Mental Health Cases Fuel: Rights vs. Safety Debate

By Thai Phi Le

When Jared Loughner first enrolled full–time at Pima Community College in Tucson, Arizona, in 2007, he was just the odd student in the classroom that no one paid mind to. As the semesters continued, however, he exhibited more odd behavior and the number of bizarre disturbances began to increase.

He would go on rants, make incoherent arguments, and intimidate his teachers. He once confronted his Pilates instructor about his grade, aggressively arguing that the B he received was unjust. She later stated in a police report that she worried the argument would become physical. The encounter left her shaken. In another instance, Loughner interrupted math class to debate extensively with his professor that he should be allowed to refer to the number six as the number 18 if he wanted to.

Between February and September 2010, police were called five times to deal with his outbursts. He made YouTube videos stating that the government was attempting to control people through grammar, and another calling his “genocide school” unconstitutional.

On January 8, 2011, less than four months since his last encounter with police, the strange student became a 22-year-old murderer, killing six people and injuring 14 others, including U.S. Rep. Gabrielle Giffords, during a shooting rampage.

The Arizona attack is the most recent in a list of mass shootings from seemingly unstable individuals. During the Virginia Tech massacre in April 2007, Seung–Hui Cho killed 32 people and injured 25 others. In February 2010, Amy Bishop, a professor, killed three colleagues and wounded three others at the University of Alabama, Huntsville. Both exhibited signs of potential mental illness.

After the Arizona shooting, the story was splashed across newspapers nationwide and difficult questions were posed. Why weren’t the warning signs acted upon by local authorities? Could Loughner’s murderous spree have been prevented by more vigilant law enforcement? Would stricter involuntary commitment laws have saved lives? In short, did the mental health system fail the community? If so, can the law and the health care system be reformed to better protect both the mentally ill and society at large?

The Early Days
Treatment of the mentally ill has a sordid past. Throughout the early to mid-1900s, several states enacted eugenics sterilization laws allowing for the sterilization of the “insane” and “feeble–minded.”

According to the Eugenics Archive, which is run by the Dolan DNA Learning Center, Virginia adopted the Eugenical Sterilization Act in 1924. The law focused on “defective persons” to decrease the chances of “transmission of insanity, idiocy, imbecility, epilepsy and crime,” and to help save money in funding public psychiatric hospitals.

Under the law, 18–year–old Carrie Buck was the first to be sterilized. Her guardian attempted to appeal the procedure, but to no avail. Prosecutors paraded a slew of witnesses to discuss Buck’s mother, who resided in a mental institution, as well as experts who spoke about the teen’s alleged promiscuity and lack of intelligence.

The case, Buck v. Bell, eventually went to the U.S. Supreme Court, where her lawyers argued that the due process clause of the Fifth Amendment gave Buck the right to have children. In addition, by sterilizing her and not all others in similar situations, the state was violating the equal protection clause of the Fourteenth Amendment. In an 8–1 decision, the Supreme Court ruled that the Virginia State Colony for Epileptics and Feebleminded, run by Dr. James Hendren Bell, could sterilize Buck.

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence,” wrote Justice Oliver Wendell Holmes in the majority opinion. “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”

By the time the Eugenical Sterilization Act was repealed in 1974, Virginia had sterilized 8,300 people.

Among the most common and now reviled treatments of the mentally ill is the lobotomy, which removes the frontal lobe of the brain. The popularity of the procedure soared in the 1940s. According to the PBS documentary The Lobotomist, 150 lobotomies were performed in 1945. By 1949, the number had skyrocketed to 5,000 annually. While the surgery left patients calmer and less agitated, many reverted to vegetative or child-like states.

Electroconvulsive therapy (ECT) remains a controversial treatment today, with patients restrained and seizures induced to relieve symptoms of mental illness, particularly depression. Critics argue that ECT causes permanent brain damage.

In addition to controversial and sometimes inhumane therapies, public psychiatric hospitals faced serious issues of understaffing and overcrowding as the number of patients grew exponentially. Abuses ran rampant. With limited criteria, asylums filled up with people from all walks of life. While some were in desperate need of care, others were simply outlier members of society or people who were difficult to take care of, including the elderly and alcoholics. Many people were imprisoned in mental institutions for years on end—some with no plausible reason for confinement, and others with no promise of treatment to get better.

Dr. Morton Birnbaum, both a lawyer and doctor, sought to change this. As one of the first advocates of the mentally ill, he authored his seminal article “The Right to Treatment,” which was published in the American Bar Association Journal in 1960.  Indefinite confinement without adequate treatment was a violation of a person’s Fourteenth Amendment right to due process and liberty, he argued. If people were to be confined against their will, then they should be afforded adequate care to help them get better. Birnbaum stated that without proper treatment, mental institutions were acting simply as prisons and depriving people of their freedom for an indeterminate amount of time. “[B]eing mentally ill is not a crime,” he wrote.

Birnbaum’s article and its ideas were later cited by D.C. Circuit Judge David Bazelon in his opinion in the 1966 case Rouse v. Cameron. In the case, 18–year–old Charles Rouse was charged with carrying a weapon without a license. He was committed to St. Elizabeths Hospital in Washington, D.C., after he was found not guilty by reason of insanity. After many years, he petitioned for his release, stating that his attorney entered the insanity plea without his consent.

Overseeing the case, Judge Bazelon said the government had an obligation to provide treatment to patients confined in mental hospitals. The case marked the first time that an appellate judge stated that a person has a right to treatment when civilly committed.

With Rouse v. Cameron, the legal landscape regarding treatment of the mentally ill began to shift. Slowly, more cases made their way up to the Supreme Court.

As his concept gained public attention, Birnbaum was contacted by Kenneth Donaldson, who sought his help to file a case against the Florida State Hospital. Donaldson, at the urging of his parents, checked into the hospital in 1957 after showing signs of delusion. This was his second stay at a mental health facility.

While at Florida State Hospital, Donaldson was diagnosed as a paranoid schizophrenic, but presented no danger to either himself or others. He petitioned for his release numerous times, stating that he was not receiving adequate treatment at the facility. Donaldson cited the fact that he rarely interacted with the hospital staff, was not permitted to engage in activities that would help him establish independence to make him ready for future interaction in society, and was simply receiving custodial care.

With Birnbaum’s help, O’Connor v. Donaldson reached the U.S. Supreme Court by 1975, which ruled that after 19 years of involuntary confinement, Donaldson should be released because he did not pose a threat to anybody.

Cases like Rouse v. Cameron and O’Connor v. Donaldson put the spotlight on the treatment and rights of the mentally ill, and the movement to deinstitutionalize many of them gained traction. States initiated the process of closing down mental institutions, and patients were released back into the community. The original goal was to create community-based programs to help reintroduce the patients into the general population, but those failed to materialize.

Instead, thousands of previously institutionalized individuals and their families were left to fend for themselves with limited access to treatment and important programs such as supportive housing or job training to keep them on track.

The Legislative Response
As states began deinstitutionalizing psychiatric patients, lawmakers sought to address the problems posed by the shifting legal landscape by enacting new legislation. The publicity and precedent created by the cases before the Supreme Court placed greater emphasis on ensuring proper care and prevention of unnecessary confinement.

To meet these demands, Congress—under the leadership of President John F. Kennedy—passed the Community Mental Health Act in 1963, which provided federal funding for community–based mental health facilities. In addition, the legislation provided grants to states to help build local mental health centers.

Unfortunately, some states simply closed down their money-draining state hospitals and did not establish community health centers to help those in need of mental health care. Some patients were again without adequate treatment, but this time, instead of confinement, many were living on the streets, in adult homes, or with their families who did not have the expertise to handle mental illness. On the other hand, the risk of unwarranted civil commitment was drastically reduced, saving many from unlawful loss of liberty.

At Risk of Danger
With the memory of previous abuses in public psychiatric hospitals fresh in their minds, lawmakers created stricter standards to involuntarily commit a person to inpatient treatment. According to the American Bar Association (ABA) Commission on Mental and Physical Disability Law, 44 jurisdictions, including the District of Columbia, require a person to have a “serious or severe mental condition.” Each state has adopted its own criteria that must be met before a person can be civilly committed, which may include requirements to use the least restrictive available treatment, a long history of violence, incompetency to make treatment decisions, and—among the most contested criteria—a “danger to self and others.” The ABA Commission on Mental Health and Physical Disability Law (renamed to the Commision on Disability Rights in 2011) states that 36 jurisdictions, including the District, include some form of “danger to self or others” element.

“The current law requires someone to become dangerous to themselves or others [before we treat them]. That’s ludicrous. The law should prevent violence, not require it,” says DJ Jaffe, founder of Mental Illness Policy Org., an organization whose stated mission is to provide “unbiased and easy-to-access information to the media and policymakers about care and treatment of people with serious and persistent mental illness.”

Some proponents of broadening the law believe that it would allow people to get needed treatments earlier, helping to prevent harm or potential crimes. “Most of the mental health establishment will tell you that people with mental illness are no more violent than others. That is true if you consider that 46 percent of the population has a diagnosable mental illness,” Jaffe says. “But it’s not true when you talk about the 6 to 8 percent who have severe mental illness and a past history of violence. It’s not true that they’re less likely to be violent in the future.”

Jaffe points to the study “Civil Commitment Law, Mental Health Services, and U.S. Homicide Rates,” conducted by researcher Steven P. Segal from the University of California, Berkeley. Segal looked at the correlation between less restrictive criteria for involuntary civil commitment and the rate of homicide, taking into consideration the different standards at various mental health systems, including greater access to inpatient beds and better performing hospitals.

“The associations documented herein between the homicide rate and the [involuntary civil commitment] criterion would appear to indicate that the broader criteria when used in the determination of who and when a patient is placed on [involuntary civil commitment] are more effective in curtailing homicide risk than the more narrow, dangerousness focused criteria,” Segal wrote. The results were published in Social Psychiatry and Psychiatric Epidemiology in November 2011.

Michael Biasotti, who has a close family member diagnosed with schizophrenia, agrees with the study results. In addition to his loved one, he deals with the mentally ill at his job where he is chief of police for the New Windsor Police Department in New York. The subject is so important to him that he focused the research for his thesis (finished in 2011) for the Naval Postgraduate School on the management of the severely mentally ill and its effects on homeland security.

“The most heinous crimes you’re going to see have to do with the severely mentally ill,” Biasotti says. He points to the November shooting at the White House by Oscar Ramiro Ortega–Hernandez, a person who believed he was a “modern-day Jesus Christ” and needed to kill President Barack Obama. “That goes back in history, unbelievable amounts of time. The mentally ill population has had more attacks on our political leaders than any al Qaeda group has.”

By mentally ill, Biasotti is referring specifically to those with severe disorders like schizophrenia and bipolar disorder, who go untreated. According to the National Institute for Mental Health, 6 percent of the population suffers from a serious mental illness. They are the very small portion of the mentally ill population Biasotti deems dangerous. “They have no fear,” he says. “A bank robber on many occasions, when he’s surrounded, will throw the gun down and put his hands up. A psychotic or schizophrenic individual who believes what he’s doing is true and correct, and God is demanding him to do this, is more likely to be shot by police or more likely to shoot a policeman.”

Biasotti’s family member is one of the unpredictable members of the mentally ill population. When untreated, she firmly believes the voices she hears in her mind. Biasotti recounts a conversation he had with her when she had a steady job, but decided she was feeling good enough to go off her medication. After a few days off her antipsychotic drugs, she was complaining about how a coworker was bothering her at work. ‘“She says nasty things to me,”’ Biasotti recalled her complaining. When he asked her if her supervisor has witnessed it, Biasotti’s loved one replied, “she doesn’t physically. She’s beaming it to me through her mind. I feel like going over there and punching her.”

With less restrictive commitment standards comes reduced criminalization of the mentally ill, Biasotti argues. “Society is not used to somebody standing on the street corner talking to God. They generate more police cars,” he says. There’s nothing the police can do, though, until they are immediately dangerous, so the individual continues to be a nuisance for law enforcement until he or she is arrested for something like disorderly conduct.

“It all creates a burden on the criminal justice system. They end up in prison for acts while unmedicated. They become the worst prisoners in prison. They’re the high-maintenance prisoners,” Biasotti says. “It’s not fair to the prisoner. It’s not fair to the system. I certainly remember the horror stories of the mental facilities and that shouldn’t be, but at some point, there needs to be protection for the community.”

While criminalization is a common problem in the mentally ill population, Ron Honberg, the national director for policy and legal affairs at the National Alliance on Mental Illness (NAMI), does not believe that broadening the civil commitment criteria would have an effect on crime. “I’ve never seen any evidence that stronger civil commitment laws prevent violence,” Honberg says. The 1998 McArthur Study, often cited by numerous mental health professionals, found that the mentally ill, who did not have substance abuse issues, were no more violent than the general population.

Take the case of the Arizona shooting. “I don’t think anyone can say with confidence that if, for example, the civil commitment criteria in Arizona had been different, or in any other place where there might be such a shooting might be different, it could have been prevented,” says Richard Bonnie, a professor at the University of Virginia School of Law and chair of the Commonwealth of Virginia Commission of Mental Health Law Reform.

Arizona, in fact, actually has one of the broadest criteria for involuntary commitment in the United States, allowing anyone to contact authorities to investigate a person if he or she is showing signs of eroding mental health. The petitioner is required to have two witnesses who also saw the erratic behavior. Unlike many states, Arizona law does not mandate signs of dangerousness to self or others before an individual can be civilly committed.

“Obviously, there is some relationship in terms of acute deterioration and violence when people basically lose rational control over their behavior,” says Bonnie, but he’s quick to note that the greater concern is harm to self by those diagnosed with a psychiatric behavior, and Honberg agrees.

On the Ledge
The discussion, both Honberg and Bonnie say, should be looked at in the context of preventing violence from the mentally ill against themselves. While Honberg disagrees that less restrictive civil commitment standards will reduce crime, he encourages the removal of proof of dangerousness. Such narrow interpretations of the “danger to self or others” clause would allow for needless deterioration before intervention, NAMI states in its Policy on Involuntary Commitment and Court–Ordered Treatment.

“A fair question can be raised [about] whether waiting until somebody is imminently, provably dangerous—is that really the proper standard or is that too narrow a standard? Is that the best for the individual themselves? Is that the best for society?” Honberg asks. “The standard ought to allow for an intervention, that you ought to at least be able to take history into consideration and that you should be able to look at that person’s need for treatment.”

Only four states require an imminent danger to self criterion. Until 2008, Virginia was among them, but it modified the language as part of the state’s overall initiative to reform its mental health system to help those in need access more easily treatment and other mental health services.

“We did have as our criterion then that a person had to pose an imminent danger to self or others. That is susceptible to an unduly narrow interpretation of ‘This is going to happen in the next 24 hours or five minutes,’” says Bonnie, chair of Virginia’s Commission of Mental Health Law Reform. “I wouldn’t want to emphasize that if you just change the commitment criteria that you’re going to have much of a dent in the overall problem because the issue is getting people into services voluntarily before they get to a point where civil commitment is a possibility.”

Assisted vs. Involuntary
A controversial alternative to involuntary inpatient commitment is assisted outpatient treatment, which allows for those with psychiatric disorders to live in the community, but requires them to follow court–ordered treatment. Forty–four states and the District have some form of assisted outpatient treatment. The two most well-known programs are in some counties of New York, referred to as Kendra’s Law, and California, called Laura’s Law, which was modeled after Kendra’s Law.

Kendra’s Law was passed in November 1999 after 29–year–old Andrew Goldstein, a diagnosed schizophrenic who was off his drugs, pushed Kendra Webdale off a New York City subway platform in front of an oncoming train and to her death. The law states that a court can order outpatient treatment for a person who exhibits a history of harmful behavior and noncompliance with treatment.

Advocates say the law reduces the number of hospitalizations, the length of hospitalization, court costs, incarceration parole costs, violence, homelessness, and suicide. “There’s not a barometer you can think of that Kendra’s Law doesn’t positively impact financially,” notes Jaffe of the Mental Illness Policy Org.

He is backed by a 2005 study released by the New York State Office of Mental Health, which found that of those in the program, 74 percent fewer experienced homelessness; 77 percent fewer experienced psychiatric hospitalization; 83 percent fewer experienced arrest; and 87 percent fewer experienced incarceration.  In addition, 81 percent of those who received assisted outpatient treatment said that it helped them get better and stay healthy.

A research team led by Bruce G. Link of Columbia University also released a study in May 2011, published by Psychiatric Services, that showed similar positive outcomes. The group followed 183 patients receiving treatment at outpatient clinics in New York City. Half were under Kendra’s Law and the other half were not.  They found that those under Kendra’s Law were 8.6 times less likely to be arrested for a violent offense.

Critics of assisted outpatient treatment programs are not convinced. Among them is David Oaks, executive director of MindFreedom, an organization that works to eliminate human rights violations in the mental health system. More than 60 percent of the group’s members call themselves psychiatric survivors, including Oaks himself. Oaks was diagnosed schizophrenic at 19 while attending Harvard University.

In the case of Kendra Webdale, Oaks emphasizes that Goldstein had been seeking help, but he was unable to receive it. “It’s not a case where a court order was the difference. It was adequate help and resources,” he says. “[Kendra’s Law is] really an involuntary outpatient commitment. Our opponents will use the phrase ‘assisted treatment.’ Right, like having money removed from my wallet by a mugger is assisted banking.”

In an opinion piece in Mental Health Weekly in April 2005, Harvey Rosenthal, executive director of the New York Association of Psychiatric Rehabilitation Services, stated his opposition to Kendra’s Law and programs similar to it, while also discounting the Office of Mental Health study. 

“The [Office of Mental Health] research is based almost entirely on the opinions of case managers and, unlike the Bellevue Study, fails to provide a comparison with a control group of those who received a voluntary package of similarly improved, well–coordinated services, including housing and case management,” he wrote.

The Bellevue Study stated that those who received a “better–coordinated package of services,” regardless of whether it was court–ordered or not, had the same outcome as those coerced into treatment. The Office of Mental Health study, Rosenthal argued, didn’t factor in the fact that Kendra’s Law simply made access to treatment easier.

In addition to questioning its efficacy, opponents such as Oaks state that assisted outpatient treatment is a violation of a person’s civil liberties and due process promised in O’Connor v. Donaldson. As stated earlier, the U.S. Supreme Court ruled that it was unconstitutional to confine a person with a mental illness, who did not pose a danger to him– or herself or others, against his or her will. “Since then, the standards have [been] very much corrupted so that there are many states now that essentially have laws that if you have a likelihood to deteriorate in the future because you are not getting the psychiatric care that the system wants, that is considered danger to self and others,” Oaks says. “In other words, saying no to the current system is being seen as being dangerous.”

Jaffe argues that by supporting involuntary outpatient commitment does not mean a person is anti–rights of the mentally ill. “I want to protect the rights of people with mental illness, including their rights to get treatment. I don’t think this is the alternative to protecting their rights. It’s a way to protect their rights to prevent them from inpatient commitment or incarceration,” he says. “Being psychotic is not an exercise of civil liberties. It’s the inability to engage in a meaningful exercise of free will.”

Oaks points out, however, that millions of Americans are diagnosed with bipolar disorder or schizophrenia. According to the National Institute of Mental Health, that’s 8.1 million Americans. Are they all subjected to coerced outpatient commitment?

No, answers Biasotti. The hurdles to jump to qualify under Kendra’s Law and Laura’s Law are considered very high. According to the Office of Mental Health in New York, to fall under Kendra’s Law, a patient must be 18 years or older; have a mental illness; is clinically determined to unlikely survive safely in the community without supervision; have a history of lack of compliance with treatment for mental illness that has led to at least two hospitalizations over the past 36 months or at least one act of serious violent behavior, including threats, over the last 48 months; is unlikely to voluntarily receive the recommended treatment; is in need of treatment to prevent deterioration of their mental illness that could lead to harm; and will likely benefit from treatment.

Even with the strict criteria, Oaks believes involuntary outpatient commitment laws are punishment for those diagnosed psychotic for simply being mentally ill. They have yet to commit a crime when they are ordered into treatment. “The idea of involuntary outpatient commitment, they’ll argue, is because there’s people like Loughner, therefore people should be on forced outpatient drugging in general. It’s kind of a dragnet, like mental profiling where you say, ‘That group there with that “x” label—you’ve got to keep them on psych drugs.’”

Would people be able to lock up members of a community who have drug and alcohol issues and are former prisoners, but have not committed another crime, Oaks asks. “Preventative detention, that’s what’s going on with us. Just because we’re diagnosed psychotic and schizophrenic, we’re told that we’re rounded up,” says Oaks.

“I think [the opposition] likes to portray that people are going to be rounded up and forced into mental institutions, but that’s not what this is about,” counters Biasotti. For him, it’s about ensuring that people like his loved one receive the treatment they need to be productive members of society. When his family member stays on her medications, she is able to hold down a job, have friends, and act as part of the family. All that disappears soon after treatment ends.

Forced Medication
To say that Biasotti is an advocate for forced treatment in people with severe cases of psychiatric disorders is an understatement. He brings up his family member again, calling it a “fast downhill slope” after she stops taking her drugs. It’s only a matter of days, he says. “If she takes her medicine, she leads a normal, productive life. When she does not, she’s on the street corner crouched over, talking to God.”

He questions why anyone would wait to make a person take antipsychotic drugs until they exhibit dangerous behavior, comparing it to appendicitis. If a person keels over in pain and realizes their appendix has burst, they know to go to the hospital to get it removed or face serious health complications or death. “When the brain is the organ where the issue is, and it doesn’t have the ability to make the decision that it needs help, well, I think it’s incumbent upon society or family to step in,” Biasotti says.

Both he and Jaffe believe that forced medication is a necessary preventative tool to ensure the safety of both the mentally ill person and the public. “The real crime is letting people go untreated, and they become psychotic and then are incarcerated for a crime that could have been prevented. That’s a much more serious crime,” Jaffe argues.

As for the argument that coerced treatment is a violation of people’s civil liberties? “We can champion their civil rights right into the grave,” Biasotti says. He notes that each time his loved one stabilizes, she is thankful for the treatment and vows to stay on her medication. Unfortunately, when she feels like she’s doing okay, she tends to stop taking the drugs and the cycle starts anew.

Adds Jaffe, “Even someone psychotic and saying, ‘I am Jesus Christ. I am going to kill the world,’ that person, in these people’s minds, has a right to refuse treatment.” That person, for Jaffe, is often someone afflicted with a condition coined as anosognosia, where individuals are unaware that they have a neurological defect. It was named by neurologist Joseph Babinski in 1914 and is frequently cited in cases of those with brain injury or stroke. People with Alzheimer’s can be diagnosed with anosognosia as well. 

In the article “Impaired Awareness of Illness: Anosognosia,” Dr. E. Fuller Torrey, a research psychiatrist specializing in schizophrenia and bipolar disorder and founder of the Treatment Advocacy Center, stated that approximately 50 percent of individuals with schizophrenia and 40 percent of individuals with bipolar disorder have anosognosia.

The study “The Prevalence and Correlates of Untreated Serious Mental Illness,” published in 2001 by the Health Services Research, seems to support Torrey’s claims that anosognosia is affecting people’s judgment in taking their medication. Researchers interviewed 9,282 people diagnosed with a severe psychiatric disorder and found that 55 percent cited the fact that they didn’t believe they were sick as one of the reasons for refusing treatment.

Oaks, however, not only sees forced drugging as a violation of civil liberties but also states that it’s inaccurate science. “What the public tends not to know is that there is never any proof of a chemical imbalance theory. It’s one of many theories, and there’s no test for any known chemical balance,” he says. “There’s no blood test. There’s no brain scan. There’s never been any scientific evidence. You can’t even measure a live brain’s chemical balances. It’s all been theoretical.”

And the drugs brought in to fix the alleged chemical imbalance are dangerous, potentially causing agitation and shrinkage to the frontal lobe of the brain after prolonged use of certain neuroleptic drugs. In February 2011, the Archives of General Psychiatry published a study out of the University of Iowa Carver College of Medicine, “Long–Term Antipsychotic Treatment and Brain Volumes,” which found that antipsychotics may play a factor in reducing the volume of brain tissue.

A 2005 study from the University of Pittsburgh published similar results seen in a group of monkeys subjected to neuroleptics. “The Influence of Chronic Exposure to Antipsychotic Medications on Brain Size Before and After Tissue Fixation: A Comparison of Haloperidol and Olanzapine in Macaque Monkeys” was published by Neuropsychopharmacology.

“You’ve bought into it that these chemicals are somehow magical fairy dust to fix this mythical chemical imbalance and keep people all peaceful and happy,” Oaks says. That doesn’t mean a person shouldn’t choose to follow a treatment plan, Oaks says. He emphasizes that MindFreedom is not against the use of antipsychotic medication, or neuroleptics, as they are often referred to. The group is pro–choice, believing the person diagnosed with the psychiatric disorder should be at their own liberty to make decisions about how to handle their mental illness.

But the question remains, if a person chooses to go untreated, is the risk of harm both to self and others greater? “Whether one thinks that the person ought to be treated over their objection or not, the law says that they can,” Bonnie says. “The most important thing that you can do to reduce the risk of violence among people with mental illness is to reduce the level of untreated mental illness, particularly the number of people who are experiencing mental health crises—acute deteriorations of condition.”

Mentally Fit for Trial
Despite efforts by mental health advocates, some people’s conditions will deteriorate, and a portion of those will commit a crime. According to NAMI, 16 percent of inmates have a serious mental illness. Others are awaiting trial. How do we treat those who are deemed not mentally fit to stand trial? According to Bonnie, in the case of less serious offenses, many people found incompetent to stand trial are referred to treatment. The treatment that restores them to competence to stand trial also stabilizes their condition, and eventually, the outcome of the case is the charges are dropped or a diversion occurs out of the criminal justice system. For many of those convicted, the sentence is often continued care through mental health services instead of imprisonment.

For more serious felony offenses, however, the issue of restoring competency through forced drugging is trickier. On one hand, there is the right of the person to refuse treatment, as established in Rennie v. Klein. However, the Supreme Court in Riggins v. Nevada has stated that you can treat someone over their objections to restore them to competency to stand trial.

“But there has to be a judicial determination as to whether state interest is strong enough in bringing them to trial to override their right to refuse treatment,” Bonnie says. While the Loughner case is still in the early phase, judges ruled in August that he could be forcibly medicated in an attempt to get him mentally fit for trial. “It’s hard to imagine a case where the public interest is stronger in terms of restoring someone to trial and bringing them to the criminal justice system than would be true in this case,” he adds. 

Is there a concern, however, that the prosecution in these rare but very serious cases is more concerned with punishment than rehabilitation of the mentally ill? Honberg thinks that’s a possibility. “[NAMI] believes that treatment should be for therapeutic purposes. In the criminal context, the real purpose, the reason why the state of Arizona or the federal government want to treat Jared Loughner, has nothing to do with his therapeutic well–being. It has all to do with wanting to bring him to trial and prosecute and punish him.”

Would it be in the best interest of the defendant to remain incompetent for trial to stay out of the criminal justice system? Bonnie doesn’t think so. “It is not in the defendant’s interest to be regarded as chronically ill and be civilly committed for an indeterminate period for restoration of competence. It is just generally not going to be the case where the defense basically wants a chronically incompetent person so they cannot come to trial,” he says. And for those found guilty, he argues that the likelihood is high that they would be diverted into the mental health system for treatment.

Honberg, however, wrestles with the question whether restoring competency is fair to the mentally ill person who has committed a crime. “If they see somebody before them who seems like he’s fairly stable, understands the process, participates meaningfully in his own defense, how likely is it that they’re going to be able to project that, at the time of the crime, he was a very different person?” he asks.

For Oaks and his organization, it’s not a question but a reality. “This idea to establish competency is so bizarre because I have been on a neuroleptic. It doesn’t make you more lucid. We know people who were heavily drugged, but never had a chance at a fair hearing because they were so cloudy, so out of it, so zombified by the psych drugging that they actually were deprived to the right to a fair hearing.”

Treatment for All
While there are clear sides to the fight over how to treat the mentally ill without their full cooperation, all agree that getting an individual to voluntarily agree to treatment and improving a person’s access to mental health services are the best approaches to ensure success.

“Unfortunately, the gateway into services too often now is arrest,” Bonnie says. “We need to do it better.” He urges greater follow–up after a person is discharged from the hospital, increased access to services for both the individual and their families, and removing barriers such as stigma to make the person more comfortable with going to receive treatment on their own.

Oaks urges greater advocacy on behalf of those diagnosed with a psychiatric disorder. He’d like to see more trained judges and public defenders who better understand the issues of the mentally ill. He wants to see attorneys “fighting hard” for their clients’ wishes. “We’re not questioning the ideals of the country, of what we’re founded on. The idea that we all should be agreeing and following laws that we’ve created with our duly elected representatives should apply to everyone equally. That if we’re accused of violating it, we’re innocent until proven guilty and we can go in front of a court of law and have our day in court where we’re fairly represented,” he says. “That’s beautiful. It ain’t happening.”

For Honberg, he points out the need for funding in a time of scarce resources. State mental health budgets have faced drastic cuts—about $2 billion this past year, not including Medicaid. Community programs have closed. Hospital beds have been eliminated. With limited places to treat a person, even the best laws will be of no use.

“The court order is just the legal mechanism. Whether a person is going to get the treatment they need is the big question,” Honberg says. “If they don’t, then the court order isn’t worth the piece of paper it’s written on.”