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UNJUSTIFIED PSYCHIATRIC
COMMITMENT in the U.S.A.
by Lawrence Stevens, J.D.
In 1992, U.S. Representative Patricia Schroeder of Colorado held
hearings investigating the practices of psychiatric hospitals
in
the United States. Rep. Schroeder summarized her committee's
findings as follows: "Our investigation has found that
thousands
of adolescents, children, and adults have been hospitalized for
psychiatric treatment they didn't need; that hospitals hire bounty
hunters to kidnap patients with mental health insurance; that
patients are kept against their will until their insurance benefits
run out; that psychiatrists are being pressured by the hospitals
to
increase profit; that hospitals `infiltrate' schools by paying
kickbacks to school counselors who deliver students; that bonuses
are paid to hospital employees, including psychiatrists, for
keeping the hospital beds filled; and that military dependents
are
being targeted for their generous mental health benefits. I
could
go on, but you get the picture" (quoted in: Lynn Payer,
Disease-
Mongers: How Doctors, Drug Companies, and Insurers Are Making
You
Feel Sick, John Wiley & Sons, Inc., 1992, pp. 234-235).
A headline on the front
page of the July 6, 1986 Oakland,
California Tribune reads: "Adolescents are packing private
mental
hospitals But do most of them belong there?" The
newspaper
article says: "...mental patients advocates say many adolescents
in
private hospitals are not seriously mentally ill, but merely
rebellious. By holding the adolescents, who often dislike
hospitalization, advocates say private hospitals reap profits
and
please parents. ... Some county mental health officials
and
psychiatrists at private hospitals acknowledge there are
hospitalized adolescents who, ideally, shouldn't be there. ...
`It
distresses me to see kids in these facilities; it distressesme
to
see the profits going on,' Jay Mahler, of Patients Rights Advocacy
and Training, said two weeks ago at a Concord Public forum. `It's
a hot business,' Tim Goolsby, a Contra Costa County Probation
Department adolescent placement supervisor, later agreed. `If
your
kids like sex, drugs, and rock`n'roll, that's the place to put
them. I'm not sure insurance companies know what's going
on, but
they're being ripped off.' Goolsby estimated 80 percent
of ado-
lescents in Contra Costa private psychiatric hospitals are not
mentally ill... University of Southern California sociologists
Patricia Guttridge and Carol Warren say these adolescents have
been
transformed from delinquents to emotionally disturbed children.
After studying 1,119 adolescents in four Los Angeles-area
psychiatric hospitals, they found that less than a fifth were
admitted for serious mental illnesses" (Susan Stern, The
Tribune
(Oakland, California), Sunday, July 6, 1986, p. A-1 &
A-2).
In the February 1988
Stanford Law Journal Lois A.
Weithorn, Ph.D., a former University of Virginia psychology
professor, said "adolescent admission rates to psychiatric
units of
private hospitals have jumped dramatically, increasing over four-
fold between 1980 and 1984. ... I contend that the rising rates
of
psychiatric admission of children and adolescents reflect an in-
creasing use of hospitalization to manage a population for whom
such intervention is typically inappropriate: `troublesome' youth
who do not suffer from severe mental disorders" (40 Stanford
Law
Review 773 at 773-774)
Psychiatric and psychological
"diagnosis" is arbitrary
and unreliable. Furthermore, the supposed experts responsible
for
these "diagnoses" are usually biased in favor of commitment
because
of their personal economic concerns or their affiliation with
the
psychiatric "hospital" where the "patient"
is or will be confined.
Psychiatric "hospitals", like all businesses, need customers.
In
the case of psychiatric "hospitals", they need patients.
They not
only want patients, they need them to stay in business.
Similarly,
individual psychiatrists and psychologists need patients to make
money and earn a living. A magazine article published in
1992
criticizing the trend towards locking up troublesome teenagers
alleged that teenagers are locked up in psychiatric hospitals
today
more than in the past because "busy parents are less willing
to
deal with their behavior and because inpatient psychiatric business
represents a profitable market in the health-care field."
The
result has been an increase in the number of psychiatric hospitals
in recent years, "from 220 in 1984 to 341 in 1988".
This increase
in the number of psychiatric hospitals has resulted in keen
competition between hospitals and psychiatrists for patients.
"Keeping all those psychiatric beds filled is critical, and
administrators are aggressively ensuring that they will be. Hard-
sell TV, radio, and magazine ads (up to tenfold in the past few
years, according to Metz) are ubiquitous ... Some facilities even
resort to paying employees and others bonuses of $500 to $1,000
per
referral. ... Rebellious teenagers used to be grounded.
New
they're being committed. Increasingly, parents are locking
up
their unruly kids in the psychiatric wards of private hospitals
for
engaging in what many therapists call normal adolescent behavior.
Adolescent psychiatric admissions have gone up 250 or 400 percent
since 1980, reports Holly Metz in The Progressive (Dec. 1991),
but
it's not because teens are suddenly so much crazier than they
were
a decade ago. Indeed, the Children's Defense Fund suggests
that at
least 40 percent of these juvenile admissions are inappropriate,
while a Family Therapy Networker (July/Aug. 1990) youth expert
puts
that figure at 75 percent" (Lynette Lamb, "Kids in the
Cuckoo's
Nest Why are we locking up America's troublesome teens?",
Utne
Reader, March/April pp. 38, 40).
In her book And They
Call It Help - The Psychiatric
Policing of America's Children, published in 1993, Louise
Armstrong
laments "the 65 percent of kids in private, for-profit psych
hospitals who simply do not need to be there but are given severe-
sounding labels nonetheless" (Addison-Wesley Pub. Co., p.
167-
italics in original).
Unjustified involuntary
commitment to psychiatric
hospitals has become so blatant Reader's Digest published
an
article in the July 1992 issue exposing the unethical practice:
"Similar storm clouds
are appearing over the mental-
health field. Alarmed by exploding costs, insurance companies
began scrutinizing payments more carefully - and ultimately trimmed
the average patient's length of hospital stay. As a result,
`private hospitals that once made a great deal of money are now
desperate for patients,' says Dr. Alan Stone, former president
of
the American Psychiatric Association.
"That desperation
has opened the door for fraud. Among
the alleged abuses: patients abducted by `bounty hunters'; others
hospitalized against their will until their insurance runs out;
diagnoses and treatments tailored to maximize insurance reimburse-
ment; kickbacks for recruiting patients; unnecessary treatments;
gross overbilling.
"The most infamous
charges were leveled in Texas. On
April 4, 1991, two private security agents showed up at the Harrell
family home in Live Oak to pick up Jeramy Harrell, 14, and admit
him on suspicion of drug abuse to Colonial Hills Hospital, a
private psychiatric facility in San Antonio.
"Family members
believed the agents to be law-enforcement
officers. If Jeramy didn't cooperate, the agents said, they
could
obtain a warrant and have him detained for 28 days. `They
acted
just like the Gestapo,' the boy's grandmother - and legal guardian
- later told a Texas state senate committee.
"According to that
testimony, Jeramy was denied any
contact with his family for six days and released only after a
state senator [Frank Tejeda, now in Congress] intervened. State
officials discovered the boy had been ordered detained by a staff
doctor after his disturbed younger brother lied about Jeramy's
supposed drug use. The guards who brought him in worked
for a
private firm paid by Colonial Hills for each patient delivered.
...
"Soon after the
ordeal, the Harrells got a bill for
Jeramy's six-day stay, a stunning $11,000. The hospital's
owner
denied any wrongdoing.
"The Harrell case
led to those Texas senate hearings,
which in turn brought to light other allegations of fraud and
abuse
involving some 12 other Texas facilities and at least three other
national hospital chains. Similar charges have been made
against
hospitals in New Jersey, Florida, Alabama and Louisiana; three
federal agencies have opened investigations, and more than a dozen
states have probes under way" (Gordon Witkin, "Beware
These Health
Scams", Reader's Digest, July 1992, p. 142 at 144-146).
In 1991 or 1992 an administrator
at a psychiatric
"hospital" told me competition between psychiatric hospitals
is
what she called "cut throat". Combine this intense
competition
with America's poorly written involuntary commitment laws and
judges who refuse to impose protection from unwarranted commitment
that bona-fide due process requires, and the result is a lot of
people being deprived of liberty and suffering psychiatric stigma
unjustifiably. In the field of so-called mental health where
large
amounts of money can be made, in large part because of health
insurance, and where there is a competitive environment where
there
are too few psychiatric "patients" to fill psychiatric
beds, self-
interest biases the supposed psychiatric or psychological experts
in favor of a "diagnosis" which justifies commitment,
including
involuntary commitment where necessary. As Harvard Law professor
Alan M. Dershowitz has said, psychiatry "is not a scientific
discipline" ("Clash of Testimony in Hinkley Trial Has
Psychiatrists
Worried Over Image", The New York Times May 24, 1982,
p. 11). The
opinion of many legislators and judges that impartiality, objec-
tivity, and scientific expertise of mental health professionals
makes the kind of due process needed elsewhere unnecessary in
psychiatric commitment is mistaken.
As was noted in the
above quoted Reader's Digest article,
much of this unjustified involuntary psychiatric commitment of
normal and law-abiding people to the prisons called psychiatric
hospitals is motivated by the financial needs of psychiatric
hospitals and the people who work in them. Although it has
been
reaching newspaper headlines in only the last several years,
unwarranted psychiatric commitment has been going on for over
a
century, including in the USA where freedom is supposedly a
cherished value and where human rights are supposedly respected.
Recent inventions such as health care insurance have made the
abuses more frequent, but the willingness of mental health "profes-
sionals" to violate the sacred right of each law-abiding
person to
liberty isn't new.
What is most needed
is recognition that there is no such
thing as "mental illness". That alone undermines
the justification
for most involuntarily imposed so-called psychiatric care. Rather
than being a bona-fide illness, the mental "illness"
label is value
judgment about a person's behavior. But as long as incarceration
for so-called mental illness continues, those accused of it should
be given the same rights as defendants in criminal cases.
America's established history of unwarranted psychiatric commitment
shows this protection is necessary. These rights include
trial by
jury, a procedure for assuring the defendant or so-called proposed
patient has been advised of when and how to invoke his or her
right
to jury trial, an absolute prohibition of incommunicado confinement
(particularly during the pre-trial period), the right to confront
and cross-examine opposing witnesses, the right to call one's
own
witnesses, conviction or commitment only if there is proof beyond
a reasonable doubt, freedom from double-jeopardy, and assistance
of
legal counsel. The prohibition of incommunicado confinement
must
be absolute, because if psychiatrists are permitted by law to
hold
prisoners ("patients") incommunicado in "emergencies",
that power
will often be used routinely (without emergency). Another
safeguard prisoners of psychiatry need is protection from being
mentally disabled by forcibly administered psychiatric drugs or
electric shock treatment prior to their day in court. Of
all these
due-process rights, the right to jury trial and the right to not
be
mentally disabled by psychiatric drugs or electric shock treatment
prior to one's day in court are unquestionably the most important.
Many states have provided a right to jury trial in psychiatric
commitment cases by statute, but many have not; and judges often
refuse to grant it as a constitutional right. Judges are
as
capable as psychiatrists of deciding what to do with people accused
of mental illness, but few will even attempt to do so and will
instead approve a psychiatrist's request for commitment without
even the slightest attempt at real judicial review. The
importance
of the right to jury trial is illustrated by the remark of a court
clerk who told me, in the judge's presence, that the judge felt
if
he didn't follow the doctor's recommendation regarding commitment,
"the Court would be practicing medicine without a license."
This
illogical statement, which the judge seemed to agree with
(indicated by his silence as he listened to his clerk say this
and
by his conduct in court) reveals the extent to which judges have
abdicated their responsibility in this area to psychiatrists.
The
invalidity and unreliability of psychiatric "diagnosis",
often
complicated by the psychiatrist's financial stake in getting the
so-called patient committed, combined with the immutable reluctance
of most judges to use their own independent judgment, makes a
jury
absolutely essential for a fair trial in psychiatric commitment
cases. This is truly a case of "NO JURY - NO JUSTICE".
Far from anything idealistic
like law or concern for
human rights, the primary forces curtailing unnecessary involuntary
psychiatric "hospitalization" in the USA have been insurance
companies motivated not by idealism but by monetary concerns.
As
Tim Goolsby remarked in 1986 (above), "they [the health insurance
companies] [a]re being ripped off." Eventually the
health
insurance companies became aware of the needless psychiatric
treatment they were paying for. According to a front-page
article
in the August 3, 1992 issue of Investor's Business Daily:
"Last
Thursday...eight major insurance companies sued NME [National
Medi-
cal Enterprises] for alleged fraud involving hundreds of millions
of dollars in psychiatric hospital claims. Their complaint,
filed
in federal court in Washington, accused the company of a `massive'
scheme to admit and treat thousands of patients regardless of
their
need for care. ...some institutions were paying `bounty
fees' for
patient referrals or misdiagnosing patients to get maximum
reimbursement" (Christine Shenot, "Bleeder at National
Medical
Insurers Cry Of `Fraud' Reopened A Big Wound", Investor's
Business
Daily, Monday, August 3, 1992, p. 1). Time magazine
later reported
NME settled the case for a record $300 million (April 25, 1994,
p.
24). An article about a similar suit filed in Dallas, Texas
appeared in the September 15, 1992 issue of New York Newsday,
say-
ing: "Two of the country's largest insurance companies filed
suit
yesterday against a national chain of private psychiatric and
substance abuse hospitals, charging it with illegally admitting
patients who did not need treatment and then not releasing them
until their insurance benefits ran out" Michael Unger, "Hospitals
Called Cheats Insurers say health-care chain pulled off
nationwide
scam", New York Newsday, Thursday, September 15, 1992,
Business
section, page 33).
Insurance fraud involving
psychiatrists treating people
who do not want or need treatment illustrates a more serious
underlying problem that still has not been adequately addressed:
Loss of liberty based on the opinions of psychiatrists rather
than
on unlawful conduct by the accused has no place in a nation that
claims to respect the rights of each individual.
THE AUTHOR, Lawrence Stevens, is a lawyer whose practice has
included representing psychiatric "patients". His
pamphlets are
not copyrighted. You are invited to make copies for those
who you
feel will benefit.