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UNIVERSITY OF

CINCINN TI L W

REVIEW

VOLUME 45

1976

No.

3

INVOLUNT RY

PSYCHIATRY

homas

zasz

I.

PREF CE

There is

no

life without

prejudice;

1

hence,

there is no

person without pre-

judice.

The observations and remarks which

follow are

animated

and

in-

formed

by

one of my prejudices: namely, that, to be a fully

human

person

one

must

be free and responsible,

and

must

treat others as free and

respon-

sible

persons.

This prejudice

is

diametrically opposed to, and is therefore

incompatible

with,

the

prejudice

that animates and informs involuntary

psychiatry and those who

defend

or support its principles

and practices.

The

American

Judiciary

so far has endorsed

involuntary psychiatry. This

is

not

surprising in view

of

the

fact that, in

nearly

every

case

which

the

United States Supreme

Court

has decided

on

involuntary psychiatry

in

recent

years,

virtually

every

group

representing

care

and

compassion,

power

and

prestige, wealth and wisdom

has

appeared

as amicus

curiae in support

of

a

right

to

treatment

for

involuntary

mental

patients.

2

If a clear view of

the

problems of involuntary

psychiatry

is to

emerge, a

fresh

format

which

departs

from

the

customary

friend-of-the-court courtesies

.

This article

is based

on the Robert

S. Marx

lectures delivered

by Dr.

Szasz at

the University of Cincinnati

College

of Law on

February 18, 19, 20, 1976. A

greatly expanded version of this material

will

be

published in

book

form by Th e

Free

Press in January, 1977. Copyright 1976 by Thomas

Szasz.

• Professor of Psychiatry, State University of New

York, B.A.,

University

of

Cin-

cinnati, 1941; M.D., 1944.

1

R. WEAVER, LIFE

WITHOUT PREJUDICE AND OTHER

ESSAYS

(1965).

2. The

following

groups

and

organizations

submitted amicus

curiae briefs

to the

Supreme

Court

in

support

of the

right-to-treatment

for involuntary mental patients:

American

Association of Mental

Deficiency;

American Federation of

State, County,

and Municipal

Employees A.F.L.-C.I.O.; American Orthopsychiatric Association;

American

Psychiatric Association;

Joseph

P.

Kennedy

Foundation; National

Associ-

ation for Mental

Health; National

Association for

Retarded

Citizens; National

Center

for

Law

and

the Handicapped; National Association for Autistic

Children;

State of

Texas;

State of Ohio;

State

of New Jersey; the federal government.



CINCINNATI LAW REVIEW

is needed. Therefore, for the purpose of this article, I

want to nominate

myself as an enemy,

in

the sense

of opponent,

of the

Court; and I

want

to

offer

these remarks

as an

inimicus curiae brief to

that august

body.

II.

THE

CASE

OF

KENNETH DONALDSON

In

O Connor

v

Donaldson the United

States Supreme

Court held that a

state

cannot

constitutionally

confine,

without

more,

a

non-dangerous

indi-

vidual

who

is capable

of

surviving safely in freedom by

himself

or with

the

help

of

willing

and

responsible family members

or

friends.

'3

The Court

thereby ended

litigation based upon

an involuntary mental

hospitalization

that

was ordered

in

January,

1957

and

which

continued

until July,

1971.

The circumstances

of the Donaldson case are

typical

of

most

involuntary

commitments

and

vividly

illustrate the

problems

which

attend that practice.

When

Kenneth

Donaldson

arrived

in Florida, in August, 1956, he

was

forty-eight

years

old,

divorced, and unemployed. He stayed with his

parents,

who

resided

at

a trailer court.

In

November,

1956,

Donaldson

mentioned

to

his

father

that

someone,

perhaps

one

of

the

neighbors,

might

be

putting

something

in his food.

I Although Donaldson

reportedly only

mentioned

this

idea

to

his

parents,

it might

be

more

accurate

to

say

that

he complained to

them,

or that he accused the neighbors of

poisoning

him. These

distinctions

are important, since the interplay between so-called

mental

patients

and others cannot be understood

unless

the

paramount

role

of inflated

self-importance

and

covert

or overt coercion in the claims and

conduct of the

former,

and of inflated self-importance and deceptive thera-

peutic counter-coercion

in

the

claims

and conduct

of

the latter

is

recognized.

Let

us assume

that

the

older Donaldson

construed his son's

statement

about

poisoning as

an

accusation or complaint. What could

he do

about it?

Such

a

complaint confuses a person's

loved ones,

which is just

what

it

is

intended to do.

Moreover, there is also

a hint that

Donaldson may have

thought that his

parents were poisoning him. After

all, he

was ea-ng their

food. Suffice

it

to say Donaldson was upsetting his parents by

telling

them

that he

was

not entirely happy to be in their

home

and was not exactly

grateful

for

their

support. Had

the elder

Donaldson

been

able

to hear

his son's message in

this way,

and had

he been

able to

free

himself

of

the

psychiatric prejudices of the day,

he

might have replied: If you

don't

like

it

here,

why

don't

you

leave? Had

he

done so,

the Donaldson case

as legal

history might have ended before it began.

This

is not the only

thing

that might

have

happened

differently.

For

just as Donaldson's

father

had the

option of

separating

himself

from

his

son

rather than commiting

him,

so Donaldson

had

certain options which

cannot

3. O'Connor v. Donaldson, 422 U.S. 563 (1975).

4. B.

ENNIS

PRISONERS

OF PSYCHIATRY:

MENTAL PATIENTS PSYCHIATRISTS ND

THE LAW 84 (1972).

[Vol 45



INVOLUNTARY

PSYCHIATRY

be

ignored. If

people

live

in

a

society where

there are automobiles

and

traffic lights,

or electricity

and high tension

lines,

they

will have some

fa-

miliarity

with the

uses

and dangers

of these

artifacts and rules.

Similarly, if

people live

in

a society

where there are psychiatrists,

commitment

laws,

and

persons

locked

up

in

mental

hospitals,

then they

will

know

something-some

more,

some

less-about

these things.

In

fact,

Kenneth

Donaldson

knew

quite a

lot

about

psychiatry. He

had

been in a mental

hospital

once before;

in

1943, Donaldson had spent three

months in

the

Marcy State

Hospital, in

Utica, New York.

These

facts

are

essential

for

understanding

Donaldson's

complicity

in his

own

commitment and protracted

confinement.

5

It seems

likely

that

when Donaldson told

his father

someone

was

poison-

ing

his

food,

he knew

that

a possible,

if

not

probable,

outcome

of such

a

communication

would

be involuntary

mental hospitalization.

But regard-

less of

whether

Donaldson actually foresaw

such a consequence,

he surely

must have

been aware of the reaction

his

communication

probably

would

evoke from his father.

It is inconceivable

that

during this period Donaldson

had no indication that

his

father was

planning to

commit

him.

Perhaps

his father

even

threatened

to

do

so. However,

we

simply

don't know.

Furthermore, Donaldson

had

ample time

in which

to

counter such

action

by his father. He

first told his parents of

being

poisoned in late

November.

However,

it

was

not

until

mid-December

that his

father petitioned

for

a

sanity

hearing. Clearly then, had

Donaldson wanted

to

avoid

hospitaliza-

tion,

he could have done so,

by ceasing

to

complain

about

being

poisoned,

by pleading

with his

father not to commit

him,

or by

leaving

his father's

home

and Florida. Again, the records

do not indicate

what happened.

Nevertheless, it can be inferred

that

Donaldson made

no serious

attempt

to

avoid commitment,

and thus

indirectly

asked

to be

treated

as a psychi-

atric

slave.

To

ignore that he did

so is as

absurd

as to

insist

that because he

did, it was justifiable

to treat him as one.

The county judge who

committed Donaldson

told

him

that he

was being

sent to the

hospital

for a few weeks

to

take new

medication . He

assured him that

he

would

be

all

right

and would

return.

6

The

commit-

ting

judge's

remark

is

a classic

example

of the

justificatory

rhetoric of

in-

stitutional psychiatry.

What

the judge said

to

Donaldson

sounded good, and

probably

made both

the

judge and Donaldson's

father

feel better

about

what they

were doing.

In reality, Donaldson

was committed

because he acted

crazy and was

officially

adjudged to

be crazy.

Soon

after his admission, Donaldson was

5.

The

supposition

that

Kenneth

Donaldson had information

on this subject is

supported by

Bruce

Ennis, chief counsel

for Donaldson in his suit

against O'Connor

and Director of

the New York Civil Liberties Union:

Civil Liberties

of

Mental

Illness

Litigation Project.

Intelligent and articulate,

Donaldson rapidly became

the

'scribe'

and

spokesman

for

his

section

(in

the

hospital). In

1961, largely because

of

his

docu-

mented

complaints

to

inside officials,

the

Florida legislature established a

committee

to investigate

the

hospital. Id

at

87.

6.

Donaldson

v.

O'Connor,

493

F.2d

507,

510 (5th Cir. 1974).

97 ]



CINCINNATI

LAW REVIEW

diagnosed

as

a 'paranoid

schizophrenic.'

7 The cardinal

characteristics

of

this

disease

are,

first,

that the

patient

makes

claims

about

himself

or

the

world with

which psychiatrists,

and

the

society

they represent,

disagree;

and

second,

that

the patient insists

that

he

is

normal or

sane, while the

psychiatrists,

and the

society they represent,

insist that

he

is

crazy

or

in-

sane.

8

Kenneth

Donaldson

displayed

both

of these

symptoms:

He

claimed

that

he

was

being

poisoned,

while

the psychiatrists

knew

that he

was not;

and

he claimed

that

he was mentally

healthy,

while the

psychiatrists

knew

that

he was

not.

Donaldson's

subsequent

action against

Florida

State Hospital

psychiatrists,

O'Connor

and Gumanis, was

brought

on the ground

that

he was

denied

treatment

for his

supposed

illness.

Such

a contention

is

absurd.

In fact,

Donaldson

objected

to psychiatric

treatment

for two

reasons:

because

he

was

a Christian

Scientist and.

because

he

did

not consider

himself

to

be

mentally

ill.

Donaldson's membership

in

the Church

of

Christ,

Scientist

has

been

un-

derplayed

or ignored

in considerations

of

this case.

As a

practicing

Chris-

tian

Scientist,

he

rejected

doctors

and medical

treatment.

9

As a United

States

citizen, his

right

to exercise

this

prejudice

is protected

by the

First

Amendment.

Thus, Donaldson's

most basic

claim

lay

not

in a

fictitious right

to

treatment,

but in a

very real right

to reject

it,

one which

he

chose

to

exercise.'

0

Furthermore,

the evidence

is

clear

that Donaldson

refused

to

view him-

self

as

patient

and his

captors

as his doctors.

In a

contribution

to the

Georgetown

University

Symposium

on

the

Right

to Treatment,

Donaldson

reaffirmed

this contention, stating

that

nothing was

. .

wrong

with

me

mentally,

morally,

physically,

financially,

or legally (when)

I came

to

(Florida)

rom the

North

as a

visitor in August

1956

Yet without

any examination

by anybody,

I

was declared

sick.

11

It

is ironic

that

Donaldson

successfully

maintained

his

integrity

against

his psychiatric

enemies,

to whom

he never acknowledged

his

need for

psychiatric

treatment,

only

to lose

it

to

his

legal

friends, to

whom he

eagerly

conceded

his need

for it. No sooner

was he

released, after

having

re-

sisted

confessing mental

illness

to psychiatrists

O'Connor

and

Gumanis than

he

turned around

and,

in

effect

confessed

it to attorneys

Birnbaum

n

7

Id.

8

ee

L.

KOLB,

NOYES

MODERN

CLINICAL

PSYCHIATRY

380-82

(7th ed.

1968).

9. 493

F.2d

at 511.

10.

In

1971

the United

States Court

of Appeals

for

the

Second

Circuit

ruled in

favor of

a Christian

Scientist

who sued

Bellevue Hospital

in New

York City on

the

ground

that,

while involuntarily

hospitalized,

she

was given

medication

against

her

will.

The court found

that

the plaintiff

had

a constitutional right

to

refuse medical

treatment

because of

religious beliefs.

Winters

v. Miller,

446 F.2d 65

(2d Cir.),

cert

denied 404 U.S.

985 (1971).

11.

Patient

No.

A-25738, Right

to Treatment

Inside

Out 7

CEO. L.J.

886

(1969).

[Vol.

45



INVOLUNTARY

PSYCHIATRY

Ennis

of the Mental Health

Law Project (Project).

The moral

of

this

distasteful

lesson

is that

institutional

psychiatrists

refuse

to release mental

patients

without

their confession

of mental

illness through

submission

to

treatment and

that

right-to-treatment

attorneys

refuse

to champion

mental

patients who deny

that

treatment

is

needed.

Donaldson

initially

advanced

his

right

to treatment

in a

class action

brought in

the

United

States District Court for the Northern District of

Florida

in February,

1971.

He

sought

damages,

as

well as habeas

corpus

relief

directing

release, on behalf

of

himself and all

members of

the psychi-

atric ward in

which

he was

confined.

Five months later

Donaldson

was

discharged

from the Florida

State

Hospital and

the class

action

accordingly

was dismissed.

The

hospital's

action

spoke for itself.

Presumably,

Donaldson

was released

from

confinement

not

because

he

suddenly

had

become mentally

healthy,

nor because

he suddenly

had

became

non-dangerous,

but

because

sub-

jecting

the

legitimacy

of his

continued incarceration

to a

legal test was

deemed

too

risky

by

his psychiatric

adversaries.

Shortly after the

district

court

dismissed his

initial

action, Donaldson

filed

an amended private

complaint

which alleged

that his

attending

psychiatrists,

O'Connor and

Gumanis,

acted

in bad faith toward

(him)

and

with

in

tentional,

malicious, and

reckless

disregard

of his

constitutional

rights.

2

More

particularly,

he

claimed

that the

psychiatrists had

confined

him

against

his

will,

knowing

that

he

was

not

mentally

ill

or

dangerous,

or

in

the

alternative,

knowing that

if

mentally ill

he was not

receiving

treatment

for his

mental

illness. 3

Donaldson

sought

$100,000

for his injury. After

a

four day trial

in

November,

1972,

he

recovered

$38,500

in

compensatory

and

punitive

damages

from O'Connor

and

Gumanis thanks,

in large

part,

to jury

instructions based

upon a right

to

treatment theory.

The

Fifth Circuit

Court

of

Appeals affirmed

the

district

court judgment,

adopting

Donaldson's

right

to treatment argument.

After reviewing the

facts,

the court

of appeals

held

that a

person involuntarily

civilly

committed

to a

state mental hospital

has

a constitutional

right

to receive such indi-

vidual

treatment

as will give

him a reasonable

opportunity

to

be

cured

or to

improve

his mental

condition.

14

Fittingly,

the court cited

Rouse

v

Cameron

one

of

Judge

David

Bazelon's

signal contributions

to the

ad-

vancement

of

the

Therapeutic State,

in

support

of its

endorsement

of

the

right

to

treatment rationale.

18

12.

493 F.2d

at 512.

13. Id. at 513.

14.

Id.

at

520.

15.

373

F.2d

451

(D.C.

Cir. 1966).

16. There

is a remarkable

similarity

between

the

Rouse

and the

Donaldson

deci-

sions.

In both

cases, judges

claimed

not only that involuntarily

hospitalized

mental

patients

had a right

to treatment, but

also insisted that

an

individual

who

claimed

to

be

well

and

who

rejected

treatment

had

a right

to do

so Dissenting Chief

Judge

976]



CINCINNATI

LAW

REVIEW

At the

time of his commitment,

Donaldson was

a homeless,

forty-eight

year old

man, divorced,

unemployed,

and

living with his aged parents.

It

requires

no great

stretch

of

the imagination to

see that

this living arrange-

ment

might have

been something

less than

ideal for both

Donaldson

and

his parents.

However,

none

of

them faced this situation

directly. Instead,

all

agreed

to

disguise

it

as

a

problem of

mental illness. The

father filed

a

petition

to have

his son

declared

incompetent

and to

commit him

to

the

state

hospital; mother

and son

consented unprotestingly.

Once

arraigned,

Donaldson did

ask for a

lawyer, and

pretended in other

ways to protest

his

commitment.

But these

were merely

dramatic

gestures.

In

fact,

he went

along; he cooperated

fully

in

the

transfer

of

his residence

from

his

father's

home

to the state

hospital.

Whatever

its purported

aims,

justifications, or

rationalizations might

have

been, Donaldson's

original commitment

was a

solution to his

problem

of

housing rather than

to his problem

of illness.

However,

is

compulsory

housing

a

proper remedy for

such

a

problem? I

say

that,

in

a

free

society,

it is

not.

Housing qua

housing

may

be

offered

and perhaps

should be of-

fered, to persons

so

disabled;

but they

should be

left free to

reject such

offers,

and

to

suffer the

consequences.

Those who want

to remove members

of their household (or

others)

from their homes

(or

society) by rehousing

them in the warehouses

now

called mental

hospitals should

not have the

option.

Were

the option

of commitment

removed,

persons

disturbed

by

so-

called

mental

patients

would have to choose

between

living with them

or

divorcing

them. The

problem

of

justifying

civil

commitment

would then

not

arise.

III.

TnE

lUEF

FOR

ON L SON

After the

court of

appeals

upheld

Donaldson's

damage

award, O'Connor

appealed

to

the United

States

Supreme Court.

Donaldson

was represented

once again

by counsel

from the Project

which was advancing

his

claim

as

a

test

case to

further

its own

crusade

for social

reform. As is evident

from

its

name, its

personnel, its derivational

roots, and

from the

brief it

submitted

to

the United

States Supreme Court

in response to

O'Connor's petition

for

reversal, the

Project

was

not

sympathetic

to and did

not

represent

ad-

equately

Donaldson's

interests and,

by extension,

the

cause against involun-

tary

civil

commitment.

Bazelon's opinion

in

the

Rouse case,

Judge

Danaher

observed that the majority

are

deciding a

case which

is not before us.

In the

first

place,

this

appellant

. was

con-

tending

on his pleadings

and at

the

trial that

he was

not insane

and

that

he needed

no treatment.

His own expert, Dr. Marland,

testified

that Rouse was not mentally

ill

.

Id

at

462.

In

short,

Bazelon's landmark

decision in the Rouse

case

rested

on

the paradoxical

premise that the

government

psychiatrists at

St. Elizabeth's

Hospital

who were

denying

patients

such

as Rouse

their

right to treatment

were,

nevertheless,

well qualified

to

determine

whether

or

not the

inmates

in

their

captivity

were mentally

ill and

hence

in

need

of treatment.

[Vol.

45



INVOLUNTARY PSYCHIATRY

According

to

its

own definition,

the Project is

an

interdisciplinary public-

interest

organization devoted

to protecting the legal rights of the mentally

handicapped nd improving conditions

for

their

care,

treatment, educa-

tion,

and

community life.

7 Assuming

the originators of the Project named

their organization

accurately, one would have

to conclude that

it is a

law

project

for

mental health, and not against involuntary

psychiatry. More-

over, by

combining

mental health and

law,

in the name of the Proj-

ect, the originators

imply

that they consider mental health

to

be

as

real

and substantial

as law. Finally,

by using

the

term

mental

health, they

implicitly

assert

the

existence

of

mental illness,

and

their

belief that it

may

be treated and

cured by

medical

treatment.

Each

of

these

beliefs

and

premises

hinders rather

than helps the

cause

of diminishing

and

abolishing

involuntary

commitment. In fact, such

beliefs and premises,

whether wit-

tingly

or otherwise,

may lead the members

and

supporters of

the

Project

to

promote the

very evils it

ostensibly opposes.

The

affiliations

and

writings

of

Project

staff

members and

officers like-

wise

suggest that it is a

proponent

of involuntary

psychiatry. Headquartered

in

Washington, D.C. it employs

ten attorneys

and

four legal

assistants.

The

Managing

Attorney for the Project, Paul R.

Friedman,

unequivocally sup-

ports involuntary

psychiatry and involuntary mental hospitalization.

While

he

concedes

that

competent mental patients

may have a

right

to refuse

treatment they do not want, Friedman

would approve electroshock treat-

ment for

an

incompetent mental

patient

without

his consent,

if

deemed

in

the

patient's best

interest

by a committee of his judicial

and

psychiatric

adversaries.'

8

This position

is

restated and amplified by another Project

staff

attorney,

Joel

Klein.

In a recent

article,

Klein

opines

that one result

of

abolishing

involuntary commitment

will be to ignore

the legitimate treatment

needs

of some people who require care,

but who will

not

accept

it

voluntarily.

19

From

this

he concludes that if

'effective treatment

can

be provided within

a reasonably short period'

sound

social

policy should allow for

a

cur-

tailment of civil

liberties to

permit

it. 2 Thus,

Klein advocates an

even

more

repressive

approach than that of institutional

psychiatry. He supports

involuntary mental

hospitalization not because the

patient

is dangerous but

because it affords his

captors an

opportunity

to give

him treatment.

Continuing

on

this theme,

Klein

emphasizes the catalytic

role

to be played

by involuntary

hospitalization and the

involuntary treatment it permits.

Be-

cause

involuntary

mental patients have a right

to

treatment

but

voluntary

17. The Mental Health Law Project:

Summary of

Activities,

September, 1975,

at

2.

18. Friedman,

Beyond

Dixon: The

Principal or the Least Restrictive Alternative

The Mental Health Law Project: Summary of Activities, March, 1976, at 3.

19.

Klein,

Mental

Health

Law:

Legal

Doctrine

at

the

Crossroads Mental Health

Law Project: Summary

of Activities,

March, 1976, at 7-10.

20.

Id.

976]



CINCINNATI

LAW REVIEW

mental

patients

do not, the

irony is that people who

want mental treatment

frequently

cannot

get

it,

while

those

who

do

not

want

it

sometimes

can.

21

Thus,

without

involuntary

commitment it

will

be extremely difficult

to force

the

state

to

provide

decent

mental

care.

A

similar

bias in favor of

involuntary

psychiatry

can be

detected in

trustees

of

the

Project. Project trustees

cover a

broad spectrum

of person-

alities,

ranging

from

ex-mental

patients

active in

patient liberation

work

to

prominent

institutional

psychiatrists

responsible for

involuntarily

hospitaliz-

ing and treating

alleged mental

patients.

June

Jackson

Christmas,

M.D.,

and

Harold Visotsky,

M.D.,

are notable

members of

this

latter

group. Christ-

mas is the Commissioner

of

the New

York

City

Department

of Mental

Health

and

Mental Retardation

Services. In

that capacity,

she is responsi-

ble

for more psychiatric

confinements annually

than any

other psychiatrist

in the

world. Like Christmas,

Visotsky

is

an institutional

psychiatrist

in the

strictest

sense

of that

term. Present

Chairman of

the Department of

Psy-

chiatry at

the

Northwestern University

School

of

Medicine and

a

former

Director of

the Illinois

Department of

Mental

Health,

his

ideological

and

economic

loyalties

always

have

been, and

continue

to be, to psychiatric

institutions and

not

to

individuals incarcerated

in them.

Such

then, are the

psychiatric

positions of staff

members

and

trustees

of

the organization

which

represented

Kenneth

Donaldson. In sum,

the

central

aim

of the Project

is

to

force the

State

to

provide

involuntary

psychiatric

treatment for

involuntary

mental patients.

This

aim is

not

merely different

from forcing the

State

to

free its involuntary

mental patients;

it is

anti-

thetical

to

it.

For if

there are

no involuntary

patients, there

are

no

persons

with

a

right

to

mental treatment, an.outcome

that

would place the Project's

goal

of

providing

more

and

better

involuntary

mental treatment

utterly

beyond

reach.

The psychiatric

positions

of

the

organizations

which created and

which

now support the

Project raise

equally serious questions

about

the true

aims

of that group. Judging

from

the

loyalties of its

sponsors,

one only

can con-

clude

that

the Project

impedes the

abolition

of

involuntary

psychiatry

by

deflecting

attention

from the actual

wrongs

of

involuntary mental

hospitali-

zation to the

alleged wrongs of

inadequate

psychiatric

treatment

for

invol-

untary

mental

patients.

The

Project is an odd

alliance, indeed.

The

American

Orthopsychiatric

Association

(AOA),

which

created the

Project

in

1972 along with

the Ameri-

can Civil

Liberties

Union

(ACLU),

is

one

of

the premiere

organizational

advocates

of institutional psychiatry.

One of the founders

of the

AOA pro-

claimed that

crime is

a

medical problem

and that

physicians

are a morally,

politically, and scientifically

chosen

elite

whose

duty

it is

to

straighten

out

the crooked behavior

of their

fellow men

and women.

23

Accordingly,

21. Id

22. Id

23.

ee T. SZASZ, IDEOLOGY

ND

INSANITY 220-221

1970).

Vol. 45



INVOLUNTARY

PSY HI TRY

the AOA

long

has

endorsed involuntary

psychiatry in derogation of

patient

rights.

The

law,

wrote Gregory

Zilboorg in a 1939 issue

of

the AOA

Journal,

has

never

been neglectful

of

the

so-called insane. In civil

law, it

is extremely

lenient;

it

commits an

individual

to

a mental institution

with

the

greatest reasonableness and with the minimum

of

difficulties...

24

The

AOA's continued endorsement

of involuntary

psychiatry is evident

from

the

election of Judge David

Bazelon, a prominent proponent

of civil

commit-

ment

and

the

right

to treatment,

as

its

president

in

1969.25

The psychiatric

record

of

the

ACLU also

leaves

much

to be

desired.

During the

first

few decades

of

its existence, the ACLU

paid no

attention

to

psychiatry and involuntary

mental hospitalization.

However,

once

it

did,

it

immediately

embraced

involuntary psychiatry

as

an

answer

to

the problems

of social deviance

and social

control.

In his adulatory

history

of the

ACLU,

Charles

Markham

relates

how,

toward

the

end of the

Second World

War, the

Union

began

to

draft

model

statutes

for the commitment

of

the

insane. 28 The ACLU thus

has a

long

history of uncritically

accepting

the concept

of

mental illness

and of

casually

delegating

its

treatment

by imprisonment

to

the psychiatric

profession.

Although the

ACLU has made some ambivalent

attempts

to

confront the

realities of

involuntary

psychiatry in

recent

years,

its

position on the issue

of commitment

has

remained

pro-psychiatry

and

anti-civil liberties.

7

Due

partly to the

influence of its two

most prominent psychiatric-judicial

experts,

Karl Menninger and

Ramsey

Clark, the Union

continues

to

support

involun-

tary

commitment.

8

Perhaps

the most telling

evidence

that the

ACLU

downgrades

the civil rights of mental patients

is

furnished

by Donaldson,

who writes

that

Project attorney

Birnbaum told

him that he delayed

filing

[the

suit]

because

the

American

Civil

Liberties (Union)

blew hot

and

cold,

due

to

Donaldson's

politics.

9

Thus, based

on

the

loyalties

of the groups composing the Project,

only

two

conclusions

are plausible.

At

best,

it is an

organization

for

promoting

mental

health

reform in the tradition of Dorothea

Dix. At worst, it is an

organization for opposing

the

thrust of the

abolitionist

sentiment

now grow-

ing in the United

States with respect

to mental

health

legislation.

The arguments

advanced and omitted

by the Project

in its brief to the

Supreme Court on behalf of

Donaldson

also

draw

into question that

organi-

24.

Zilboorg, Misconceptions of Legal

Insanity,

9

AM J. ORTHOPSYCHIATRY

540,

550

(1939).

25. ee R. ARENS

MAKE

MAD THE

GUILTY:

THE INSANITY

DEFENSE IN THE

DISTRICT OF

COLUMBIA 1969).

26. C MARKHAN THE

NOBLEST

CRY: A HISTORY

OF THE AMERICAN

CIVIL LIBERTIES

UNION 400

1965).

27. See,

SZAsz

THE ACLU's

Mental

Illness

Cop-out,

5 REASONS

4

(1974).

28. The First Landmark: Mental

Patients' Rights, Civil Liberties,

September,

1972,

at 5.

29. K.

DONALDSON

INSANITY INSIDE

OUT 361 1976).

19761



CINCINNATI

LAW REVIEW

zation's

posture toward

civil commitment.

Ignoring the

indicated

' broad

issue of whether a State

has the power

to commit a person

as

well

as

the

procedural question

of whether the county court

had

jurisdiction to

commit

Donaldson

despite his very short residence

in

Florida

prior to

his confine-

ment, the

project plead

exclusively

for

a

right

to

treatment

or

release.

The Project began

its argument

by

stating

that It]he most

critical

of the

post-confinement rights-the right to be restored

to

liberty

either

by

treat-

ment

or

by

release-has

been

recognized

and endorsed

by medical

experts, by legal commentators, and by

the United States.'30

One of

the

principal

medical

experts listed

under this

heading

was

the

American

Psychiatric

Association

(APA).

In

fact,

the APA was opposing,

not

sup-

porting, Donaldson.

81

Thus,

by making

common

cause with

precisely those

psychiatric interventions, Donaldson

and his

champions

vitiated

both their

arguments and their credibility.

The

APA's

bias in favor

of

involuntary mental hospitalization can be

traced throughout

its long history.

Its

first official

resolution

was

to reject

any attempt

to abandon

entirely

the use of all

means

of

personal restraint.

Abolition

of

psychiatric

confinement,

the

APA claimed,

could

not

be

sanc-

tioned

by

the

true

interests

of

the

insane.

32

This

paternalistic

justification

of

psychiatric

coercion

has

remained a

prominent theme

in psychiatry, not only

in

America but

throughout

the

civilized world.

In

1967-123

years

after the drafting

of its

first

resolu-

tion-the APA

reaffirmed its

support

of

psychiatric

coercion

and

restraint.

In

a Position Statement

on

the

Question of the Adequacy of Treatment,

the APA

declared

that

restraints

may be imposed (on the

patient) from

within

by pharmacologic

means

or

by

locking the

door

of

a

ward.

Either

imposition may be a

legitimate

component of

a treatment

program. As

if

to

emphasize

this

point,

the APA added

that it

would

be manifestly

'poor

treatment'

to release

a

patient

to

commit

an unlawful

act.

3 4

The

Project's legal strategy

was thus

based

squarely

on

wrenching the

na-

ture

and

propriety of

Donaldson's

treatment out of the

context

in

which

it actually occurred. In

my

judgment,

such a

strategy,

especially in

the

hands of persons

ostensibly concerned with civil

liberties,

is

inexcusable.

In a legal system

such

as

ours, the legitimacy of treatment cannot depend

on

its efficacy; instead,

it

must depend

on its being undertaken

with

the

30. Brief for Respondent at

34,

O'Connor

v. Donaldson,

422

U.S.

563

(1975).

31. See Brief

for American Psychiatric Association

as Amicus Curiae,

O'Connor

v. Donaldson, 422

U.S. 563

(1975), published in

132

AM.

J. PSYCHIATRY

1

(1975);

P Enters Florida

Case to Defend

Psychiatrists

9

PSYCHIATRIC

NEWS

1

(1974);

P Sides with Psychiatrists

in Appeal

of Donaldson Case

10

PSYCHI TRIC

NEWS

20 (1975).

32. N.

RIDENOUR,

MENTAL

HEALTH IN TH UNITED STATES 76

(1961).

33.

Council

of

the American

Psychiatric Association,

Position

Statement

on

the

Question of

Adequacy

of

Treatment

23

AM. J.

PSYCHIATRY 1458,

1459

(1967).

34.

Id. at 1458.

[Vol. 45




informed

consent of the patient.

This principle governs regular

medical

and surgical treatment

and

is

supported

by the entire

tradition

of

medical

tort

litigation-that

is, the patient's right

to request or reject

treatment.

With

the

exception

of certain life-saving

measures

imposed

on

unconscious

patients, a medical intervention

imposed

on a

person

without

his

consent

is not treatment

but

assault and

battery. The

excellent

quality of

the

treatment

is not a defense.

By

analogy, it does not

matter whether

involuntarily

committed mental patients

receive

good,

bad,

or

indifferent

treatment or

no

treatment at all.

The very context

in which

psychiatric

interventions

are imposed

on them

renders it impermissible

to call

such

measures

treatment. The

commission

of

such an intervention

constitutes

assault

and battery,

while its

omission is simply

the

absence

or omission of

assault

and battery8

An

even

more

unfortunate aspect of

the Project

argument

was its dis-

tortion

of

psychiatric

history.

Historically,

mental

confinement

had

nothing

to

do with

treatment.

[T]he

existence

of

state

mental

institutions

was

to

safeguard

the individual

and society,

and

to

relieve the

family of the

finan-

cial

and

physical

burden of

caring for the mentally

ill.

6

This

fact

was

adduced

in defense

of

O'Connor.

However, the authors

of the

Project

brief chose to

ignore

it and thereby

threw

away

one

of the

most

important

weapons

in

the

fight

for

freedom

from

psychiatric

coercion.

37

35.

It is

precisely

such

psychiatric

battery

which Donaldson,

through the

Project,

is

now implicitly

endorsing, since

an increase in such psychiatric

assaults probably

will result

from the right

to treatment

ruling handed

down by the Fifth Circuit.

By

holding Donaldson's

attending

physicians liable

for

failure

to treat him,

[make] it

likely

that mental hospitals,

in order

not to be liable

for

not providing

treatment,

will

in the future

force such modes of treatment

as tranquilizers and

ECT

upon

patients who,

as Donaldson

did, refuse

them. Schwartz,

In the Name of Treatment:

Autonomy Civil

Commitment and

the Right to Refuse

Treatment

50 NOTRE DAME

LAW. 808,

809 (1975).

To appreciate the

role

of

the

United

States in

the controversy over

the right

to

treatment,

we

must ponder

the

following two

positions it has

recently taken.

In

January,

1975,

in

a

submission to the

Supreme Court,

Solicitor General Robert

H.

Bork asserted

that the Government

supported

the legal

position that

a

patient

such

as Donaldson

enjoyed

a constitutional

right

to receive such individual

treatment

as

will

give

him

a reasonable opportunity

to be

cured or

to improve his mental

condition.

N.Y.

Times, Jan.

16,

1975,

at

10.

In the summer

of 1975, in

a brief opposing

a suit by

the American

Association

of Physicians and

Surgeons

(AAPS) asking the

Supreme Court to declare

the Pro-

fessional

Standards

Review Organizations

(PROs)

unconstitutional,

the

same

Soli-

citor General, representing

the

same

United

States,

declared

that patients

whose

medical care

is

provided by

public funds

have

no constitutional

right

to obtain

that care from a physician

of their choice.

AAPS Newsletter, Nov.,

1975, at 1-2.

It is clear that

if the United

States supports anything,

it

is

the right

to treat,

not the right to

treatment. Id.

36.

Brief for

Respondent

at 53,

O'Connor

v.

Donaldson,

422

U.S.

563 (1975).

37. See

e.g.

T.

SzAsz,,

THE GE

OF

MADNESS

A

HISTORY

OF INVOLUNT RY

MENTAL

HOSPIT LIZ TION

PRESENTED

IN SELECTED TEXTS (1975).

976]

57



CINCINN TI L W REVIEW

In

the final

analysis, the

Project's claims

are repugnant

because

they

purvey

paternalism

in the guise

of

professionalism,

and substitute

conde-

scension

for

respect.

The public-interest

psychiatrists

assume

the

role

of

doctor

knows best ; the public-interest

lawyers,

that of

attorney

knows

best.

The

former

confine

and treat

their

patients

as

they

deem

fit,

claiming

that

if the patients

only

knew psychiatry, the help they receive

is exactly

what they

would

seek. Similarly,

the latter

litigate

by labeling

their

clients

psychotic

and in

need of

involuntary

treatment,

claiming

that

if

their

clients

only

understood

the

law,

the

legal

help

they

receive

is

just what

they

would

seek.

The

fact

that commitment

might

help

the

patient,

and

that

the

contrived

legal strategy

of

a right

to treatment

might

help

the

client,

only further

complicates

this matter.

Surely,

a

person

who

claims

that

he is

well and

therefore

wants

no

medical

treatment,

is

not

treated with

respect

if

psychiatrists

act

as though

he were mentally

ill, and

lawyers as

though

he had

a

right

to

treatment.

In the

morally

murky waters

of

legal psychiatry,

those

who strive

for

freedom

from

psychiatric

coercion

cannot

afford

to use

immoral

methods

to

achieve their

aims.

Through

its

brief

to

the

Supreme

Court

and,

more specifically

through

its

claim

that

Donaldson

had

a right

to

psychiatric

treatment

while

con-

fined

in the

Florida

State

Hospital,

the Project

has

in

my

opinion,

harmed

rather

than

helped

its

client.

There

are,

basically,

only three

things

a

lawyer

can do

for

a client

victimized

by

institutional

psychiatry.

First,

he can

secure

his freedom;

since Donaldson

was

released

before

he

filed

his

suit

against

O'Connor

and

Gumanis,

he already

had

his

freedom.

Second,

he

can

sue and

try

to

win

money damages

for his

client;

Donald-

son s

lawyers

tried

to

do

this, but

because

of

heir

tactic,

probably

will

fail. Third,

he can

dramatize

his

client's

plight as

the

suffering

of

a noble

soul,

a

martyr

to

a cause,

the

victim of

a social

evil;

it

is

here

that

the

Project

failed,

and

indeed betrayed,

Donaldson.

By

claiming

that Donaldson

had

a constitutional

right

to

treatment

while

in

the Florida

State

Hospital,

the

Project

attorneys

harmed

their

client by

depriving

him

of

his good

name,

his

credibility,

his

sincerity,

his

religion,

and

his sanity.

For if

Donaldson's

own

lawyers

believed

that

he

had

a right

to

psychiatric

treatment

while

in

the

hospital,

it follows

that

they

themselves

believed

that

Donaldson

was

mentally

ill

while

he

was

incarcerated.

If

they

believed

that

he

had

a

right

to

treatment

despite

his

refusal

of

treatment,

then it

follows

that

they believed Donaldson

was

so

mentally

incompetent

while in

the

hospital

as

not to

know

his

own

best

interests.

Finally,

if

they believed

that

he had

a right

to treatment

despite

his

avowed

adherence

to

the faith

of Christian

Science

then

it

follows

that

they

believed

Donaldson's

religious

affiliation

w s

a

sham.

IV.

THE

SUPR M

COURT S

DECISION

IN Donaldson

The

Supreme

Court

technically

affirmed

the Fifth

Circuit

endorsement

of

Donaldson's

right

to treatment

claims.

However,

its

vacillation

toward

[Vol.



INVOLUNTARY

PSY HI TRY

the

monetary

award raises some

doubt as to

the real winner.

The

Court

only

considered

Donaldson's post-confinement

rights.

It

avoided any

discussion

of whether

a

mentally ill

person may

be confined

by the state

and

instead

focused

on whether O'Connor should have

released Donaldson

sooner.

The

Court

concluded

that

O'Connor had waited too

long,

reason-

ing

that a state

cannot constitutionally

confine without more

a

non-

dangerous

individual who

is capable of surviving

safely in freedom

by

himself or

with

the

help

of

willing and responsible

family members

or

friends.

8

However, O'Connor

actually

never violated Donaldson's constitutional

right

to

freedom. He

took

Donaldson

in custody in conformity

with the

regulations of the

Florida

commitment

laws;

he held him in custody in

conformity

with

those

laws; and he allowed him

to file

periodic appeals

for release

with the

courts.

There is evidence that the

Justices

were leaning toward the view that

O'Connor

should

not be held

liable.

They

sent

the

case

back

to

the

district court

for redetermination of O'Connor's liability,

in

the light of

a

standard

of

immunity specifying

that

an official

has

no duty to

anticipate unforeseeable constitutional

developments.

It

seems that

the

Court is

saying two

things: first, O'Connor is innocent of

any

wrong-

doing

and the judgment

against him should be reversed; and second, in

the future, institutional

psychiatrists ought to be nicer to their

institutional

inmates. As

with

slavery before,

the

Justices'

hearts went out

to

the

vic-

tim, but their

minds

supported the victimizer.

40

It

is

difficult

to

see,

given the

strictures of the

Donaldson case,

what else they could have done

that

would have been

better.

One

of

the most important aspects

of

this case is the issue

of

Donaldson's

alleged dangerousness. The lower

courts

ruled that Donaldson

was

not

dangerous,

and the

Supreme Court

based

its

own

decision on

an

uncritical

acceptance

of this

ruling.

Yet,

these judicial pronouncements about the

psychiatrist's

duties toward nondangerous mental patients capable of

surviving safely

in

freedom are

utterly

meaningless,

and

the

decisions

based on them

are necessarily toothless.

By using the term dangerousness

casually

and uncritically,

all

of the

courts

which reviewed the Donaldson case authenticated a term

in

the

debate about

forensic psychiatry which

may

be even more misleading

than

mental

illness

or treatment.

Psychiatric

dangerousness

is

undefined

and

undefinable; moreover, it

is

premised on

a judgment

rendered

in

retrospect.

Mental patients released

from

hospitals

as

nondangerous

sometimes

pro-

ceed

to

injure or kill

themselves or others. It is

then

concluded that they

38. O'Connor v. Donaldson,

422

U.S.

563, 576

(1975).

39. Id

at

577.

40.

See e.g.

R.

COVER JUSTICE ACCUSED: ANTISLAVERY AND

THE

JUDICIAL PRO-

CESS

(1975).

97 ]



CINCINNATI

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REVIEW

were

dangerous

all

along; and the

hospital authorities

are often

held liable

for

their release. To the

extent

the

Donaldson

judgment

rests on his

nondangerousness,

it

could

be,

or

could

have

been,

vitiated

at

any

time

by

Donaldson committing

suicide or

engaging in

some criminal

act-possi-

bilities

open

to

any

human being by

virtue

of his

very

freedom.

Moreover, by couching

their

judgments

in

terms

of

an unspecified non-

dangerousness, the

Justices of the Supreme

Court effectively

have

bypassed

the

crucial

question which underlies

all

of the

controversies of

institutional

psychiatry;

namely, whose

definition

of dangerousness

will the

courts

sup-

port?

A longstanding

tacit agreement

exists between

law and psychiatry

which

permits

the institutional

psychiatrist to call

people mentally

ill and

dangerous, and the

courts

to

support

or to reject

these diagnoses.

Actu-

ally, such

psychiatric

judgments are

usually rubberstamped by

the courts.

In

any case,

it is

clear

that,

for

judicial purposes,

the patient's judgment

of

his

own dangerousness is utterly

irrelevant.

Unfortunately, and perhaps unwittingly,

the

Justices

of

the

Supreme

Court

are

thus perpetuating the

worst intellectual

and

moral

abuses

of

institutional

psychiatry. No institutional

psychiatrist

would agree that

he

is

confining

nondangerous

persons who could

survive safely

in

freedom.

O'Connor

never

agreed that

Donaldson fell

into

that

class;

nor could

any

self-respecting institutional

psychiatrist

admit

that

any of

his

committed.

patients

fall into it.

In

effect,

the

Supreme Court

identified

a class of

mental

patients without

any members.

Worse still

the problem

of Donaldson's

dangerousness is treated

as if

it were

a

question of fact

rather than a

judgment

rendered

by

fallible

and corruptible human beings and

social

institutions-in

particular,

by

psychiatrists and

judges. For fifteen

years, courts ruled

that

Donaldson

was

dangerous.

After he

was

released,

several courts ruled that

he is not,

and

never was,

dangerous. This

only can mean

that the

courts imprisoned

a

nondangerous

person. Thus,

it defies

all

logic to claim

that because

Donaldson

was

so imprisoned,

he

was

entitled

to treatment

while

in

prison,

or

to

damages

from

the

warden

in

charge

of

his

prison.

Several

aspects

of Donaldson

make

it

exceptionally

troublesome

from

a

legal point of view.

Donaldson

was a Christian

Scientist. He requested

that he

be

given

no shock treatment

or drugs,

a request

his psychiatrists

respected.

Yet,

his

suit

was

not for freedom,

but

for money damages

from

his psychiatrists for

confining

him without

treatment.

The abolitionist

cause would

have

been

served best, had the Supreme

Court heard the

case

of a committed mental patient

and

ruled that his

incarceration

was

unconstitutional. In Donaldson

the Court heard a

case

premised

on

the

legitimacy of psychiatric

slavery.

Thus, it was

compelled

to

reach

a decision that

was,

more

or less,

pro-slavery. While

the

Court

could

have reached a

decision

that was even

more pro-slavery

than

the

one

it reached, given the

context

of

Donaldson

it

could

not

have reached a

decision that

was

decisively

anti-slavery. As one

legal

commentator

has

[Vol. 45




put

it:

Donaldson

is but

a first

step in the Supreme

Court's

recognition

of the post-commitment

constitutional

rights of

institutionalized persons

who have

been

involuntarily

incarcerated

after

a

constitutionally

sound

civil

commitment

proceeding.

Ironically,

many

commentators

on

the

Donaldson

case

never

tire of

emphasizing,

with

evident satisfaction,

that

it

marks

the first

time

in

the

history

of the

United States

that

the Supreme

Court

has considered

the

rights

of

the noncriminally

mentally

ill. They fail to

see

this

as

dramatic

proof of

how

stubbornly the

Supreme

Court

has

refused

to face

the brutal

facts

of psychiatric slavery.

In its 186 year history, the

Court tacitly

has

approved

of psychiatric

imprisonment

as medical

hospitalization,

and of

psychiatric

torture as medical

treatment.

Chief

Justice

Burger

was the

only

one among

all of

the

participants in

this

tragi-comedy

willing

to

address

himself to

psychiatric facts

rather

than to psychiatric

fictions. Burger

emphasized

that

Donaldson

consistently

refused

treatment,

and

that

this

had

greater bearing

on

O'Connor's

alleged

liability for

non-treatment than it

had been given.

42

He

also noted

that

O'Connor's

decision

to

detain Donaldson

could not

be considered

arbitrary

or

unreasonable, as it

was

repeatedly

authorized

by

the

courts.

One

of

his

writs

of

habeas

corpus

had

been appealed

to

the

Supreme

Court which

denied hearing

it only one

year before Donaldson

was released.

43

Finally,

Burger

observed

that although states

historically

have applied the

principles

of

parens

patriae

to

the mentally ill,

4 4

[that application]

does

not

justify

the

further conclusion

that

it

may

be

exercised

to

confine

a

mentally

ill

person

only if the

purpose

of

the

confinement

is

treatment.

45

In

the

course

of

his

concurring dissent, Burger

also

remarked

on

the

inadequacy of O'Connor's

legal defense,

especially

in not pressing the

point

that

only

a

year

before

his release,

the

Supreme

Court itself

refused

to hear

one

of Donaldson's

appeals.

46

In the

Donaldson case

the

arguments for

the

psychiatrist-defendants

were every

bit as

inept

as

the

arguments

fo r

the

patient

were

crafty.

It

is

as

if,

while in

the

hospital,

O'Connor

had

all

the

power

and Donaldson

all the

true

words

about

what

was

happening;

while,

once

out of the

hospital, Donaldson

had all

the power

and O'Connor

all the

true words.

Burger concluded

his

remarks

with

the following

important

admonition:

In

sum,

I cannot

accept the reasoning

of

the Court of

Appeals and

can

discern no other

basis

for equating an

involuntarily

committed mental

patient s

unquestioned constitutional

right

not

to be

confined

without due

41.

Muller,

O'Connor

v.

Donaldson: A

Right

to

Liberty

for

the Nondangerous

Mentally Ill 3 Ho NORTH

L. REV.

550 (1975)

(emphasis

added).

42.

422

U.S.

at 579.

43. Id.

44.

Id

at 582-83.

45. Id.

at 583-34.

46. Id. at 579.

1976]



CINCINNATI

LAW

REVIEW

process of law with a

constitutional right to treatment.

Given the

present

state

of

medical

knowledge

regarding

abnormal human

behavior

and

its

treatment,

few things

would

be more fraught

with

peril than

to irrevocably

condition

a

State's

power

to protect

the mentally

ill

upon

the providing

of

such

treatment

as

will

give

(them)

a

realistic

opportunity

to

be

cured.

Nor can

I

accept the theory

that

a

State may lawfully

confine an

individual

thought

to need treatment

and

justify

that deprivation

of

liberty

solely by

providing

some

treatment.

Our concepts

of

due

process

would not

tolerate

such

a trade-off.

Because the

Court of

Appeals'

analysis

could

be

read

as authorizing

those

results,

it should

not

be

followed.

47

According

to the

entire Court,

involuntarily

hospitalized

mental

patients

do

not

have a

constitutional

right

to treatment.

V.

SUMMARY

For

centuries,

involuntary

psychiatric

interventions

were

regarded

as

things done

for

the

so-called

patient rather than

as

things done

to

him.

This

perspective,

which is

still

the

official

psychiatric

posture,

precludes

genuine

reforms

in the

mental

health

field.

In

recent

years,

however,

increasing

numbers

of

persons,

both

in

the mental

health

professions

and

in public

life have

come

to

acknowledge

that

involuntary

psychiatric

inter-

ventions

are methods

of

social

control. With

this recognition,

the

question

with

respect

to psychiatric

reform

becomes

whether

such methods

should

be

retained provided

certain

safeguards

are

introduced

into

their

use, or

whether

they

should

be

discontinued

altogether.

For

moral

and practical

reasons

all involuntary

psychiatric

interventions

should

be

abolished.

This

goal is

attainable.

However,

because of

a

commitment

to

the

medical

perspective

on

human

problems,

efforts

at

a

solution

may prove

to be unpalatable

and

impractical

at

least

for the

time being.

To

attain

that

goal,

it first must

be accepted

that so-called

mental

health problems

are

not medical

problems

but are rather

economic,

moral,

social,

personal,

and

political

problems.

In other

words, mental

illnesses

are

metaphorical

diseases.

4

8

It is

impossible

to understand

the

metaphorical

character

of mental

illness

without

comprehending

the

literal

character

of bodily

illness.

The

accepted

or

literal meaning

of illness

is

an abnormal

biological

condition.

When

mere

complaints

about

one's body

or

about the

bodies

or

behaviors

of

other persons are defined

as illnesses

the term

is

given

a

metaphorical

connotation.

In

short,

bodily illness

stands

in

the

same relation

to mental

illness

as

a defective

television

set

stands to

a

bad

television

program.

Moreover,

when

minds

are called

sick, metaphor

is

strategically

misin-

terpreted

and

systematically

mistaken for

fact-and

the

doctor

is sent

for

to

cure

the illness.

It

is as if

a

television

viewer were to

send

for a

television

repairman

because

he

disliked

the program

he

sees

on

the

screen.

47. Id

at

587 89

48.

Szasz,

Mental Illness

s Metaphor

242

N TURE

305 (1973).

[Vol. 45




Television

repairmen fix

screens

while the

television writers

fix

scripts.

No

one

confuses their

respective functions. But nearly

everyone

now confuses

the functions

of body healers

or doctors

with

those of

mental

healers

or

psychiatrists.

In the end, all

the

seemingly complicated

problems

of psychiatry

and

law are

born

of a

stubborn refusal

to

distinguish between medical and

psychiatric controls.

In

the typical

medical intervention,

the

disease is

under

the

joint control of the

patient and his

physician,

the former pos-

sessing

ultimate legal authority

over his relationship

to the latter,

as

well

as

over

his

disease.

In the typical psychiatric

intervention,

the patient's

liberty is under the control of the

psychiatrist,

who possesses,

through the

courts,

ultimate legal

authority and

control

over

his patient. In short,

doctors

control

diseases,

whereas psychiatrists control

patients....

In Donaldson the

United

States Supreme

Court held for

the

respondent

on

the ground

that he was

confined

compulsorily

in a mental hospital

even

though he

was

not dangerous and

was

not

given

treatment.

Suppose

that

in 1855 there

had

come

before

the

Supreme

Court

the case of a slave

named Donaldson who,

having escaped from

the South

to

one

of the

free

states,

was

suing

his

former

master, O'Connor,

for illegal imprisonment.

Suppose,

further,

that

the

court had decided

that

since

Donaldson

was

not chattel, and,

since

as

a slave

he

was deprived

of work

and

kept

idle,

there was

no

justification for

holding him

in bondage. Would

this

have

been

a good decision?

The

answer depends

on one s perspective.

If

one endorsed slavery

only

because

blacks

are chattels,

and only in

order

to make them work,

then

one

would wholeheartedly

endorse

the

decision.

Alternatively,

if

one believed

that

blacks should be enslaved

because they are black,

and because slavery

is a glorious institution indis-

pensable for the integrity

of

our

nation,

then one would oppose the

decision.

Finally, if

one believed that blacks should

not be

enslaved

at all because

there can be no

slavery

in a free

society then one

would

regard

the decision

ambivalently:

good because it diminishes,

albeit ever so slightly,

the

power

of the institution of

slavery; and bad, because

it

implicitly

legitimizes the

existence

of this

institution,- which is incompatible with

the moral principles

on

which

our society

rests.

The

same reasoning and

conclusions apply to the

Donaldson

case. Re-

place involuntary

servitude with

involuntary psychiatry,

negritude with

schizophrenia,

being chattel

with being

dangerous,

work

with treatment

-and

you

have

the same

situation. By

deciding

the

case as

it did,

the

Court simultaneously

weakened

psychiatric

slavery

and strengthened

it.

It weakened

it by holding, explicitly

that if the patient

is nondangerous

and is

not

receiving

treatment,

then he

may

not be

confined. It strength-

ened it by

holding, implicitly,

that

if the

patient-slave

is dangerous

and

is

receiving treatment,

then

he may be

confined.

Perhaps

some

will

object to

this

analogy

on

the ground

that being

a

chattel and

being

dangerous

are not

analogous. But, from

the

point of

97 ]



CINCINN TI L W

REVIEW

view

of

whether

a person

should

or

should not

be deprived

of liberty,

they

are.

Both

are strategic

ascriptions

justifying

such deprivations.

People

do

not come

into

the world

labeled

chattel

and

not

chattel,

schizophrenic,

dangerous

and not

dangerous.

We

label them.

To

be

sure, some

people

are

dangerous.

Americans

need

hardly

be

reminded

of

this

painful

fact.

But

in American law

dangerousness

is

not supposed to

be

an

abstract

psy-

chological

condition

attributed

to

a person; it

is supposed

to be an inference

drawn

from the

fact that a

person

has

committed

a violent act

that

is illegal,

has

been

charged

with

it, tried

for

it, and found

guilty

of

it.

In such

a

case

he

should

be

punished,

not treated

in

jail, not in

a

hospital.

In

their unanimous

opinion,

the

Justices

said:

We

need

not decide

whether

when or

by

what

procedures

a

mentally

ill person

may

be confined

by the State

on any of

the grounds

which

under

contemporary

statutes

are generally

advanced to

justify

involuntary

con-

finement

of such

a

person.

The crucial question thus remains unanswered:

On

what

grounds,

if

any,

may an individual

be

deprived

of

liberty

by

being

incarcerated

in

a

mental

hospital?

To appreciate

the absurdity

of

the

Supreme

Court's

determina-

tion to

evade

this question

but

nevertheless

rule

on the

Donaldson

case

the

parallels between

involuntary

servitude

and

involuntary

psychiatry

must

be

extended

a little further.

Suppose

that, in

a

society

which

accepted

and authorized

slavery,

an

ex-slave sued

his

former

master

for mistreatment

while

he was

enslaved.

How

could the

issue

of

slavery

be

avoided

in litigating

such

a claim?

The

attempt

to

do

so

would be sophistry.

Yet

all of

the participants

in

the

Donaldson

case

are guilty of just such

legerdemain.

Donaldson

based

his claim

entirely

on

a

deprivation

of his

right

to

treatment.

He avoided

the sensitive

issue of civil

commitment,

as if he feared

that

doing so

would

turn

the

judges against

him.

O'Connor

put

up

no

defense

at all

realizing

that to

admit that

his

real

job was

not to

cure

disease

but

to

control

deviance

would

incriminate

psychiatrists

as

slaveholders

and plantation

operators.

The

Courts

also engaged

in

this

game of

deception.

Instead

of speaking

plainly

about

obvious

facts, they

spoke in

the mendacious

and metaphoric

language

of

madness and

mad-

doctoring about

pretended

purposes.

Having

extended the

parallels

between

involuntary

psychiatry

and

in-

voluntary

servitude,

let

us

assume,

then,

that

in the hypothetical

society

which

accepts

slavery

rules

exist

for freeing

slaves.

When,

in the

master's

professional

opinion, the slave

is idle

and can

live as a free

man,

under

these

rules

a master

must

free his

slave.

Further,

let

us

assume

that a

slave

freed under

this

rule, sued his

former

master

for allegedly

postponing

his

release.

Absurd

as they may

sound,

these

are the

facts

of

the

Donaldson

49.

422 U.S. at

573.

[Vol.

45



INVOLUNT RY PSYCHI TRY

case. Upon them, judgment

was granted

although

the

issue

of

slavery

never was

raised.

Since

the rules

governing release

from psychiatric slavery specify

that

the

institutional

psychiatrist

must discharge

patients

who

he

believes

merit

release, legislatures

and

courts

cannot

give

psychiatrists

discretionary power

to

release

or

to

retain mental patients, and

then

try to regulate

what

is

explicitly intended to

be a

discretionary

power. To

correct the

abuses

of the psychiatrist's discretionary

power in

confining and releasing

mental

hospital

patients,

the

legislatures and the courts

have only

two alternatives.

One

option is for

the courts and legislatures

to

restrict the

psychiatrist's

powers

to

confine

and

release

by assuming

or

arrogating

more of these

powers

themselves.

Such

a

course

of

action would

clearly transform

insti-

tutional

psychiatrists into

wardens,

and

hospital

patients into prisoners.

Another option is

the

abolition

of

psychiatric

imprisonment

and the

whole

system of

involuntary psychiatry.

This

presents

the

dramatis

person e

of

psychiatric

slavery

with

a

wonder-

fully

ironic

dilemma.

At long last,

the

administrators

of

psychiatric

justice

are

beginning to

realize

that they are

sitting astride a

furious

tiger,

which

they are rightly

afraid to dismount.

They

should

never have

tried

to

ride

the

beast

in

the first place.

To

be

sure,

chattel

slavery

and psychiatric slavery

are not identical.

And

1855 is not

1975.

Nevertheless,

the

ideological,

economic,

political,

linguistic,

and legal similarities

between

involuntary servitude

and involuntary

psy-

chiatry

are so commanding

that

they cannot

reasonably be

ignored. When

involuntary servitude flourished,

that institution marshalled

the

combined

forces

of

popular opinion,

science,

economic interest

(for the dominant

classes

of society),

and legal sanction. Now

that involuntary psychiatry

flourishes,

it

commands the support

of the

same

forces.

Between

the birth

of

this

nation in 1776,

and the end of

the

Civil

War in

1865,

the

courts

repeatedly upheld

and

strengthened slavery.

50

A

similar

skein

of legal

decision is

evident with respect

to psychiatric

slavery.

These historical

considerations

suggest

that the

remedy

for

such evils lies not in reforms

through the

courts,

but

in a

change in

popular

passions, or

in

legislative

leadership,

or perhaps

in a

combination of

both.

50

Higginbotham,

acism

and

the

Early merican

Legal

Process 1619-1896,

107

ANNALS OF THE AM ACADEMY

OF

POL SOCIAL

ScI

11-12

1973).

197/61



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Invonlutary Psychiatry

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