussions of which philosphical positions are worthy candidates for developing a psychiatric ethic, we are frustrated by his proclivity to reduce his own position to one of professional autobiography. In embracing this role, Stone abandons the philosopher’s task of proceeding by way of argument. In its place, he seems to want to adopt a position on moral passion from the experience of his own clinical practices, which, by his own statement, brings him closer to an argument of faith rather than reason: “You will recognize that in the view that I am suggesting there is a considerable overlap between religious conversion and what goes on in the psychotherapist’s office.“L24 Stone, in effect, presents an argument about morality that is highly subjective. He seems to imply that transference is so essential to the psychotherapeutic experience that a patient can never separate the “moral-like” experience of loving the therapist from the cognitive evolution of gaining moral knowledge and/or understanding. If they are inseparable, can we ever have a philosophical understanding of this phenomenon, or is everything that is moral for Stone reduced to a radical subjectivism? In raising this philosophical dilemma, as in Plato’s Euthypro, “Do we love the gods because they are good, or are they good because we love

LAW, PSYCHIATRY,

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35

them,“lz5 Stone quickly decries any responsibility for being unable to answer this riddle. “I shall talk only about psychotherapy. I will leave it to the moral philosophers to decide if there is, in fact, any parallel.“126 Given that Stone has devoted his book to an examination of the intertwining natures of law, morality and psychiatry, it is frustrating to allow him such modesty. Rather, we might insist that the reader is entitled to expect that Stone not abandon the ship to an unnamed collection of moral philosophers. This concept of “psychiatrized love” or “moral conviction” appears to be the pivotal point in Stone’s entire argument. What are its essential logical ingredients? Is it something which we can recognize and distinguish from other moral experiences? Does conviction differ from understanding or knowledge? If so, how? All that Stone offers by way of a hint is the concept of a moral fix-“a selfconfirming experience which is known to the initiated.” “He who knows, knows.” Stone asserts “that a cure is a moral achievement for the patient as well as for the therapist. The patient achieves a new moral conviction about the situation of the self in the world.“‘*’ Having pronounced on the concept of the moral cure, Stone leaves the rest to our imagination, or to his unnamed moral philosophers. Even if we restrict ourselves to the psychiatric domain, how does Stone relate his concept of the “cure” to the non-psychoanalytical aspects of psychiatry? Do they lack this moral content? Is the moral content, as a cure, intrinsic to psychoanalytic wisdom, or is it something which the therapist trots out at the eleventh hour when the owl of Minerva has been given her cue, having been previously denied her flight. Finally, after many false alarms, the moment of wisdom then apparently arrives-but what is its psychiatric content? Is the theory of the human condition which the psychiatrist conveys something which surfaces, as religion from a holy text? Or, do we have to admit, given the extent of the mystery here, that psychiatrists have become like priests, but priests without particular beliefs. Thus, Stone offers us a secular theology scaled down for a relativistic universe that even denies the possibility of grounding values in a stable or objectively shared universe of moral truth. It may be that to demand from Stone what the 20th century has failed to provide is patently unjustified. To require him on the other hand, to back off from the “mysterium tremendum” or an obscurantist position with respect to the cure of a moral love is not. The alternative to moral absolutism is not professionalized mysticism. Stone asserts that “the therapist’s achievement is to have given moral guidance without being a moralist.“128 What does he mean by this? If the psychiatrist is merely a catalyst, we could argue that, in some sense, if Stone explored the phenomenon more closely, the psychiatrist would remain value-free. However, Stone says that, at the risk of the psychiatrist imposing his own prescriptive theory of morals, the human condition cannot be avoided by the true therapist.lz9 To be a catalyst is, of course, not to be a preacher. Which is the true therapeutic cloak? Stone cannot afford to ride both horses if they march in opposite directions. “‘PLATO, ‘16A. STONE, “‘Id. “nld. ‘2Yld.

at 249.

I THE supra

DIALOGUES note

OF PLATO

1, at 247.

27-59

(R. Allen trans.

1984).

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In his final chapter, “Morality for Psychiatry,” Stone’s analysis is really addressed to his fellow colleagues in psychiatry and, in this context, his prescriptive directives take on a tighter meaning. He defines the intellectual enterprise of modern psychiatry as one of “pragmatic eclecticism,” which for him is a confusing bluff.=O He states that the problematic “ambiguities of eclecticism in theory and in practice” drove him to try to resolve the lack of conceptual clarity which afflicts psychiatry,13’ but then argues that breaking down the narrow categories of the field by being eclectic brings a greater moral danger.13’ However, he never elaborates on precisely how that occurs. If there are no clear moral principles in psychiatry,‘33 then why would breaking down the barriers and establishing new walls not be an improvement? Within psychiatry, does Stone prefer the moral ambiguities that arise from one of the principal orientations in the field, for example, psychoanalysis or social psychiatry, or, as an eclectic, does he back away from having any position at all? Is he inevitably value-confused? This is presumably different from the position taken by a scientist who is value-free. It is arguably better to have values as opposed to no values, at least so most of us were taught at an early age. But certainly in the Western culture, it is thought to be a necessary condition of making moral choices to know what our values are. Stone does not tell us. Even after we have come to the point of knowing that he favors the “higher sensibility”134 that comes from escaping from narrow paradigms within psychiatry (as the behavioral or biological), he concludes by telling us that these values are “hidden”‘35 and that he has no rules by which to organize “the existing paradigms.“‘36 Once again, after having begun to expect an intellectual defense of eclecticism, we are left with a descriptive sociology, a statement of professional affairs rather than a moral argument or any indication of what values, explicit or implicit, constitute the moral enterprise of the “pragmatic eclectic.” Indeed, Stone suggests that his is a superior position in the sense that it takes account of the moral complexities - social, historical, and political in which the psychiatrists find themselves. We are left confused by Stone’s earlier statements that being a forensic psychiatrist is morally unacceptable to him because the parameters of professional science get blurred along the way.13’ Certainly it would be helpful to know when we are either winding along our professional paths or trying to re-direct ourselves, how to get off our professional horse, if that is what is morally required under the circumstances. If he does not offer the tools to distinguish moral from immoral professional conduct, then how can Stone avoid being named “a thorough-going If psychiatrists speak out against racism, political relativist or subjectivist.” injustices, the social or legal treatment of homosexuality, or on the rights of women, do they do this in their capacity as psychiatric professionals, or do these become statements made out of well-intentioned, personal prejudices? One does

LAW, PSYCHIATRY,

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not need to be a psychiatrist to be morally courageous, nor, in fact, to be morally ambivalent or ambiguous. This moral ambiguity, of which Stone speaks, gives rise to important intellectual questions about the nature of psychiatric judgment. These are questions similar to those asked of lawyers and judges about the nature of their responsibility when their own positive laws fail to meet certain moral requirements. In the legal sphere, the arguments are often made between the so-called positive and natural lawyers, between those who argue that when there are moral crises in the law, moral judgments are extra-territorial, and those who believe that there are moral principles wedded to the history of civilized law that give us direction on these troubling occasions. Stone limits himself to acknowledging that psychiatrists find themselves up against the hard moral questions, without addressing the problem of where psychiatric principles are first grounded. He freely and forthrightly expresses his realization that “given the power of our enterprise whether we like it or not, we are in some measure responsible for the influence of these hidden values.“13* He insists that history and morality are localized in the therapist’s office. Then, to add to our frustration, he insists that “the only question is, how do they get there.“139 Even if he and his professional colleagues would like to banish the morally complex demons egged on by the social psychiatrists, Stone claims it is too late. Social psychiatry has by now managed to broaden the scope of morally legitimate questions for psychiatry, in Stone’s view.140 The lack of conceptual clarity in the conflicting theories in contemporary psychiatry forces us to consider whether Stone or any other spokesman for eclecticism can do more than moralize among his brethren, preaching to the converted.14’ Stone seems to admit that it appears impossible to have a coherent theory without parameters, ordering principles, and clear distinctions between acceptable and non-acceptable judgments, and with a host of political and historical pressures which are largely inexpressible. Is there a similarity, then, between the state of affairs that Stone describes and the witch doctor or the itinerant preacher turned frontier herbalist? In all instances the power is in the medium, and the justification in the fact that people say they benefit from the treatment and want more, especially if the resource is kept scarce. If we want to argue that the power is in the message, then the language is a silent one, and its values hidden. Here we have Stone’s world of a panoply of “psychiatric, scientific languages,” and as he put it, “with many dialects.“‘42 The choice then is between a model in which the psychiatrist prescribes without knowing the content or consequences of his medicine, and a world where the grounds for communicating the contents of judgment are absent. We might want to suggest that the witch doctor is often better characterized as a primitive scientist who knows the effects of his medicine, and like the frontier herbalist, offers a good placebo more often than not. Would we thereby be elevating the witch doctor and the herbalist and denegrating the pragmatic ec-

lJ81d. at 259. ‘“?Id. at 255. ““Id. at 258. “‘Id. at 253. ‘*lid. at 252.

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lectic? Is the difference, finally, one of quantity rather than quality? What are the criteria, then, that we would use to distinguish the moral integrity of the witch doctor from that of the modern day psychiatrist? Are we further ahead in being able to answer these questions after having read Stone? Stone might wish to argue that the psychiatrist would be better analogized to the priest than to the witch doctor-frontier herbalist nexus, the distinguishing variable being that we often associate the latter with charlatanism and some form of primitive manipulation, where the agenda is imprecise and the respect due questionable. There is no problem with moving in this direction so long as Stone is prepared to tell us how the fundamental values and belief systems that are at the root of “pragmatic eclecticism” unfold. It is not enough to defend the faith by referring to the power of a profession and hosts of believers. We would hope, there are some values behind the altar. If we cannot know them, then, apparently, we must have blind faith in the moral humanism of psychiatry. In the final analysis has Stone limited himself throughout the book to saying that there is nothing more to say than that the situation, morally speaking, baffles even the most astute observer? After Stone, we still do not know how the moral or immoral demons got into the therapeutic office.‘43 In Stone’s favor, nonetheless, he has managed to avoid the pigeon holing which could have lead him to obvious professional controversy among his peers, or into philosophical disfavor. But in his apparent eagerness to avoid true intellectual confrontation, with his gadfly methodology he has parted company with the authentic Socratic who, even in his profound ambiguity, threatens our soul with a vision of the true, the good, and the beautiful. In short, Stone’s book lacks a moral vision. And, he tells us that without taking the risk of evolving a moral perspective, psychiatry cannot survive. The challenge left to Professor Stone is to provide us with that very vision.

‘J’ld. ilt 239. 249.