Friday, January 02, 2015

Gun Owners & Mental Illness -- Is there a "chilling effect" on seeking treatment?

As you may be aware,  we are in the process of doing research for a book called Committed: The Battle Over Forced Psychiatric Care.  Our plan is to include a chapter on guns and mental illness, and I'm interested in talking to gun owners who believe they are suffering with mental health issues, but won't seek care because they are worried this will impact their right to own firearms.  I'm well aware that gun owners often say they'd never see a therapist, or never take psychiatric medications, but what one does for a theoretical problem may well be different then what one does while they are actually suffering.  So if you'd be willing to share your story of how you are avoiding treatment, or worked your way around your concerns, I'd love to hear from you, either in the comment section of this post, or by direct email to shrinkrapblog at gmail dot com.  Obviously, real names won't be used in a manuscript.  And, as always, thank you for visiting Shrink Rap today and for sending this post to anyone you know who might be interested in participating. 
ADDENDUM:  I'll take any interesting story about the intersection of guns and mental health.  Must be in the US, but from a patient, a doctor, a family member, someone afraid to get care, someone who did get care and had a happy or unhappy outcome...Just a guns and mental health story that's a little more involved then 'my shrink asked me to lock my gun away and I did.'  


J said...

Interestingly enough, just this weekend I have been looking into acquiring a gun for self-defense. However, the gun laws in my state are stringent and you are required to disclose psychiatric treatment, medication, diagnoses, and hospitalization. With a lifelong diagnosis of major depression, anti-depressants and mood stabiliziers, and a psychiatric hospitalization (voluntary), seems like there's no way I'll qualify.

Dinah said...

J -- so how does this work -- if you go to a gun store, do you have to tell the sales clerk your psych history? Are you going to pursue it? Why not? -- Just the assumption that you won't qualify?

Do they ask about a history of violence, suicide attempts, or substance abuse?

If the gun is for self defense, then by any chance did they ask you if you are blind?

Interesting: to own a gun you may have to give a psych history, but to post to my own blog, I had to check a box certifying that I'm not a robot. WhY can't robots post? #robotsarenotallbad

J said...

In my state (NY), you need a license for a handgun. You're asked to include psychiatric treatment, medication, diagnoses, hospitalizations, and contact info for doctors. A quick google will show you the forms you need to complete. My guess is that if you provide all that info in the affirmative, you won't qualify.

I haven't decided if I'll pursue it or not yet. My shrink(MD) told me when all these laws first came up that she had no interest in contributing to these lists. But if she's contacted and asked questions, I doubt she'll lie.

Maybe a robot could get my gun for me.

Zoe Brain said...

Currently, Trans suicide hotlines are reportedly being jammed by DOS attacks from those who want Trans people to die. And are taking concrete action within the law to see that they do.

The lines are jammed now anyway. We're making alternates.

It's an interesting question to ponder as to whether these jammers have lost contact with reality, or are just evil.

In any case, I wouldn't be comfortable if they had access to anything more menacing than a cork and popgun.

Evidence: See
screen capture.

The effect of knowing there are so many with these attitudes, some with real political power, is I feel, likely to be psychologically damaging over the long term.

LM said...

Zoe - that's terrible...but bears no connection to this post.

Dinah said...

J: In NY a psychiatrist is required to report someone they believe is "likely to be dangerous." All psychiatrists are out having their crystal balls updated. Hopefully the state can't contact your psychiatrist and ask for information without your permission. But who knows, in NY apparently they can film people coming into the Emergency Room without their permission and then air your death on television.

Zoe, aren't you in Australia where they don't do guns?

Anonymous said...

so a friend and i were sitting in a city park chatting and didn't realize that it was getting dark until a cop pulled up and asked for our id. when he called in my name, i hear the person mention a firearm restriction.... #funwaytofindthatout i hate being told what i can and can't do. i'm doing well now, and am considering petitioning the court to restore my right to bear arms. i don't want a gun right now (three curious kiddos in the house), but my husband might. he's thinking of working as a cab driver and we live in not the best area. i'm not sure that i'm even allowed to have a gun in the house, and i'm not sure how to really figure that out from a verifiable source. ---liz

Anonymous said...

The courts are beginning to correct psychiatry's abusive role in curtailing second amendment rights.

Last month, for the first time, a federal appeals court declared the federal ban on gun ownership on people who have been involuntarily committed or adjudicated mentally defective unconstitutional because it being too broad.

If this goes to the US Supreme Court it is very likely that the ruling will be upheld given the current composition of the court and the supremes historical animosity towards psychiatry.

ClinkShrink said...

Anon: In the case you cited the only reason the plaintiff prevailed was because his state had no mechanism to return his gun after he was well. His case would likely have had a different result in a state like Illinois where gun owners are able to get a weapon back through a judicial process.

Anonymous said...


Your point is irrelevant to the ultimate conclusion of the 6th Circuit Court of Appeals (which I must say was unanimous), namely, that the current federal restrictions on gun ownership of the so called "mentally ill" are unconstitutional for being overly broad.

If the finding is upheld by the US Supreme Court -assuming that the government appeals-, it will impact states restrictions as well because 2nd amendment rights were incorporated to states and municipalities by the McDonald v. Chicago (2010) decision.

While the SCOTUS blog article focuses on the impact the ruling will have on other gun ownership restrictions, I think that the significance of the ruling for those of us who have been stigmatized by a a DSM label is way more important, namely, the 6th Circuit Court of Appeals said that whichever legitimate interest the government might have in restricting a right of the so called "mentally ill" (such as gun ownership), a law that restricts rights of all "mentally ill" in a blanket fashion as the gun ban did is unconstitutional under the “strict scrutiny” test.

I see this applying to the constitutionality of AOT for non dangerous victims of coercive psychiatry, for instance.

J said...

Dinah: Having spoken with numerous mental health professionals (both my own and in my professional and social circles) when this law first came out, none were prepared to voluntarily report patients as "likely to be dangerous." As far as the gun license, it requests a Y/N answer to "Suffered from mental illness, or due to mental illness received treatment, been admitted to a hospital
or institution, or taken medication? List Doctor’s/Institutions, Name, Address, Phone #, in explanation."
I assume they would contact the mental health clinician; I assume the clinician would refuse to share the information. Who's to say if that's reason enough to deny the permit?
For myself, if I decide to pursue it, I'll just lie. And yes, that does mean I'll be at a significantly higher risk of suicide during my next depressive episode, and I'm sure my shrink will be over the moon if I decide to get a gun. But you know what? It's my decision. CVS doesn't ask my mental health history when I buy the giant bottle of extra strength tylenol.

ClinkShrink said...

From page 33 of the case: "Under this scheme, whether Tyler may exercise his right to bear arms depends on whether his state of residence has chosen to accept the carrot of federal grant money and has implemented a relief program. His right thus would turn on whether his state has taken Congress’s inducement to cooperate with federal authorities in order to avoid losing anti-crime funding. An individual’s ability to exercise a “fundamental righ[t] necessary to our system of ordered liberty,” McDonald, 561 U.S. at 778, cannot turn on such a distinction. Thus, § 922(g)(4) lacks narrow tailoring as the law is applied to Tyler. The following review of the circuits’ post-Heller jurisprudence confirms this. We hold that the complaint, as alleged, states a violation of the Second Amendment."

In the concurring opinion, Gibbons adds that the Michigan law would have been unconstitutional even under the intermediate scrutiny standard which both parties agreed to use in this case so that's really irrelevant. This case is a one-off. Michigan's law was unconstitutional as it applied to Tyler because he was permanently deprived of his 2nd Amendment right with no mechanism to challenge the deprivation. The case was remanded to give the state a chance to respond to his claim and gather more evidence on the issue. This isn't a case that's going to invalidate all Federal restrictions based on mental illness.

Anonymous said...


You might be a shrink, but it is patently obvious that you are no expert in constitutional law. Your cherry picking of quotes is, again, irrelevant.

The SCOTUS blog is considered the premier online source of explanation of federal case law and SCOTUS case law for the press. Among its claims to fame was to correctly call the 2012 decision on Obamacare as upholding the law vs striking it down (as CNN and Fox News had originally concluded after a cursory reading of the opinion).

They say,

"Breaking ranks with other federal appeals courts, and probably setting up a major test case for the Supreme Court, the U.S. Court of Appeals for the Sixth Circuit has ruled that laws imposing controls on the personal right to have a gun must satisfy the most rigorous constitutional test. And, in another split with other courts, it was the first to strike down a federal gun law under the Constitution’s Second Amendment as expanded by the Supreme Court six years ago."

"Because of the brief stay in that institution, however, he is barred for life from having a gun, under the federal law that the Sixth Circuit has now nullified because it failed the “strict scrutiny” test."

"While the decision found that the provision of federal gun law that bars guns for anyone ever sent to a mental care facility could not satisfy “strict scrutiny,” the Sixth Circuit did not immediately rule that the individual involved in the case, Clifford Charles Tyler, must be allowed to have a gun right now."

Meaning, it is the law itself that doesn't pass the “strict scrutiny” test, not the application of the law to the particular case. The ruling means that the federal restriction of gun ownership to the "mentally ill" as a class of people is unconstitutional for being overly broad. And again, the Chicago (2010) case also said that second amendment rights also apply to states and municipalities. If this ruling is upheld by the US Supreme Court, it will mean an end to the gun ownership bans to to the so called "mentally ill" at both the federal and state level as we know them now. Future bans will have to be more specific and, likely, limited in time.

Anonymous said...

New York is a nanny state. They're busy filling up their database with people who aren't even statistically likely to use a gun on anyone. How many women are in their database? It's just one more way to make people with a diagnosis of mental illness second class citizens. There's no evidence it's making the world any safer.

My understanding is that in my state you cannot buy a gun if you've been involuntarily committed (that may be a federal law?). My parents have encouraged me to get one as I live alone in a city with a high crime rate, but I don't have any desire whatsoever to own one. Legally, I could buy one as my hospitalizations were classified as voluntary, and one was an emergency detention - no involuntary commitments on my record. I haven't been hospitalized in over 12 years.

Putting people with a diagnosis of mental illness in a database might make a bureaucrat feel like they accomplished something, but it wouldn't do anything to prevent people from having access to a gun. Both of my parents have a license to carry, and most of the people I know have at least one gun in their house. If someone wants a gun in the U.S., you can be sure that they will have no problem obtaining one.


ClinkShrink said...

Anon, I understand what you're saying and I know what the SCOTUS blog is. It doesn't take a constitutional scholar to know that there's a pretty big leap from a single CoA opinion to a SCOTUS decision. We disagree on the impact that this case will have. In the dicta of the Tyler case the majority acknowledges that restrictions on the mentally ill may be constitutional when the individual is presently dangerous, and the Federal law does not apply to ALL mentally ill people, just those who have a prior finding of dangerousness through a civil commitment hearing. As far as what the SCOTUS would decide if it grants cert, remember that this is the same SCOTUS that decided it's OK to commit a sex offender indefinitely even in the absence of any recent overt act of violence. A SCOTUS decision might clarify or refine the Federal restriction, but I doubt very much it would throw it out entirely.

Anonymous said...


It's a court of appeals decision -a unanimous one- that breaks with case law by other circuits. That creates a split among the circuits, which makess it more likely that it will be granted review by the SCOUTS.

With respect to SCOTUS case law on the commitment of sexual offenders, I believe you are stuck with Kansas v Hendricks (1997) decided 5-4. A latter ruling Kansas v Crane (2002) upheld that,

"The court decided, in a split 7–2 opinion that the Constitution does not permit commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control evaluation"

The Wikipedia page further states, citing an evaluation of the ruling by the federal Department of HHS,

"This ruling will make it substantially more difficult for States to place sex offenders in civil confinement after they've served their sentence"

Then there is Clark v Arizona (2006), in which not only the "psychiatric side" lost, but the majority opinion cited CCHR material,

"I should have been thrilled. And I was, for five minutes. "Your book about psychiatric diagnosis was cited in the latest United States Supreme Court decision," read a colleague’s email message to me.

For five minutes I felt gratified, thinking my report that many psychiatric diagnostic categories are unscientific had been helpful. Then I saw that what the Clark v. Arizona decision, the last in the Court’s most recent term, included was a serious mischaracterization and misapplication of my work. I wondered how the Court had heard of my book and soon discovered that the writer of an amicus curiae brief had cited it in a way that, through implication and omission, was misleading.

When I discovered that the "Citizens Commission for Human Rights" (CCHR) had submitted that brief, it struck me that a Justice would be unlikely to know that the Church of Scientology founded and remains closely tied to the CCHR."

So! Historically, with few exceptions, the SCOTUS has been an effective weapon against psychiatric coercion. Most "landmark" cases in the area of so called "mental health" side with the victims of psychiatry, not with their shrink oppressors.

The current SCOTUS majority is definitely pro second amendment - it has produced the Heller (2008) and Chicago (2010) cases that declared the second amendment right a constitutional right that is incorporated to states. The federal ban on gun ownership for the so called "mentally ill" precedes these two cases. The 6th circuit case is the perfect test case to strike the ban down nationwide for being too broad. You can be sure that if this case makes it to the SCOTUS, the NRA will lobby to strike down the law since they celebrated the 6th circuit case in their website.

ClinkShrink said...

I don't have any doubt that the NRA will lobby to strike down a gun control law.

Regarding Hendricks and Crane, those cases pretty much make my point that the SCOTUS is unlikely to entirely overturn a law which they feel would protect the public from the "dangerous mentally ill." Far from being a smackdown of psychiatry, these cases were a smackdown of psychiatric patients by upholding the constitutionality of indefinite commitment---a position that the American Psychiatric Association opposed in briefs on both cases.

Clark v Arizona is less about psychiatry and more about the right of states to bar an entire class of testimony for certain purposes; I don't see this as being quite as relevant to the fundamental constitutional rights of psychiatric patients as either the gun case or sex offender commitment cases.

Anonymous said...


It seems we are not reading the same things. The Department of HHS interpretation of the Kansas v Crane decision is very clear that that decision means the the ability of psychiatrists to commit criminals beyond their respective sentences because "psychiatrists say so" is very limited in the aftermath of said decision. If you don't see that as curtailing psychiatrists' abusive powers, well, that's probably because you live in your own bubble.

With respect to the Clark v Arizona decision, I am a strong opponent of "guilty by reason of insanity" pleas, which is yet another way in which psychiatry perverts civil society. That decision moves us further in the direction that a shrink's opinion in forensic matters will be about as legally valid as an astrologer's. With the science at hand, psychiatrists have never been better at predicting violence than astrologers, so it is a good thing to see the courts recognizing that reality.

Finally, I don't think that you grasp the significance in the NRA's embracing of the ruling (or other initiatives last year fighting mental health laws that sought to lower the standard of civil commitment). In the aftermath of Newtown, the NRA was quick to blame the problem of mass shootings on the so called "mentally ill", that is until they understood that it was a backdoor to gun control given psychiatry's pseudoscientific status. They have been fighting psychiatry ever since.

ClinkShrink said...

This quotation is from the web site you sited for Kansas v Crane:
"Both rulings upheld the constitutionality of the “Kansas Sexually Violent Predator Act.” While the DHHS speculated in 2002 that this would restrict the number of people being committed, this isn't actually what happened. Crane reaffirmed the government's right to do this (in opposition to the wishes of psychiatry) and added the requirement that the state prove some degree of lack of volitional control in order to maintain that constitutionality. Otherwise, like in the Tyler gun case, the appellant could have had the law thrown out on the basis of being overly broad (applying to all sex offenders, not just those lacking some degree of volitional control).

Since Crane, the number of states with commitment laws has risen, as has the cost of commitment and the number of committed people (see also the NYT article here). The NYT also has a good discussion of the SCOTUS opinion breakdown in the 2010 decision US v Comstock, the latest sex offender commitment case.

The upshot of all of this is that to me the current mood of the SCOTUS is to lean in favor of restricting the rights of people with psychiatric disorders, as long as there is accompanying evidence of impaired decisional capacity, need for treatment, or dangerousness. Getting back to the original starting point of our discussion, that's why I think the 6th Circuit opinion is unlikely to toss out the gun restriction law.

Anonymous said...

Again, we must be reading these decisions differently. You are entitled to your own opinions, but not to your own facts.

The two decisions I mentioned - Kansas v Crane and Clark v Arizona- put constitutional limits onto psychiatrists' ability to influence either the decision of locking up somebody for life (the figure you provided still proves the point; 2,700 is a tiny amount of people in a country with 320 million people and 700000+ registered sexual offenders; 0.4% of all registered sexual offenders were eligible for indefinite commitment under the strict constitutional standard) or to spare people from punishment.

There is also the 2003 US vs Sell decision that again limits psychiatrists' ability to forcibly drug a criminal defendant. The court green-lighted that as long as it served a compelling government interest (again, strict scrutiny) and not because of "need for treatment". From the NY Times,

" Joshua Dratel, a defense lawyer in New York who worked on a brief on Dr. Sell's behalf for the National Association of Criminal Defense Lawyers, said in an interview today that the court's concern for the potential side effects of antipsychotic medication should prove beneficial to defendants.

"It is widely underappreciated that the defendant has a right to be functional at his trial," Mr. Dratel said. He explained that medications that interfere with alertness or that cause headaches, rashes, or other distracting problems can compromise the ability of defendants, even those who are technically competent to stand trial, to help their lawyers and to make a favorable impression before the jury. "

So while, I see psychiatry increasingly losing its battles in the US Supreme Court -because they limit things that prior to said decisions psychiatrists were able to do easily-, for some reason, you think that these defeats are victories.

The standard "need for treatment" is not constitutional under US laws. Judge Napolitano explains here.

If anything, our country is becoming more libertarian, not less and the US Supreme Court decisions reflect that.

For example, recently, Maine lost its battle to forcibly quarantine a nurse that had come to the US from an Ebola stricken nation. The government couldn't meet its burden, even though in the case of Ebola the scientific case for quarantine is clearer than any of the rationales psychiatrists use to put forward their own cases. Still the local court ruled that people have a fundamental right to personal freedom that cannot be taken away for non criminal matters unless a high burden is met.

ClinkShrink said...

Ugh, blogger ate my long comment. Our readers may be relieved by that (if they've hung on to the thread this long).

Prior to Sell, psychiatrists had no ability to treat a non-dangerous, incompetent criminal defendant. After Sell they could, but only if there was (as you state) a compelling government interest in prosecution (whatever that means). So I'm having trouble understanding how you would see that as a step to limit psychiatry.

Setting sex offenders aside for a minute (since we really don't know the base denominator you cited---not all sex offenders would be eligible since not all would have the requisite mental disorder), I'll move on to insanity. I think if SCOTUS really wanted to get psychiatry out of the court room they could do so at any time. They could have done it in Clark by addressing the issue then but they chose not to. Again later they could have granted cert to Delling v Idaho to support the states' ability to abolish the defense but they did not. It's clear from the published dissent to the denial that Breyer, Ginsburg and Sotomayor were inclined to uphold a constitutional right to an insanity defense.

Anonymous said...


Let me see. On the total number of registered sex offenders, here are the statistics. I am not making this up. Having 2700 of those locked up is almost insignificant.

On the general point. You seem to be confused about the Sell and other cases. Prior to the Sell case, psychiatrists DID forcibly drug criminal defendants, only they did it without the defendant having much recourse to a defense. Afterwards, the court said that unless there was a compelling government interest, psychiatrists couldn't do that.

With respect with the meaning of "strict scrutiny", You seem confused as well about what it means. No right included in the US Constitution is absolute, including the first amendment rights. Landmark rulings on fundamental rights, usually clarify how and when it is possible to do things that prior to those rulings were done without regard to its constitutionality.

For instance, prior to Connor v Donaldson (1975) psychiatrists could lock up pretty much anybody they wanted. After that not so much. And the results showed. The civil commitment rates in the United States went from being similar to the rates you can find today in a country like Finland or Norway (that have "need for treatment" commitment standards) to the civil commitment rates you can find in France or Italy, countries in which its citizens enjoy strong protections against involuntary psychiatric interventions. For the people who could have been victimized in the United States with a civil commitment prior to 1975 but who were able to lead productive lives afterwards (the overwhelming majority of those who were civilly committed), the ruling was a win.

On the point about the abolition of psychiatry, you are making a straw man. There are two ways you can get rid of something. You can either ban it (that's the totalitarian way) or you can tax it ("tax" understood broadly as meaning putting burdens on it). The rulings I have mentioned belong to the "tax" category. Take your own article about the 2700 sexual offenders being involuntarily committed. It said that the cost of having them committed under the conditions spelled out by the US Supreme Court is 4 times higher than the cost of having them incarcerated. That onto itself is a taxing mechanism. States are not going to seek commitment unless they make sure that the person they are seeking to commit is the worst of the worst.

I doubt that the US Supreme Court will ever declare coercive psychiatry unconstitutional on a blanket matter because psychiatry is today's government's legal mechanism of social control, as Bruce Levine explained recently in MIA. What these rulings do is to make the application of said mechanism more difficult, increasing the freedom of psychiatry's victims in the process.

ClinkShrink said...

The effect of Crane has to be measured by the change since that time, not solely by an absolute number or percentage. And we can't accurately judge the percentage of people committed because all sex offenders aren't all eligible for commitment, statutorily or clinically. Although I agree with you about the "tax" effect, which is containing the spread SVP laws at least in my state. Regardless, I think it's wrong to blame the entire profession of psychiatry for SVP laws which my profession opposed but which SCOTUS imposed upon society to respond to irrational fears of dangerous sex offenders.

Taking the longer historical view, as you did, highlights that many legal and social trends follow the path of the pendulum. In the 1960's and '70's we had the introduction of due process protections for civil commitment with Fasulo v Arafeh and Lake v Cameron (stepping away from SCOTUS for a moment). We had the right to treatment cases. Then came Tarasoff and the derivative third party duty cases. It seems we swing between fear for the mentally ill and then into fear of the mentally ill. And now, following 9/11, the Patriot Act, Virginia Tech, Aurora, and Sandy Hook we have entered the extreme fear of the mentally ill (and many other classes of people) era. I suspect that these are the forces driving most of what we've been discussing, and which psychiatry unfortunately has been unable to curb.

Anonymous said...

I just think that the whole concept of SVP is wrong.

If society wants to get rid of the most dangerous sexual offenders, the right way would be to change the criminal laws so that these people are jailed for life or sent to the death row. It would be cheaper for society too.

I don't buy the notion that SVP laws imposed on psychiatrists things they didn't want to do. Perhaps a big chunk of the APA (including its leadership) didn't want to take part of it, but last time that I checked in the United States there are strong conscience protections that prevent both the federal and state governments from forcing doctors to do things they don't want to do a matter of conscience (such as abortions). Not to mention that being a "forensic psychiatrist" is a choice among the many things a certified psychiatrist can do with his/her training.

The reality is that there are many psychiatrists who would be otherwise unemployed who gladly take part of the SVP and other "forensic psychiatry" charades.

You should read the article by Bruce Levine. He gives the real reasons why psychiatry continues to be legally endorsed by governments to begin with. It is not because it has valid scientific foundations or because it helps a lot of people, rather, it is because it is the premier legal tool in our Western societies for governments -and families- to do social control outside the criminal justice system.

ClinkShrink said...

I totally agree about the SVP laws. I knew if we kept at this long enough we'd eventually agree about something, by chance if by no other reason.

I'm curious to get a better understanding of your views, so bear with me for a bit.

Assume a state had a civil commitment procedure that totally excluded all mental health testimony. Commitment decisions are made by a jury, based solely upon fact witness testimony, using something akin to a res ipsa loquitur standard. Would that be acceptable?

Or is it your position that under no circumstances should a government have the ability to restrict freedom based upon some standard of deviant behavior apart from criminal conduct?

Anonymous said...

Involuntary commitment mechanisms make as much sense as if we would let state bars write their own criminal laws and enforce them too. For a behavior to be deemed criminal, it has to be written into the law, specifically, by the legislature. These legislatures are accountable to the people. Then, the enforcement of said laws is left to judges who, in most cases that involve ordinary people, are elected state judges. And then, deprivation of freedom requires "probable cause" that a crime HAS been committed for the initial arrest while a finding of guilt requires proof "beyond reasonable doubt" that a person has committed the crime.

With civil commitment laws, psychiatrists have a blanket right to write into their book (the DSM) the set of behaviors deemed "pathological" because they say so. And in practice, they have also a right to enforce those behaviors since, with few exceptions, so called "mental health" laws rubber stamp whatever psychiatrists decide. Worse, despite the fact that several rigorous studies show that psychiatrists cannot predict who is likely to become violent and when, these procedures allow for the commitment of somebody for what that somebody MIGHT DO in the future. It is pure "pre-crime", "Minority Report" type of totalitarianism.

So to me, the whole thing has to go in its current form. And so you cannot accuse me of dodging the question, I do not believe either that government can ever restrict the freedom of any individual for "the individual's own good". It is one thing what happens in cases like the Ebola nurse (where the state sought to prevent the Ebola virus to be spread -ie, a "compelling government interest"), quite another what happens with say AOT procedures. In other words, I do not believe in government paternalism of any kind.

Anonymous said...

Part two

This is compatible with me admitting that there are extraordinary occasions when individuals might have to be deemed incapacitated to make their own decisions, such as in the case of individuals in advanced stages of Alzheimer's or people who are in a coma. In these cases, I also believe that the incapacitation decision has to be done by a jury, not by "professionals" (the right to a jury trial for incapacitating procedures is recognized in several states). Let's face it, though: the overwhelming majority of people who have been targeted for involuntary psychiatry in the United States (be it civil commitment, forced drugging or AOT) would not have been able to be deemed incapacitated by their respective states' incapacitation laws. In fact, AOT statutes target specifically people who are NOT deemed incapacitated.

Whether you like it or not, the use of "professionals" to restrict people's freedom for the people's own good is totalitarian. Totalitarian regimes of all sorts have used these professionals for as long as humans have existed. Even primitive societies had (have in some areas of Africa), shamans.

So, this is where I stand. I have yet to meet a single psychiatrist who doesn't believe in psychiatric coercion "in some circumstances", even these circumstances vary from psychiatrist to psychiatrist. And the reason is not hard to understand. If psychiatric coercion were to be banned, psychiatry would disappear. For psychiatry to continue to exist as an endeavor that allows doctors to make money, coercion needs to be part of the equation, which is why the APA has always actively opposed attempts at restricting its blanket civil commitment rights. In O'Connor v Donaldson, the APA actively lobbied the US Supreme Court against ruling the way they did. Even in the years that followed, one could read in forensic psychiatric circles articles that used the best spinning tactics that spin doctors are capable of to say why the decision needed to be overturned. This article remains a classic in psychiatry's ability to spin facts when it comes to defending its civil commitment prerogatives.

ClinkShrink said...

Sure, you could create a capacity-based commitment procedure that requires a jury. You could demand proof beyond a reasonable doubt. You could bar expert testimony from the hearing, I guess, although good luck finding a judge who would want to disallow that evidence. I'm just not sure you could completely take physicians out of the picture even with those changes. Capacity to make medical decisions implies that someone needs to know what treatment is recommended, what risks are inherent, and to assess whether the individual understands those risks. That's not something a lay witness is going to be capable of. Also, most incapacity is temporary. You'd need a medical judgment about prognosis to determine when to reassess the continued need for guardianship or substituted consent.

It seems to me that your beef should be as much with the legislators who write and pass these commitment laws, and with the public defenders who fail to vigorously represent their clients, as with the profession of psychiatry. If society really wanted to abolish civil commitment in its entirety, it could, through the established legislative process. Nevertheless, psychiatry would not disappear. There would still be more than enough people who seek treatment voluntarily. There aren't enough psychiatrists now to care for all the people who want care, voluntarily.

We could revert back to the society we had before there were any commitment laws, and before there were any psychiatric hospitals or psychiatrists to run them. I'm not sure psychiatric patients would be much happier locked up in the family attic, though.

Regarding O'Connor, SCOTUS did not rule against the APA. I could post bits of the amicus if you like, it's short. They were in favor of finding a constitutional right to treatment and encouraged the court to grant cert.

Anonymous said...


Several issues.

First, I hope you recognize your straw man when you say that the APA, in O'Connor v Donaldson advocated that the 14th amendment guarantees a right to treatment to involuntarily committed persons in state institutions, psychiatrists employed at those institutions should be immune from personal liability for non-treatment. The whole point of that case was not "right to treatment" but "right of States to lock up people". And the position advocated by psychiatry, namely that the standard for civil commitment should be "whenever some psychiatrist says so" lost.

Second, if you have some amicus brief by the APA in which it explicitly, in a blanket manner, the APA advocates against all forms of involuntary commitment, then I would love to see it. I am afraid I am not going to get such amicus brief -hint in the amicus submitted by the APA in the Sell case, the APA advocated for a "need for treatment" standard that lost at the SCOTUS. Without coercion, the APA would be about as relevant as astrology. There would be people making money out of it to be sure, just as astrologers today make money out of astrology, but it would not command any kind of respect in society. Now it doesn't command any sort of intellectual respect, but it commands fear, which is a good substitute for respect.

Finally, I take issue with your contention that expert testimony is needed in capacity hearings. Today, if you have AIDS and you don't want to receive HAART, you have a right to refuse treatment. The same is true of cancer patients who refuse chemotherapy or kidney/liver patients who refuse a transplant. In these matters - where there is no compelling government interest at stake such as transmission to other people- , adults enjoy a blanket right to refuse treatment unless they are deemed incapacitated. And in determining whether the patient is deemed capable of making a decision on the matter, their expertise on the underlying disease is completely irrelevant. Legal capacity is something entirely different from understanding the underlying disease mechanisms or the consequences of "non treatment".

Children are another matter. Every controversial case that makes it to the press these days involves some zealous "professional" working for a state agency that gets in the way of parents' rights. Assaulting parents' and children's rights is about the only market left for psychiatrists with existing SCOTUS case law. The other market is seniors in nursing homes. Outside these two markets, existing SCOTUS case law acts as an effective tool to oppose psychiatric coercion.

It is been interesting to debate these issues but I think I have nothing more to add. To summarize: I don't like psychiatry or psychiatrists. I think that on balance, psychiatry does more harm than good - by a huge margin- as shown by the fact that it is the only so called "medical specialty" that has an entire grass roots movement of survivors opposing it: the antipsychiatry movement with which I am 100% aligned. The "alternative medicine"/"anti vaccination" movements are jokes in comparison. Those of my point of view will continue to work until psychiatric coercion is completely banned either de jure or de facto. I think though, that during the last 40 years, things have been moving in our direction rather than against us.

Anonymous said...

After discharge from inpt. care for MDD etc. my insurance co. assigned a nurse to call periodically and chat. On one call I told her that I had recently bought a gun to "keep my options open". 30 mins. later a county police officer drove up (I was gardening) and asked me if I had said these things. I said yes and he handcuffed me and took me on an EP to the local ER. I spent a week as an involuntary inpt. only gaining release when I cancelled the gun purchase with the auction house. Also, I lied when I originally filled out the paperwork for the purchase.