Introduction

Before I discuss some of the ways the idea of mental illness is used to deprive persons of liberty and justice, I want to be clear with readers about the meaning of certain terms, and in some cases, my opinion of certain psychiatric-legal practices. In order to communicate effectively, we must agree on the meaning of these terms.

“Mental illness” generally refers to how certain people behave. It can also be used to explain why people behave the way they do. It is a fact that there is no literal disease identified by pathologists as mental illness, be it a thought disorder, personality disorder, affective or mood disorder, and/or anxiety-based disorder. In the world of psychiatry and clinical psychology, there are multiple disorders included under each of those rubrics. Mental “disorder” is synonymous with mental “illness.” These are terms used by members of the mental health profession to do and not do certain things to certain people.

Insanity is a legal term. It generally refers to a person’s alleged state of mind when he committed a criminal act. There are various ways in which courts have defined insanity. These include whether or not a person knew what he was doing at the time of the criminal act, and whether or not a person knew what he was doing was right or wrong. A person may know what he was doing and know that what he was doing was wrong, but claim, or psychiatrists may claim, that he could not resist the impulse to commit a crime. This is referred to as “irresistible impulse.” Under the “Durham rule,” jurors were told to figure out whether a defendant’s criminal act was the product of a mental illness. The jurors were not told what “product” meant, and they were not told what “mental illness” meant. Others believe that mental illness means irrationality. This raises the question, irrational according to whom? Many people, psychiatrists and legal experts alike, use the terms mental illness and insanity interchangeably. Yet mental illness is a pseudo-medical term. I do not believe a psychiatrist can determine via a psychiatric examination or any other way what a defendant’s state of mind was six months in the past when he committed a criminal act. I don’t think one person can know another’s state of mind in the present moment.

The mental health profession includes psychiatrists, psychologists, social workers, and various categories of professional counselors. Since psychiatrists are the major players empowered by the state to commit persons to mental hospitals, make declarations regarding competence to stand trial, prescribe drugs, and give psychiatric examinations in court at the request of a judge, prosecutor and/or defense counsel in order to support an insanity plea, I’m using the word “psychiatrist” to stand for all members of the mental health profession. Many members of the mental health profession play key roles reinforcing belief in mental illness as a treatable literal disease.

I differentiate here between contractual or consensual psychiatry and institutional or coercive psychiatry. There are, in my opinion, as many different schools of personality theory as there are religions, and as my colleague and friend Thomas Szasz points out in his book entitled The Myth of Psychotherapy: Mental Healing as Religion, Rhetoric and Repression (1978), treatment approaches to mental illness have more to do with religion and ethics than medicine and science. Moreover, the fact that drugs change behavior from socially unacceptable to socially acceptable does not mean a person needed that drug in a biological or chemical sense. Many people feel better after a glass of wine in the evening. This does not mean they suffer from wine deficiency.

I am not an anti-psychiatrist. I do not object to people who want to believe or go to a psychiatrist who believes in mental illness. I do not think the state should prohibit people from ingesting strong drugs to change the way they feel, either by prescription or by using those drugs that are currently illegal. I believe in the repeal of all drug prohibition, including prescription drugs. In my opinion, drugs are intrinsically neither safe nor dangerous, neither good nor bad. This all depends on how one uses a drug. My concern here is with institutional or coercive psychiatry. In contractual or consensual psychiatry, the psychiatrist is an agent of the patient. The patient can fire the psychiatrist any time he wants to do so. In institutional or coercive psychiatry, the psychiatrist pretends to be an agent of the patient, but is really an agent of a state institution. The patient cannot fire his psychiatrist.

While from my perspective I would oppose the violation of even one person’s rights through psychiatric coercion – while I would oppose even one person being involuntarily committed to a prison called a mental hospital – in reality thousands of people are held in mental institutions across the United States at any given time. Some were forced into a psychiatric facility and cannot get out. Others chose to enter a facility voluntarily and can’t get out. A large part of treating mental illness involves forced medication and forced electroshock therapy (ECT).

There are many situations where the idea of mental illness is used to coerce people. I cannot cover all of them here, thus I’m narrowing my focus to three psychiatric strategies used to coerce people. There are more terms, definitions and descriptions we must be clear about before I describe these strategies.

Disease versus Behavior

A disease refers to a histological (tissue) lesion, wound, or cellular abnormality. Mental illness is not included in standard textbooks on pathology because it refers to behavior, not cellular pathology. This distinction between behavior and disease is important because people tend to confuse the one with the other. Behaviors can be influenced by disease, and vice versa, however behaviors are not diseases, and vice versa. Smoking is a behavior. Lung cancer is a disease. Drinking alcohol is a behavior. Cirrhosis of the liver is a disease.

Diseases are found in a cadaver upon autopsy. Behaviors cannot be found in a cadaver during autopsy for obvious reasons. Disease is something that a person has. Behavior is something that a person does.

When I say there is no such thing as mental illness, I mean the following: The mind, consciousness, and thinking is not susceptible to disease. “It” cannot get sick or diseased. That represented by the pronoun “I” cannot get sick or diseased. The mind cannot be diseased because it is not a biological entity. Strictly speaking, there is no such thing as the mind. Since there is no such thing as the mind, it cannot be ill or diseased. Put another way, the mind can be sick or diseased in a metaphorical sense only. Since the mind cannot be sick or diseased, it also cannot be healthy.

The brain can be diseased, just as any part of the body can be diseased. The human body is susceptible to literal disease; the human mind is not. I can tell you a sick joke and you know what I mean by “sick joke.” I cannot give antibiotics or any other literal medicine to a sick joke. I can’t treat a sick joke. Since the mind cannot be diseased, or, since the mind can be diseased in a metaphorical sense only, like a sick joke, it cannot be treated, or given medicine, to make it healthy, except in a metaphorical way.

None of this is to state or imply that people labeled or “diagnosed” as mentally ill are not engaged in certain behaviors that others may find disturbing. A person plucks out his own eyes; another amputates his penis; another injects saliva under her skin to deliberately create infection. Mental health professionals and laypersons alike “diagnose” or label the persons engaging in such disturbing behaviors as mentally ill. The behaviors clearly exist. They are sick only in the sense that a joke is sick, that is, they are sick in a metaphorical sense, but not in a literal sense.

Description versus Explanation

In my opinion, we must not confuse the accurate description of a phenomenon with an explanation for why the phenomenon exists. Schizophrenia, for example, is a term used to explain why people engage in certain behaviors that others find disturbing. It is also a term, as are the so-called mental disorders listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM), used to deprive people of liberty when they have committed no crime and to absolve people of responsibility when they have committed a crime. While there is no such thing as mental illness, and while there can be no such thing as mental illness, people act as though mental illness is as real as cancer in order to do certain things to other people. Many people say, “just because we have not discovered the cause of mental illness does not mean we won’t discover a cause.” I disagree. We will never discover a cause for mental illness because there is no illness, no disease called mental illness. There is no “it.” “It” does not exist. “It” is not a discrete variable. The term and diagnosis of mental illness – and obviously there can be no accurate diagnosis of mental illness since there is no disease to diagnose – is a rhetorical device, a political and behavioral strategy that certain people, as we shall see, benefit from.

While this perspective on mental illness is considered controversial and a minority opinion, it is in many ways simply the application of scientific rules for disease identification and classification. Pathologists do not include mental illness in standard textbooks on pathology. Behavior is not a tissue. Behavior is not a disease. There is nothing particularly controversial about pathology and nosology, the classification of diseases. Saying that schizophrenia is not a disease is no more controversial than saying that cancer is a disease.

So, what is behavior? Behavior means mode of conduct, deportment. It refers to how a person acts. Behavior is an activity. Behavior is the expression of moral agency, the expression of values. We know something about what a person values by what she does. There is no such thing as an involuntary behavior. Even in a gun-to-the-head scenario, a person chooses to act one way versus another. An epileptic seizure is not an involuntary behavior. It is more like a neurological reflex. It is not voluntary; it is not the expression of choice or volition. Knee-jerk is a patellar reflex and is not volitional.

Now, why a person engages in certain behaviors is an entirely different matter. When someone states “schizophrenia is a chemical imbalance,” I assert that they are being inaccurate. “Chemical imbalance” is an explanation for why a person engages in self-reported imaginings, what is referred to as hallucination, the primary characteristic of schizophrenia. (There is no such thing, no such disease, as schizophrenia.) There are socially acceptable self-reported imaginings, or hallucinations, and socially unacceptable ones. Claiming that Jesus has entered one’s heart may be a socially acceptable self-reported imagining. Claiming that Martians are beaming messages to me through the fillings in my teeth may be a socially unacceptable self-reported imagining. The former is referred to as a valued religious experience. The latter is referred to as schizophrenia, a type of mental illness.

An explanation of a behavior may or may not be accurate, but an explanation of the behavior called or labeled as “schizophrenia” should not be confused with that same behavior’s description. People tend to confuse the two, just as people confuse behavior and disease, mind and brain, and so on.

Categories of Explanations for Behavior

Explanations for behavior fall into four categories: Theological or spiritual explanations are one; biological explanations are a second and are focused primarily on the structure and function of the nervous system, specifically, how neurons communicate with one another; psychological explanations, including all the different theories about personality, are a third category; and finally we have socio-cultural explanations, a fourth category, where the meaning of a behavior is contingent upon the cultural context within which the behavior occurs.

Socially acceptable and socially unacceptable behaviors vary by cultural context. Literal diseases do not. In the United States, homosexuality is no longer considered a disease. In Uganda, homosexuality is considered a disease, a sin, and a crime. Controversial legislation punishing homosexuality with the death penalty has been proposed in Uganda. Obviously, it is a very backward country, composed of very backward people, when it comes to protecting individual rights. Much of their antipathy towards persons who choose homosexual ways of having sex comes from religious influences.

Using logic and empirical methods, people may gather evidence and try to find out which of the four categories of explanation for behavior is most accurate when it comes to describing, explaining, predicting, and controlling behavior. Yet much of what passes as “science” regarding psychiatric and behavioral research does not utilize Sir Karl Popper’s crucially important method of falsifying a hypothesis. Gathering “evidence” to support a hypothesis is the way most behavioral research is conducted. The fact that no two people are identical is generally disregarded when it comes to interpreting behavioral research. While the allele (mutation) of a specific gene responsible for “building” a specific neurotransmitter receptor may be a discrete variable, the behavior that is tested for correlation, ultimately for a causal relationship, is not a discrete variable. No two behaviors are identical.

What we do or don’t do about abnormal behaviors referred to as mental illnesses, or mental disorders, is different from describing and explaining behavior. I refer to this as policy in four domains. How we describe and explain behavior has important implications for legal, clinical, social (sociologically, meaning informal social controls, including relational and self controls, without involvement on the part of the state), and public policy (sociologically, meaning formal social controls where the state is involved).

Keeping in mind what I’ve written above regarding the meaning of and differences among certain terms as a context or background, I would now like to focus on how the idea of mental illness is used by institutional psychiatry. When it comes to legal procedures, including criminal and civil procedures, all four policy domains are involved in what people do and don’t do in the name of mental illness. None of the four policy domains are mutually exclusive.

The Right to Refuse Psychiatric Treatment for Mental Illness

Most people recognize that literal treatment for literal disease is a choice, subject to consent. People have the right to refuse treatment when they have lung cancer, or are otherwise very sick, despite the fact that doing so may mean certain death. When you elect to undergo major surgery, you must sign a consent form. Even when you request a vaccination for influenza, you still must sign a consent form.

There are three relatively uncontroversial situations in which treatment proceeds legally without consent: The first is the medical treatment of children. The second is the treatment of people when they are literally unconscious. And the third is the treatment of persons with contagious disease.

Children may be treated, or poked with a hypodermic syringe to vaccinate, or to collect blood without their consent, mainly because the children are in a custodial or guardian relationship with their parent(s), and their freedom, like their responsibility, is limited. We accept that when a person is a child he or she may not fully comprehend the consequences of refusing treatment. Obviously, the distinction between adult and child is somewhat arbitrary. There are many people who are over twenty-one years of age who still act in immature ways. There are many people who are under twenty-one years of age who act in mature ways. It seems odd that courts will allow fourteen-year-old children to be tried as adults for particularly heinous criminal acts. However, fourteen-year-old children are not granted the freedoms and privileges of adulthood for demonstrating virtuous behaviors and for demonstrating a clear comprehension of the relationship between specific behaviors and their consequences. Most people recognize and accept that children can and should be coerced into receiving medical treatment when their parent(s) deem it necessary to do so. (Obviously, it is preferable to gently explain why the prick of a needle is necessary, however, children vary by age in terms of their understanding and willingness to submit to pain, regardless of why and who says doing so is necessary.)

The second situation when medical treatment occurs without consent is when a person is literally unconscious. Consider a pedestrian crossing a street at a marked crosswalk during rush-hour traffic. Our imaginary pedestrian is hit by a car, and as he falls to the street he hits his head on the pavement and is knocked unconscious. Someone calls an ambulance, the ambulance arrives, and emergency medical technicians immediately begin to assess the person’s condition, treat him as necessary at the scene of the accident, then in the ambulance on the way to the hospital, and then by doctors and medical staff at the hospital. No one waits for our pedestrian-now-patient to regain consciousness so that doctors and other medical personnel can ask him if he wants to be treated, that is, if he consents to treatment. He might die if they wait. Our pedestrian-now-patient doesn’t have the conscious capacity to say yes or no, give or refuse consent to treatment, so we err in the direction of helping the person. Again, most people accept this second form of treatment without consent, as necessary.

Our third and final situation involves a person who has contracted a contagious disease. Imagine an adult university student who becomes infected with a highly contagious form of viral meningitis. Once university and district medical personnel are alerted to the fact that this student is dangerously ill with a contagious form of meningitis, she is immediately quarantined and treated whether she gives consent or not. Why? Because others at the university can be infected or catch the disease simply by being in the same vicinity as our student sick with meningitis. Anyone in a classroom with her can catch the disease.

In order to protect others from her disease, she must be removed, quarantined and treated for her disease, whether she gives consent or refuses to give consent for medical treatment. Remember, she is being sequestered and treated to protect others, as well as herself.

When I use the word contagious here I am referring to a disease that others can contract simply by breathing the same air, dipping into the same food and drinking out of the same cup of water our sick student is using. That kind of contagious disease is a true public health matter. Syphilis and herpes are private health matters, the result of taking a behavioral risk with others. Getting AIDS from contaminated blood is a public health matter. Getting AIDS by practicing unsafe sex is a private health problem. I’m referring to the public health form of contagious disease. Most people accept these three situations or conditions as legal and ethically sound.

Psychiatrists, on the other hand, twist these rather uncontroversial cases in extremely self-serving ways. They do this despite the fact that they tell us over and over again that mental diseases are just like physical diseases, and that mental patients should be treated exactly as people with real, physical diseases are treated. This is the essence of the mental health “parity” controversy. To wit:

On October 3rd, 2008, the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 was signed into law. This new Federal law requires group health insurance plans (those with more than 50 insured employees) that offer coverage for mental illness and substance use disorders to provide those benefits in no more restrictive way than all other medical and surgical procedures covered by the plan. The Mental Health Parity and Addiction Equity Act does not require group health plans to cover mental health (MH) and substance use disorder (SUD) benefits but, when plans do cover these benefits, MH and SUD benefits must be covered at levels that are no lower and with treatment limitations that are no more restrictive than would be the case for the other medical and surgical benefits offered by the plan.

Mentally ill patients and drug addicts are not the ones who lobbied for this legislation. It was the “advocates,” that is, the families of those diagnosed with mental illness and addiction who lobbied for the parity legislation, as well as treatment providers, who lobbied the hardest. Treatment providers stand to gain the most by the passage of this legislation.

As usual, the advocates and treatment providers plead altruism, that is, no self-interest.[1]

Treatment providers forcibly “treat” people they and others consider “dangerous to self and others,” justifying what they do in the name of compassion and care. They take each of the three conditions I’ve just described – youth, unconsciousness, and danger to others – and blur the distinction between metaphor and literal disease and treatment.

Treatment without consent for “mental illness” is justified by saying the person is like a child. Since we base the distinction between adult and child on chronological age, a person is either an adult or a child. If he’s twenty-one, he’s an adult. If he’s twenty, he’s a child. Psychiatrists and mental health professionals empowered by the state to commit someone involuntarily to a psychiatric “hospital” argue that a twenty-five year old person who refuses to bathe and take care of himself is really a child. He does not, in their opinion, exercise responsibility for himself because he cannot do so. He is a threat to himself. He may verbally or nonverbally abdicate all responsibility for himself and ask to be taken care of by others, for fear that he might hurt himself. (Again, I am most concerned with those who do not want help, who reject “help,” and who are coerced into “treatment” when they don’t want it.

It doesn’t matter to me whether they express a “thank you clause” after they are released from a hospital, or after they are thoroughly drugged with major tranquilizers. In my opinion, when an adult refuses treatment his refusal must be respected. Otherwise, coercion occurs in the name of helping him. The intentions of psychiatrists and this man’s friends and family are irrelevant. They may certainly try to persuade, encourage, even beg him to go into a “treatment” facility. In the end, the man called a child has a right to refuse treatment and that refusal must be respected in the sense that psychiatrists keep their hands off him.

Institutional psychiatrists are agents of the state. They are not agents of the designated patient. The state has no business inside a patient’s metaphorical head.

According to psychiatrists who coerce this person into a psychiatric facility, the coercion must occur in order to protect him from himself. He “needs” to be deprived of his liberty, otherwise, “he will die with his ‘rights’ on,” as one staunch defender of involuntary commitment procedures responded to those concerned about violating people’s constitutional rights in the name of treating their mental illness. The more a person objects to being coerced into “treatment,” the more likely he is to be diagnosed with serious mental illness. He is labeled a child with mental illness, yet he is not literally a child. He is a metaphorical child, and he does not have a literal illness. He “has” a metaphorical illness. He has committed no crime.

While mental health professionals may consider this to be the same as treating a literal child with a literal disease, the differences are clear; this is one way a person can be committed against his will to a psychiatric facility for “treatment.” Others consider this to be assault and battery committed by psychiatrists and the state, which has empowered them to do this to people. As Murray Rothbard once wrote at a symposium honoring Thomas Szasz, “diagnosis is a weapon.”

Here is another example of distorted thinking on the part of someone who believes strongly in the existence of mental illness. Years ago I had an exchange with someone who was very angry about my views on mental illness. He calls himself a “libertarian.” He said, “I know mental illness is real, it almost killed me.” I wrote back to him explaining that in my opinion, “he” was “it.” There is no “it” separate from himself that almost killed him. He, apparently, almost killed himself. He did not want to take responsibility for himself, I informed him.

In the unconsciousness approach, treatment without consent for “mental illness” is justified by saying the person “lacks insight” into his disease. “Depression is anger turned inward,” said Arnold Schwarzenegger in Terminator 3: Rise of the Machines. “Psych 101.” Which indeed it is. When a person diagnosed as mentally ill rejects the diagnosis, this rejection is “diagnosed” as a sign of his mental illness. (Signs and symptoms are different; signs are externally observable markers of disease, while symptoms are a part of the subjective experiences of the patient). Accurate diagnosis of disease requires identification of signs, not symptoms. While symptoms may lead to signs, symptoms alone are unreliable when making an accurate diagnosis of disease. All mental illnesses are based on symptoms alone, not signs. There are no signs of mental illness.) Hijacking the term “anosognosia,” psychiatrists assert that disagreeing with them is a manifestation of their mental illness, a kind of “heads I win, tails you lose” interaction. The doctor is always right, especially when he’s wrong.

Here is the definition of anosognosia from The Treatment Advocacy Center; its executive director, E. Fuller Torrey, was originally a student of Thomas Szasz. He wrote The Death of Psychiatry, published in 1975:

Impaired or lack awareness of illness – a neurological syndrome called anosognosia – is believed to be the single largest reason why individuals with schizophrenia and bipolar disorder do not take their medications. It is caused by damage to specific parts of the brain, especially the right hemisphere, and affects approximately 50 percent of individuals with schizophrenia and 40 percent of individuals with bipolar disorder. When taking medications, awareness of illness improves in some patients.

A person is either conscious or unconscious, especially when they angrily try to reject and resist attempts at coercion in the form of involuntary commitment to a mental hospital. The more a patient resists and fights, the deeper his anosognosia, or “lack of insight.” This is a pathetic attempt on the part of psychiatrists to justify coercion. Obviously a person is conscious when he resists treatment, and obviously he has a right to resist treatment. This is very different from being unconscious after falling and hitting one’s head on the pavement. Nevertheless, mental health professionals assert that disagreeing with them is just another form of unconsciousness, and therefore coercion is justified.

In the third condition, the metaphor of contagion, treatment without consent is justified on the assertion that the person is dangerous to others. A person with a literally contagious disease can unintentionally harm others. Likewise, a person with a metaphorically contagious disease can also allegedly and unintentionally harm others. He can commit acts of violence toward others and must be sequestered or put into a form of quarantine in order to protect the public from him, and he from himself. A literal situation with real contagion is twisted into a metaphorical situation in order to justify coercion in the name of compassion, care, and really, medicine.

So, we see here how the three legal and ethical situations or conditions in which a person can be treated medically without consent, are twisted to serve the best interests of mental health professionals. Again, mental health professionals include psychiatrists, psychologists, social workers, and various categories of professional counselors.

In each of these conditions the idea of mental illness plays a key role in forcing people into a mental hospital. People are deprived of liberty because others think they are a threat to others and themselves. Leaving aside the fact that a person’s body is his or her own property, and suicide is a right, not a crime, and the fact that the U.S. Supreme Court has upheld the constitutionality of involuntary treatment for mental illness, it seems to me that a profound injustice is occurring to persons labeled as mentally ill. This is social control masquerading as the literal and ethical practice of medicine. Literal treatment becomes metaphorical treatment, and metaphorical treatment for a metaphorical disease. Similia similibus curentur, as the homeopathic school often says – like cures like.

It is important to note that while social “scientists” have been striving for years to accurately predict who is likely to commit acts of violence and who is not likely to do so, we cannot predict who is going to be violent with an accuracy greater than that predicted by chance. In other words, guessing who is going to be violent is as accurate as taking into consideration hundreds if not thousands of personality and demographic characteristics comparing violent to nonviolent people. So while many people clamor for more involuntary commitment to mental hospitals, along with gun control, in order to prevent mass murders like the one just committed in Aurora, Colorado, we cannot predict who is going to do it and who is not. That is a fact, not fiction.

There is one final detail that we need to address. Even if we could predict who is going to commit a crime or act of violence and who is not with perfect accuracy, as shown in the movie Minority Report (2002), people are still being deprived of liberty when they have committed no crime. They are being deprived of their right to due process of law.

Legal Fiction

Involuntary treatment for mental illness and the insanity defense are two sides of the same coin. Both practices rest on the idea of mental illness. Both practices occur via the power of the state. In the involuntary treatment scenario, a person is treated as if he was a criminal and deprived of liberty when he has committed no crime. In the insanity defense, a person is treated as if he was not a criminal, and exculpated of criminal responsibility, even when he has committed a crime. If involuntary treatment is abolished as unconstitutional, then it would seem the insanity defense would be abolished as well, and vice versa. Since the idea of mental illness is the key to both, it seems as though it would be easy to get rid of both practices by showing a court that mental illness is a myth, as professor of psychiatry emeritus Thomas Szasz has written about for the past sixty years.

Mental illness will continue to play a role in depriving people of liberty and justice as long as it is considered an apposite legal fiction. As Szasz has pointed out in his book entitled Insanity: The Idea and Its Consequences (1987), the greatest racial legal fiction before the Civil War was that negro slaves were three-fifths persons. The greatest medical legal fiction since the Civil War is mental illness, the idea that persons labeled as mentally ill are not full persons, full citizens, entitled to their full constitutional rights. It is as if the Bill of Rights had a postscript at the bottom reading “For mentally healthy people only.”

A legal fiction is something that is false, asserted as true, and something that a court will not allow to be disproved. The late legal scholar Lon Fuller stated that in order to understand something as a legal fiction, one has to first identify the premise upon which the fiction rests, and then identify what purpose is being served by the fictional assertion. Szasz explained how mental illness is legal fiction in light of this point by Fuller in his book Insanity. The premise upon which mental illness as legal fiction rests is that the mind can be diseased just as the brain can be diseased. The purpose mental illness as legal fiction serves is to deprive of liberty persons labeled as mentally ill without letting them have due process of law. In other words, the purpose of the greatest medical legal fiction since the Civil War, mental illness, is to deprive people of their right to due process of law without violating their constitutional rights.

Involuntary commitment rests primarily on asserting that a person’s mental illness causes them to be a danger to themselves and others. Variations on the insanity defense, for example, from the M’Naghten rules or or the irresistible impulse doctrine, or Durham’s “product,” all attempt to claim that a person cannot form the necessary intent or mens rea to be responsible for a crime. There are some legitimate ways in which a person’s responsibility for criminal acts is diminished or absent.

One example is when a person harms another in a situation involving self-defense. An auto accident suffered due to a heart attack or an epileptic seizure may be another. Two persons may get into a physical altercation and while neither party intends to kill the other, one person may still be killed, even without any intent.

John Hinckley stalked and shot President Ronald Reagan. It appeared that he had the necessary intent or mens rea to be found guilty within the context of criminal law. However, he successfully pled not guilty by reason of insanity. There was no criminal responsibility. He was not punished as he might otherwise have been, and he was sent instead to St. Elizabeth’s Hospital in Washington, D.C. for treatment of his “insanity.”

Theodore John “Ted” Kaczynski, the “Unabomber,” was charged with a crime for which he wanted to stand trial. He objected to his defense counsel’s attempts to have him examined by a psychiatrist for “schizophrenia.” Kaczynski did not want his political motives for mailing letter bombs to be undermined by a diagnosis of schizophrenia. He clearly understood that both the defense and prosecutors were attempting to do this. Mass killer Anders Breivik has likewise resisted the Norwegian legal system’s classification of insanity, again with the goal of advancing his political beliefs. It is interesting to note that not once have people arrested for Islamic terrorist activities either requested or been coerced into pleading not guilty by reason of insanity.

Conclusion

In sum, two scenarios operate under the name of mental illness, and both lead to state-sponsored psychiatric coercion and injustice. The idea of mental illness is used to assign responsibility where it does not belong and to involuntarily commit people to mental hospitals. The idea of mental illness is also used to remove responsibility where it does belong, in the varieties of the insanity defense that I have briefly described. When liberty is deprived in the name of mental illness, responsibility for behavior is necessarily diminished. Thus involuntary treatment procedures are intimately connected to variations on the insanity defense.

A positive correlation exists between liberty and responsibility. When we increase one, we necessarily increase the other. When we decrease one, we necessarily decrease the other. The myth is that a negative correlation exists between the two. We cannot increase liberty by adopting policies that ultimately diminish personal responsibility.

My colleague and friend for many years, Thomas Szasz, agrees with me on many issues, and disagrees on many issues as well. In terms of abolishing the use of the idea of mental illness as the greatest medical-legal fiction since the Civil War, his belief, as expressed to me in personal communication, is that this can only be done by prohibiting a psychiatrist from being in a court room, testifying as an expert on behavior in a trial. I believe it can only be done by exposing mental illness as a metaphorical disease, and by showing judges and legislators that mental illness is the greatest medical-legal fiction since the Civil War, in the way that Lon Fuller has brilliantly described legal fiction.

I believe that one of the greatest threats to liberty and responsibility we have known since the Spanish Inquisition can be found in institutional psychiatry, the confusing public health with private health, and the growth of the therapeutic state, that union of medicine and state that has come to replace the theocratic state in so many of its former functions.

Note

[1] See Jeffrey A. Schaler and Richard E. Vatz, “Mental health Trojan horse,” Washington Times, December 31, 2009; see also “Mental Health Parity Legislation Should Be Reversed Or Modified Because Questions About Mental Illness, Addiction Remain, Opinion Piece Says,” Medical Digest.com.

Thomas Szasz performed a great service when, fifty years ago, he first began exposing the risks and excesses of what he calls “coercive psychiatry.” His friend Jeffrey Schaler now restates the Szaszian case that mental disorder is myth, not disease, and therefore should not be grounds for depriving anyone of free choice. This important topic touches not only on the rights of the individuals involved, but also on the integrity of basic constitutional protections that are both precious and fragile.

Let’s start with a summary of where I stand. I agree completely with Schaler and Szasz that mental disorders are not diseases and that treating them as such can sometimes have noxious legal consequences. But I strongly disagree that mental disorders are worthless “myths” and think it greatly over-simplifies a complex clinical and legal conundrum to categorically assert that involuntary treatment should be completely eliminated.

The “myth” issue is best understood by comparing the epistemologies of my old friends, the three umpires:

First umpire: there are balls and strikes, and I call them as they are.

Second umpire: there are balls and strikes, and I call them as I see them.

Third umpire: they ain’t nothing ‘til I call them.[1]

Schaler and Szasz correctly make mincemeat of the naïve realism of the first umpire. Human beings aren’t gifted with the tools to see reality straight on, and mental disorders most certainly are not diseases. But umpire three (a true Szaszian) also blows the call — just because mental disorders are not diseases does not make them “myths.” Umpire 2 has better vision — mental disorders are constructs, nothing more but also nothing less. Schizophrenia is certainly not a disease; but equally it is not a myth. As a construct, schizophrenia is useful for purposes of communication and helpful in prediction and decisionmaking — even if (as Schaler correctly points out) the term has only descriptive, and not explanatory, power.

Let’s take Schaler and Szasz off their ivory-tower, idealist perch, and thrust them instead into the muddy waters of the clinical situation that actually confronts a psychiatrist working in an emergency room. Suppose the person who meets the criteria for the construct “schizophrenia” also has compelling command verbal hallucinations that are ordering him to murder his daughter. Suppose further that he has no insight or reality testing and feels compelled to follow the commands. He is brandishing a gun and says he must use it. This isn’t myth — this is clinical reality, and it brings us face to face with the real perils, but occasional absolute necessity, of involuntary treatment.

In my view, “coercive psychiatry” can be either a horrible abuse or a lifesaving salvation — depending completely on the specific circumstances. The risks are familiar, of long standing, and are still being realized around the world, even in our own freedom-loving country. It was abusive psychiatry in medieval times when doctors of the church exorcised the demons they presumed were causing mental illness through the diagnostic and treatment techniques of torture and drowning. In Soviet times, coercive psychiatry was used to suppress political dissenters by calling them crazy and parking them for long stretches in mental hospitals. China reputedly is running its own “psychiatric gulags” to quiet the vociferous economic complaints of peasants cheated by greedy local party officials. And one has to question the well-meaning Australian practice of anesthetizing and intubating psychotic aboriginals so they can be flown to a distant place for hospital treatment.

In the United States, twenty states and the federal government have passed Sexually Violent Predator statutes that allow for the often lifelong preventive detention of rapists beginning after they have already served their full prison sentence. The fig leaf of Supreme Court approval for the constitutionality of this seeming double jeopardy violation of due process is provided by the requirement that the sexually violent predator have a mental disorder. But the judicial spirit of this necessary mandate to preserve constitutional protections is being violated in forensic practice by ignorant and/or unscrupulous psychologists willing to testify that the mere act of being a rapist qualifies the offender as mentally disordered and therefore subject to indefinite involuntary psychiatric commitment. Before heaping what would be completely appropriate condemnation on abusive Chinese practices, we should get our own house in order.

But Schaler and Szasz go way too far in their total rejection of any need ever for involuntary treatment. Szasz’ life-long ideological abhorrence to “coercive psychiatry” led him to avoid any training or practice experience in situations that might force him to violate (or reconsider) his principles. Dr. Szasz has never once faced a patient who desperately needed to be protected from hurting himself or someone else. I have evaluated such patients many hundreds of times. While it is never comfortable to coerce someone into treatment, it is sometimes the only safe and responsible thing to do, and occasionally it is life saving. Involuntary commitment should never be done casually, but it should also not be casually rejected on questionable theoretical grounds by idealists who don’t really understand clinical reality. “Coercive psychiatry,” however unpleasant, must be available as a necessary last resort when nothing else will do.

Patient reaction to involuntary treatment varies greatly depending on the person, the circumstances, when they are asked, how it is done, and the family’s attitude. A minority of patients is angry about the initial commitment and stays angry even after they have gotten better — sometimes feeling abused and humiliated for life. Another minority feels relief — unwilling to volunteer for treatment, they are happy enough to go along with it. The majority are unhappy at the moment when involuntary treatment is imposed on them, but they understand why it was necessary once they have recovered from their acute symptoms.

So what are the middle ground solutions? How do we thread the needle between an arbitrary abuse of psychiatric power and the avoidance of an unpleasant but necessary responsibility? Always work to gain the patient’s trust and cooperation so that the need for involuntary treatment will be reduced to a bare minimum. Always discharge the patient as soon as he is ready or convert him to voluntary status as soon as he is willing. Build in tight monitoring and quality control assurances that involuntary commitment is done only when absolutely necessary and is terminated just as soon as is feasible. And perhaps best of all — give patients who have a track record of needing involuntary treatment the opportunity to sign an advance directive when they are well — permitting it in the future should they again need it.

This is an imperfect world which sometimes requires choosing lesser evils. But it has been of inestimable value to have Schaler and Szasz holding our feet to the fire to ensure that in those rare situations when psychiatry must be coercive, the desirable end does indeed justify the unpleasant means.

Note

[1] For more discussion of the three umpires in the context of psychiatry, see this discussion in Association for the Advancement of Philosophy and Psychiatry Bulletin, vol 17 no 2, 2010, in which I also participated. (pdf)

Jeffrey Schaler notes that both Ted Kaczynski, a.k.a. the Unabomber, and Anders Breivik, who killed 77 people in Norway last year, resisted efforts to reclassify their politically motivated crimes as symptoms of schizophrenia. I suspect that Wade Michael Page, the gunman who was killed by police in the middle of an attack that left six people dead at a Sikh temple near Milwaukee on Sunday, likewise would have rejected such an explanation. Indeed, speculation about his motives so far has focused not on mental illness but on his white supremacist ideology. Page killed Sikhs, people tend to assume, because he was “fueled by hate,” as one headline put it, not because he was driven by psychotic delusions.

By contrast, consider the 1980 trial of Darlin June Cromer, which Thomas Szasz describes in Szasz Under Fire: The Psychiatric Abolitionist Faces His Critics, a 2005 collection of essays edited by Schaler. Cromer was a 34-year-old white woman charged with kidnapping and murdering Reginald Williams, a 5-year-old black boy. There was no question that Cromer, who attracted suspicion because she had a history of talking about “killing n‑‑‑‑‑s” and trying to lure black children into her car, had abducted Reginald from an Oakland, California, supermarket, strangled him, and buried his body near her home. She had told police as much when they questioned her. Neither was her motive in doubt. She explained that “it is the duty of every white woman to kill a n‑‑‑‑‑ child,” telling a jail psychologist she hoped to ignite a race war. But as the San Francisco Chronicle reported, Cromer’s attorney argued that “his client killed because she is consumed by schizophrenic paranoia—not hate for blacks.” Or as the lawyer put it, “This case does not involve racism; it involves insanity.” To help undermine this claim, the prosecution sought help from Szasz, who testified that “schizophrenic paranoia” was a label, not an explanation.

That point is only reinforced by Allen Frances’ concession that “mental disorders most certainly are not diseases.” If they are not diseases, what are they, why do medical doctors treat them, and how do we know when someone has one? The mystery deepens when we consider Frances’ comments in a 2010 interview with Gary Greenberg in Wired that quoted him as saying: “There is no definition of a mental disorder. It’s bullshit. I mean, you just can’t define it.” While it is startling to see the lead editor of psychiatry’s bible say such things, it is even more surprising that he does not acknowledge the implications. If mental disorders are not brain diseases like Parkinson’s or Alzheimer’s, if they cannot be objectively verified or even satisfactorily defined, how can they justify forcibly detaining people and compelling them to take neuroleptic drugs?

Frances says psychiatrists should use coercion only as “a last resort when nothing else will do.” His example is a man who waves a gun and threatens to kill his daughter, a case that seems to cry out for intervention by police rather than psychiatrists. But because the man “meets the criteria for the construct ‘schizophrenia’” (an undefinable nondisease, by Frances’ own account) and claims to be hearing murderous commands (which would certainly qualify as “a socially unacceptable self-reported imagining,” to use Schaler’s phrase), he is locked in a mental hospital instead of a jail.

The “sexually violent predators” that Frances mentions, by contrast, are first punished as criminals, serving time in prison, and then “treated” as patients, kept indefinitely in mental institutions after they complete their sentences. This dual identity stems from two incompatible ideas that have both been embraced by our legal system: The sexually violent predator is convicted and imprisoned based on the premise that he could have restrained himself but failed to do so; then he is committed to a mental hospital based on the premise that he suffers from irresistible urges and therefore poses an intolerable threat to public safety.

Talk about a legal fiction! This incoherent theory is a transparent attempt to conceal what is really going on: the retroactive enhancement of duly imposed sentences by politicians who decided certain criminals were getting off too lightly. That policy is so plainly contrary to due process and the rule of law that it had to be dressed up in quasi-medical, pseudoscientific justifications. Yet Frances’ main objection to what he describes as a constitutionally dubious form of “preventive detention” is that some “ignorant and/or unscrupulous psychologists” too readily diagnose sex criminals as mentally ill.

Similarly, Frances regrets that some psychiatrists suppress political dissent by treating it as a mental illness, and in the Wired interview he complained that labels such as “bipolar disorder” and “attention deficit hyperactivity disorder” are applied too promiscuously. The implication is that if only these concepts were used more carefully and conscientiously, all would be well. But I have to agree with Schaler: The problem lies in the concepts, not in their application. As Schaler says, “These are terms used by members of the mental health profession to do and not do certain things to certain people.” If the terms do not describe a relevant reality, they are no more than an empty excuse for exercising power.

The Diagnostic and Statistical Manual of Mental Disorders, which is currently evolving from the fourth edition overseen by Frances into a fifth edition scheduled to be published next year, dramatically improved the reliability of psychiatric diagnoses (i.e., inter-practitioner consistency) by gathering together descriptions of behavior, giving them names, and listing criteria for assigning the codes that mental health professionals need to get paid by insurers. But the DSM did nothing to improve the validity of psychiatric diagnoses: the confidence that such labels indicate an underlying phenomenon with a common etiology, let alone one rooted in a measurable biological defect. Mental disorders, as Szasz has been pointing out for half a century, are whatever psychiatrists say they are. They are born by decree of the American Psychiatric Association, and they die in the same way. Hence homosexuality used to be a mental disorder but no longer is, while Asperger syndrome is for now but won’t be next year.

Frances says psychiatrists are calling balls and strikes as they see them, which is an apt metaphor in the sense that balls and strikes are meaningful only within the arbitrary rules of baseball. Psychiatrists change their rules at will, and those rules cannot be right or wrong, since psychiatrists create their own reality.

State psychiatry is a mouse in the manger of an elephant, a barnacle on a Leviathan. The coercive giant that straddles our country and that feeds its maw with people who have serious mental illnesses is not state psychiatry. It is our vast prison system, which coercively confines hundreds of thousands of nonviolent, severely mentally ill people who have wound up there for want of adequate treatment.

Some numbers tell the story:

Five times more people with severe mental illnesses are confined in penal institutions than are treated (or confined) in all psychiatric facilities combined in any given year. In a typical year, according to the Department of Justice, over 300,000 people with severe mental illnesses are incarcerated in state and federal jails and prisons. Yet for the same period, only about 40,000–60,000 people with such conditions reside in public psychiatric hospitals. This current total psychiatric hospital population is also only about ten percent of what it was at its height over a half-century ago, in or around 1957.

These numbers drive to two conclusions. First, what Professor Schaler calls “coercive psychiatry” is objectively a very small problem, although it was ten times greater in the past. Far from forcing people into treatment, psychiatrists every day face hard choices about who to force out of treatment: People who need and want help must be discharged due to lack of hospital space. People with major mental illnesses like psychosis and schizophrenia seek help at hospitals but are routinely turned away because the few available beds must be reserved for the handful who are truly dangerous. Getting out of psychiatric hospitals is occasionally hard for some people. Getting into them is hard for everyone.

It’s so hard to get treatment in a psychiatric hospital because nearly all of the funds that used to support them have been diverted into state prison systems. Which leads to the second conclusion from the incarceration numbers: Coercion of the mentally ill without psychiatry is an enormous problem.

The United States uses its prison system as a warehouse for adults and children with severe mental illnesses. This might be acceptable if it reflected the greater average criminality of this group. But it does not. As a group, people with these conditions are no more likely than typical people to break the law or to commit a violent crime. Their overrepresentation in the criminal system results from a host of factors including poor ability to communicate with police and attorneys, low socioeconomic status, confusion, and inability to follow directions—which leads to unintentional violations of parole or conditions of release, which leads to reincarceration. The list of such quotidian-but-important factors unrelated to increased culpability or public safety goes on and on. One of these factors is not, however, the role of psychiatrists, who become involved in a trivial, near-zero percentage of criminal cases.

Whether or not one views this mass incarceration as morally troubling, it is undeniably hugely costly. State prisons alone spend nearly $5 billion annually just to incarcerate non-violent mentally ill inmates. Many studies show that providing medical treatment and supportive housing to the same group of people would increase their subjective quality of life and reduce public spending. So why don’t we do this?

Put simply: Housing and treatment sound like benefits while prison sounds like (and is) punishment. And the punishment of people with mental illnesses seems to fit more easily with a certain version of the idea of personal responsibility. This version of personal responsibility suggests that if somebody doesn’t act right, you don’t give him a golden ticket—you give him a whack on the backside. Regardless of what that whack (or repeated whacking) costs to taxpayers and regardless of whether the approach changes behavior or produces any benefits.

This rational actor model of punishment and behavior change might make some sense if we were talking about rational actors and the importance of respecting their free choices. But despite the bizzaro edge cases that Professor Schaler describes of people choosing to mutilate themselves in gruesome ways, people with severe mental illnesses often are not expressing anything that looks like free choice because it doesn’t look like choice at all: Nobody has the power to choose to be confused, disoriented, or hallucinating.

This leads to the question of the reality of mental illnesses. Professor Schaler claims that as a matter of pure logic there can be no such thing as mental disease because the mind is a metaphor, not a bodily thing, and a metaphor cannot have a physical disease. Mind, he allows, may have reality as a social fact or construct but this is not real reality, the kind of reality you can put stitches in or cut with a scalpel.

This is a misdirection. “Mind” is not a metaphor. It is an abstraction that functionally describes some part of what our brains do. Abstractions and metaphors are not the same thing.

We use many abstractions to refer to our experience of the functions of diverse systems within our brains and bodies, like “memory” and “hunger.” When I describe my ability to visualize my mother’s face as “memory,” that’s an abstraction (or a functional description) about specific neurological processes. It corresponds to a hard core of physical reality. If I describe my imperfect memory as a capricious butterfly, that’s a metaphor. There is no butterfly. There is no correspondence between my imperfect memory and any butterfly “out there” in the world. But there is a correspondence between what I refer to as my “memory” and an “in there” that exists in my brain.

Doctors, scientists, and laypeople are comfortable speaking of “memory disorders” and “developmental disabilities” (formerly referred to as retardation). We accept that “cognitive impairments” often result from traumatic brain injury. Memory disorder, developmental disability, and cognitive impairment are abstract terms that functionally describe a range of underlying neurological injuries or diseases.

While philosophers continue to debate whether mind is entirely reducible to brain states or merely totally enabled by brain states, there is no doubt that the mind arises from the brain and that when the brain suffers injury or disease, those changes change the mind. As they change memory. As they change intellectual abilities. Imagine suggesting that people with memory disorders or developmental disorders suffer from no real medical condition and ought just to act differently because memory and intellect are metaphors. The universal response would be to find such a suggestion cruel and outlandish. Yet this suggestion remains acceptable in relation to mental illnesses.

The vast institution of coercive mental health treatment designed to transform socially unacceptable behavior into an illness and then forcibly treat that illness is itself a myth – or, more accurately, a ghost: the ghost of a long and sordid history in which mere social deviance was punished in the asylum. Yet severe mental illnesses properly defined are not myths, nor are they personal choices or eccentricities. They are genetically and developmentally influenced biological diseases. And the tragic problem is not government-coerced treatment, which almost never happens: It is the lack of treatment for people with severe mental illnesses that sends them into a spiral of homelessness, crime, substance abuse, and ultimately lives served out in prison or early death.

I agree with everything in Amanda Pustilnik’s brilliant and depressing analysis. During the past forty years, our mentally ill have gone from frying pan to fire. What started as the humanistically motivated civil rights crusade of deinstitionalization quickly degenerated into a callous exercise in cost cutting and neglect. The money saved on hospitals rarely followed the patients into the community where it could have provided support for decent, independent living. Instead, we have created a vicious revolving door—discharging our mentally ill from hospitals that were often admittedly far less than ideal and admitting them to totally inappropriate, dreadfully Dickensian prison environments. This is a barbaric throwback to more primitive times and a shameful contrast to the more humane, enlightened, and cost-effective community treatment available in most of the rest of the developed world. And things have gotten worse as a result of the erosion of state revenues that followed the banking crisis—two billion dollars have been cut from what were already draconian mental health budgets.

Regarding the comments of Jeffrey Schaler and Jacob Sullum: The fundamental question is whether there is a possible middle ground where their lofty principles defending individual freedom can meet the difficult reality that a psychotic person is not really expressing anything resembling a ‘free choice’ when he follows a command hallucination to jump out the window. So far, it looks like the answer is probably no—this is unfortunate, but not surprising. The view from their academic perch is very different from the reality in the clinical trenches. I will try to clarify my views in the continuing hope that we can still find some points of contact.

Schizophrenia is an extremely useful clinical construct; not a disease, but also not a myth and certainly not some arbitrary invention of psychiatry. The construct “schizophrenia” should not be reified or given more weight than it can carry—but it also shouldn’t be given less credit than it deserves as a useful predictor of prognosis and treatment. The same appreciation of both the limits, but also the uses, of psychiatric diagnosis applies to the other mental disorders included in DSM.

If the definition of “disease” requires a well-understood etiology and pathology, then schizophrenia—along with many other conditions treated by physicians—would not be considered a disease.

Despite all the powerful tools at our disposal, science is still in the early stages of discovering the causes and mechanisms of most the things that doctors treat. And we are often in the dark about how treatments work and why they sometimes don’t. Medicine is still based much more on trial and error than deep understanding of cellular mechanics.

We know less about schizophrenia than about lupus or Parkinson’s or migraine, but we really don’t know much about the pathogenesis of any of these or many other psychiatric and medical conditions. This doesn’t mean we can’t accurately diagnose and effectively treat them. Until we learn more, clinical constructs in psychiatry and medicine count as wonderfully useful, if temporary, heuristics.

Almost certainly, schizophrenia will not turn out to have a unitary cause. Bleuler (who first coined the term one hundred years ago) intuited this and described the ‘group’ of the schizophrenias. But the term “group” doesn’t do full justice to the great heterogeneity likely to characterize the causality of psychiatric disorder. Brain functioning is ridiculously complex and things can go wrong in all sorts of different ways. As with breast cancer, there will likely be dozens, perhaps hundreds, of different pathways to the final common descriptive construct we call “schizophrenia.” This inherent heterogeneity is also probably true of neurodegenerative processes that get lumped under useful but also temporary rubrics like “Alzheimer’s Disease” or “Parkinson’s Disease.”

It will be the work of many decades to tease out the multiple causes of most medical conditions. The human brain is the most complicated thing in known universe—far more complicated than any other organ of the body. It will yield its many secrets only very slowly and in small bites. But the secrets are there to be found along the steady (if frustratingly slow) path of scientific discovery. This is not the stuff of “myth” or “there are no balls or strikes til I call them.”

Indeed, schizophrenia can be considered a “myth” only by those who haven’t had much clinical or life experience getting to know well the unfortunate people who bear its burdens. Though not a discrete “disease entity” (like, say, tertiary syphilis or pulmonary tuberculosis), schizophrenia certainly does produce profound and prolonged “dis-ease”—that is, distress and incapacity. The patterns of its presentation are clearly recognizable, can be reliably diagnosed, run in families, have brain imaging correlates, predict course, and respond to specific treatments. Schizophrenia is real enough and no “myth” or psychiatric invention for those who suffer from it and for their loved ones. Pustilnik’s discussion is also worth rereading for its concise and elegant explanation of the epistemology of mental illness.

Admittedly though, schizophrenia is an imperfect construct. There is no objective biological or psychological test. Its presentation and course are heterogeneous and its boundaries are fuzzy. Schizophrenia has often been (and still is) diagnosed far too loosely, and antipsychotics are often prescribed carelessly, without proper indications or concern for dangerous side effects. The diagnostic evaluation is fallible when done quickly or inexpertly. It relies on information gathered from the patient and other informants, family history, and the findings on the mental status exam—after also ruling out the many psychiatric, substance use, and medical conditions that can mimic schizophrenia. Definitive diagnosis may require following the patient and observing his course over a period of months or years. But the procedures used in diagnosing schizophrenia are not very different than a neurologist diagnosing “migraine headache” or an internist diagnosing lupus or many other medical conditions. Reliable and accurate diagnosis of schizophrenia and other psychiatric disorders is possible when care is taken.

And with all its limitations, the diagnosis of schizophrenia does convey a great deal of information that is vital to clinical decisionmaking. Mental disorders don’t have to be well defined “diseases” (in the pathoanatomical sense) to be useful. It is enough if their recognition guides treatment, predicts prognosis, and helps to reduce our patients’ suffering and incapacity. Most of medical diagnosis does no more.

Involuntary commitment is easy to attack on idealistic, theoretical grounds—but in practical, real life is sometimes absolutely essential. There are rare and extreme circumstances when someone with the diagnosis of schizophrenia has dangerous, commanding delusions and/or hallucinations—placing him at unacceptably high and immediate risk of hurting himself or others. Involuntary psychiatric hospitalization is an unpleasant, but necessary, last resort in explosive situations where voluntary cooperation to reduce risk cannot be achieved.

As Pustilnik’s data make clear, the suggestion to instead call in the cops is absurdly off the mark. Jail has been the worst possible outcome for the individual, the jail, and the society; attempted arrest would often provoke more violence; and imprisonment is not a feasible legal solution if no crime has yet been committed. Legal systems throughout the world have long made provision for involuntary psychiatric commitment for the simple and compelling reason that at times no other societal response is more suitable. When nothing else will do, psychiatrists have a clinical, legal, and moral responsibility to protect people with serious mental illness who would otherwise be at great risk.

Involuntary commitment should never be casual or careless, should be a last choice, will usually be very brief, should be carefully monitored to prevent abuse, and is often appreciated by the patient after the fact. Commitment is always a judicial decision under very restrictive “emergency” criteria—usually imminent dangerousness to self and/or others. It is a necessary last option that can’t be wished away by armchair idealists who can suggest no realistic alternative—because there really is none.

The role of schizophrenia in the criminal justice system is even more complicated and fraught with hopeless controversy and misunderstanding. The construct of schizophrenia was created for clinical, not forensic purposes, and adversarial psychiatric testimony often sheds more heat than light. My personal view is that in boundary cases the diagnosis should be used extremely narrowly and sparingly. For example, I believe that the recent run of mass murderers whose killings are based on fringe, extremist political beliefs are usually better handled as murderers in the legal system than as mental patients in the psychiatric—even if their beliefs seem offensive and bizarre.

So where does all this leave us? Is it possible to reconcile Szaszian extreme libertarianism with common sense psychiatry? Throughout my career, I have advocated for an anti-paternalistic psychiatry—for engaging the patient as a full partner in all decisionmaking whenever this is possible; avoiding over-diagnosis and over-treatment; normalizing; and accepting individual difference. I have not seen much value in psychiatric hospitalization except when the risks of outpatient care have become too great to assume. I have discharged many hundreds of patients from emergency rooms and hospitals when the risks were real but worth taking. And I have admired Tom Szasz personally, respected his principled stance, and found great value in his cautions against the real and potential abuses of psychiatric power.

But I think Szasz and his followers go too far. Insulated from clinical reality, they present an inflexible, impractical, and extremist position that creates its own set of serious dangers (committing violent acts or winding up in jail) for the very people he is trying to defend. Individual freedom of choice is one of our highest values and is to be preserved at almost all costs- except in rare and extreme situations when it clashes with the even more pressing value of preserving life in those who have lost the capacity to make free choices. I could be wrong (and it is not really a fair argument), but I am pretty sure Tom would have been less extreme and dogmatic if he had allowed himself to have clinical experience dealing with real life-and-death situations rather than playing with abstractions.

Laying out the differences between libertarian theory and practical clinical reality is probably useful even if sadly we can’t hope to resolve them. I am fully mindful that involuntary treatment is a slippery slope that can easily lead to grave abuse (witness the loose diagnostic practice in sexually violent predator cases in the United States). But I am also convinced there are dangerous clinical situations in which it would be irresponsible to let things freely follow what would be an obviously disastrous course. Doctors should first do no harm, but also cannot shirk unpleasant responsibility.

I appreciate the cordial manner in which Dr. Allen Frances makes his point, agreeing with several things I wrote in my lead essay, “Strategies of Psychiatric Coercion.” Perhaps one of his more important concessions is that mental illness is a myth. He makes several serious mistakes, however. He did not read and study the meaning and purpose of legal fiction in my essay. Additionally, he claims I believe in “worthless myths.” As readers will see, there are important reasons why people believe in and perpetuate myths concerning psychiatry and mental illness.

Dr. Frances titles his response “A Clinical Reality Check.” While he agrees that mental illness is a myth, he avoids any mention of the nefarious ways psychiatrists coerce innocent persons in the name of practicing medicine. Psychiatrists lie when they say patients lack insight, as if this putative lack of insight is the same as literal unconsciousness. Psychiatrists lie when they assert that adults are children. And psychiatrists lie when they say they can accurately predict who is going to harm self and others.

Psychiatry has nothing to do with medicine, yet Dr. Frances persists in attacking me and colleagues who share my view for “living in ivory towers” because we point out the truth about what is done to people erroneously called patients. Involuntary commitment is a form of assault and battery. The principle of primum non nocere is clearly absent when innocent persons are injected with drugs, forced into four-point restraints, shocked with electricity, and forced to believe in things that are simply not true about themselves. Normally, we call it slavery when people earn their living by depriving others of their liberty. George Orwell would undoubtedly call it doublespeak when slavery is called freedom. However, Dr. Frances makes it clear that what he does is not the practice of medicine. He states that he does not believe in mental illness, and since mental illness does not exist, we must examine exactly what he does in the name of practicing psychiatry, clearly something other than medicine.

Dr. Frances’s Scotoma: The Reality of Legal Fiction

In my opinion, one of the most egregious of Dr. Frances’s errors as a response to my lead essay is to completely avoid addressing the concept and practice of legal fiction. This is such an important principle that it bears repeating. At the risk of being ignored again, I want to quote two important legal sources as cited in the work of Thomas Szasz.[1] First, here is the definition of legal fiction from Black’s Law Dictionary: “An assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place … . A rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible.”

As Szasz comments: “In the American historical-legal experience, the classic example of a legal fiction is the status of the Negro slave as part-person or property. No less lofty a legal document than the United States Constitution defines enslaved blacks this way.”

Second, the distinguished legal scholar Lon L. Fuller explains how we must try to understand a particular concept as a legal fiction: “To obtain an understanding of any particular [legal] fiction we must first inquire: What premise does it assume? With what proposition is it seeking to reconcile the decision at hand? In most cases the answer is easily discovered.”

Thomas Szasz has clearly explained how mental illness is our key contemporary legal fiction since the Civil War, much as the United States Constitution defined slaves as less than whole persons, chattel property, and three-fifths persons prior to the Civil War. I will quote Szasz directly here, again from his book entitled Insanity, because either Dr. Frances did not read my description of mental illness as legal fiction in my lead essay or because he simply did not understand what I wrote, for whatever reason: “Of course, Fuller is right when he observes that the function of a legal fiction is easily discovered. ‘What premise does it (mental illness) assume?’ It assumes that the idea of illness is applicable to the mind (or whatever we mean by the mind). ‘With what proposition is it seeking to reconcile the decision at hand (psychiatric coercions and excuses)?’ It seeks to reconcile the decision to deprive innocent persons of liberty, and to exonerate guilty persons of responsibility, with the proposition that insanity is an illness which annuls free will and responsibility, and with the claim that so treating certain persons does not violate our commitment to a political philosophy of individual freedom and responsibility under the rule of law.”

I am grateful that Dr. Frances acknowledges that what he does to people in the name of psychiatry has nothing to do with medicine. But what does he do in the name of psychiatry? Let’s take a look via the title of his response to me, “”A Clinical Reality Check,” assuming the title has something to do with what he has written.

“Clinical reality check” is a gimmick in the form of a hidden premise, an enthymeme, here used to suggest that psychiatry in fact does have something to do with medicine, when in fact the only thing that is medical about psychiatry is that psychiatrists have medical degrees. Again, Dr. Frances says he does not believe in the existence of mental illness. It only follows that if there is no such thing as mental illness, there is no such thing as treatment for mental illness. Furthermore, he asserts that while mental illness is a myth, and thus treatment of mental illness must be a myth, neither are worthless myths. I agree wholeheartedly. I don’t believe I ever asserted that both myths were worthless, quite to the contrary. Serious things are done to people, and not done to people, in the name of these myths. One is to treat innocent persons as if they are criminals – involuntary commitment to a mental institution. The other is to treat guilty persons as if they are innocent – the insanity defense.

The Myth of Mental Illness Is Hardly a Worthless Myth

Coercion practiced in the name of medicine is still coercion, whether it is constitutional or not. State-sanctioned coercion practiced in the name of medicine is, I agree, not a worthless myth. The legal fiction that slaves were three-fifths persons was hardly a worthless myth either. That legal fiction served at least two purposes: One, it facilitated reduced representation in Congress for southern slaveholders. Two, it assisted in preserving the institution of slavery. The myth that slaves were less than human was very useful indeed.

Similarly, mental illness as legal fiction is clearly not a worthless myth. As I pointed out several times now, the premise of mental illness as legal fiction is that the mind can be diseased the way the brain can be diseased. Not allowing this myth to be challenged as fiction in the courts allows the state and its psychiatric agents to deprive persons of liberty without due process of law. It is also a way to deprive the victims of criminals of justice. The idea of mental illness, mistakenly equated with the legal term “insanity,” is key to exculpating guilty persons of responsibility for their acts. It is also used to absolve persons who commit socially unacceptable behaviors of responsibility for their behaviors. In other words, the idea of mental illness is used to deprive innocent persons of liberty as if they were guilty of committing a crime, and the idea of insanity is used to pronounce guilty persons innocent of committing a crime. (Insanity, like mental illness, is a myth.)

Labeling people mentally ill makes them less than human, below the law. Labeling people as mentally ill dehumanizes them by “removing” moral agency. Persons no longer choose to act; they are “acted upon” by mental illness. Behavior is no longer voluntary; it is more a seizure, a convulsion. Behavior becomes allegedly involuntary, a logical impossibility. Institutional psychiatrists as agents of a therapeutic state are not commanded by the state to deprive innocent persons of freedom and make guilty persons innocent, they are empowered by the state to do so. Psychiatrists make a choice, just as Nazi doctors in the 1930s and 1940s Germany made a choice. Neither were commanded by the state to deprive people of life, liberty, and justice; both were empowered by the state to do horrible things to people.[2]

Mental illness is hardly a worthless myth, but it is not a useful myth in the way Dr. Frances views it. Dr. Frances uses the myth of mental illness to uphold the rule of man; it is a very useful myth when it comes to destroying the rule of law. Since mental illness and its treatment do not exist, anyone is susceptible to being diagnosed with mental illness and treated for it; the state empowers people to make and implement such arbitrary decisions, people such as psychiatrists, like Dr. Frances.

The war on people masquerading as a war on drugs is also hardly based on a worthless myth. Drug warriors (prohibitionists) benefit a great deal from myths regarding drugs and addiction. Drugs are neither safe nor dangerous, neither good nor bad. It all depends on who uses them, how they are used, who says they are safe or dangerous, good or bad, and so on. Drug enforcement agents earn a living on the myths that sustain drug prohibition, as do prison builders. Illegal drug dealers also depend a great deal on similar myths regarding drugs and addiction; in fact, their very existence depends on prohibition.

When Dr. Frances claims that he is helping others, especially those who don’t want his help, and despite the fact he does not believe in mental illness, he benefits most—as a self-appointed engineer of the human soul. But just as the Bill of Rights has no postscript stating “for mentally healthy people only,” it also has no postscript indicating that decisions regarding who is most deserving of liberty and justice are best left to the discretion of institutional psychiatrists.

We Cannot Predict Who Is Going to Harm Self and/or Others With an Accuracy Greater Than That Expected by Chance

While deprivation of liberty through involuntary commitment to mental hospitals is often done in the name of protecting people from themselves and protecting others from them, the fact remains that we cannot determine who is most likely to harm self and/or others with a certainty or accuracy greater than that expected by chance. Dr. Frances’s fantasy about “clinical realities” notwithstanding, this is a statistical fact, not fiction. We cannot tell who is going to hurt others and who is going to hurt themselves.

I have debated some of the most hostile forensic psychiatrists in the country, and even they acknowledge this final point of mine. While the liberal press keeps clamoring for more involuntary commitment in order to protect innocent persons from crazy murderers, the most sophisticated multiple regression models using endless demographic variables are no more accurate in detecting who will and who won’t commit a heinous crime than closing one’s eyes and saying “eenie, meenie, minee, moe … .” The Tom Cruise movie Minority Report was science fiction. Dr. Frances conveniently ignores another part of our one reality: People own their bodies. Their bodies are their properties. Suicide is a right, not a crime. Even if we could accurately predict who is going to commit suicide, suicide is a right, not a disease. The right to end one’s life is as sacred as the right to life, liberty, and happiness.

As Thomas Szasz quoted Genesis 11:6-9 in his book entitled The Second Sin (Garden City, NY: Anchor Press, 1973):

And the Lord said, ‘Behold, they are one people, and they have all one language, and this is only the beginning of what they will do; and nothing that they propose to do will now be impossible for them. Come, let us go down, and there confuse their language, that they may not understand one another’s speech.’ … Therefore its name was called Babel, because there the Lord confused the language of all the earth.

There may be different opinions about reality, opinions that are accurate or inaccurate in the sense that one person perceives reality accurately, while another has a difficult time differentiating between what he imagines about reality and what actually exists. This is very different, however, from saying there are two realities, or multiple realities, – or a “clinical” reality versus a “non-clinical reality.” When Dr. Frances writes about a “clinical reality” he is suggesting that there can be more than one reality.

There is no such thing as clinical reality when it comes to psychiatry, be it contractual or coercive. There is also only one reality, this reality, the here and now. “Clinical” implies medical activity. Psychiatry is not a medical activity. Dr. Frances works both sides of the street. First he says there is no such thing as mental disease. Then he treats people for mental disease by forcing them into a prison called a mental institution. Why does he contradict himself so? Because there is plenty to gain from pretending to practice a fake form of medicine called psychiatry.

What Really Happens in Contractual Psychiatry or Psychotherapy?

Consider contractual or consensual psychiatry. A person, often referred to as a patient, or a client, engages in a conversation with his psychiatrist or psychologist, also perhaps a social worker or a counselor. They both try to influence one another using rhetoric. They try to influence one another to think about themselves, and/or each other, in particular ways because they find some benefit, meaning, or investment in doing so. The rhetoric can be forensic, focused on the past; ceremonial, focused on the present; political, focused on the future; there is rhetoric that is base, inauthentic; and there is noble rhetoric, what I refer to as truth-telling.

Being a patient is a socially assigned role. Being physically sick can at times have nothing to do with being a patient. A person malingers, he pretends to be ill, in order to avoid being responsible. A person who is really sick can choose to reject medical treatment and use prayer instead of going to a doctor. A Christian Scientist may be deathly ill and refuse to be a patient. A person can be coerced into a mental institution, where he is called a patient. Despite the fact he is in a prison called a hospital, and called a patient by psychiatrists and nurses at the locked institution, he is not physically sick. We now know he is not mentally sick.

How Do We Decide a Person Really Is Sick?

Consider a person who has lung cancer. We make a clinical and objective assessment about the presence of metastatic adenocarcinoma of the lung. The disease may very well be asymptomatic. A diagnosis is confirmed using different objective methods to gather signs that may indicate the presence of specific diseases. In physical medicine, the majority of objective diagnoses are conducted through tests that reveal signs of disease.

But as Thomas Szasz has written, diagnoses are not diseases. Many people say that schizophrenia, attention deficit hyperactive disorder, fibromyalgia, anorexia nervosa, and so on, are real diseases; after all, “they’re diagnosable!” Disease is not defined by symptoms, by how a person complains. Disease is defined by physiological signs, cellular abnormalities. Imagine, if you will for a moment, what asymptomatic depression looks like. I’m serious. What does asymptomatic depression look like? And what do you call a person who has the delusion that he suffers from delusions?

In the Diagnostic and Statistical Manual of Mental Disorders (DSM), signs and symptoms are confused at times. The difference between the two is important from a pathological and nosological point of view. There are no signs of psychiatric disorders that lead to the meaningful diagnosis of a psychiatric disease.

Imagine you wake up suffering with acute abdominal pain. The pain becomes severe enough that you call your internist and request an appointment. Your internist asks you how you feel. You say that you feel pain in your abdomen. Your doctor may ask you when the pain started, he may ask you to describe the pain, he may ask you what makes your pain feel better or worse, and so on. You tell him. What is occurring in this dialogue with your physician is that you are reporting symptoms. Symptoms are complaints. They are subjective. There are some diseases that are diagnosed through symptoms alone, but they are few and far between. Migraine, for example, which could be caused by any number of things.

A physician may prescribe medicines that aim at treating symptoms even without necessarily knowing the origin of the disease. Seizures or convulsions may have diverse causes that may not be detected. Still, an anti-seizure medication such as Lyrica or Dilantin might be given and the internist still may not know the cause of the disease, the cause of the seizures. Your internist may ask you to take it easy for a few days. He may suggest that you drink more fluids, cut back on overeating, drinking alcohol, whatever. He will usually add that if you do not feel better after a few days he will want you to return so that he can run some tests, tests like blood tests, a test for fecal blood, a urinalysis, and so on. Maybe he will want you to have a chest x-ray. These tests reveal the possible existence of what are called signs. Signs are objective indicators of disease.

If your doctor were to ask you to come back for surgery, because he suspects, based on your symptoms alone, that you have, for example, a hiatus hernia, you might very well ask him to hold off. You may want a second opinion. Even more so, you’d like to see the results of a few tests because you don’t want to rely on symptoms alone to justify surgery. You don’t want to rely on his intuition, even if he is comfortable doing so. You want clear, hard evidence before you go under the knife.

The accurate and definitive diagnosis of disease is accomplished through signs, not symptoms. While symptoms may lead to tests, which in turn reveal the signs of disease, symptoms alone are highly unreliable when it comes to disease diagnosis. In part this is because the symptoms of one disease could also be the symptoms of many diseases.

Many serious and life-threatening diseases, it seems, are also asymptomatic at their early stages. Imagine you are joining the United States Marine Corps. You’ve been taking good care of yourself, you work out regularly, your diet and weight are fine, you rarely get sick, and in order to join the Marines, you must pass your physical examination. Towards the end of your physical, your physician says “you look very healthy, Mr. Sullum, your blood pressure is fine, you report feeling fit as a fiddle, but we just want to take a few tests.” You agree, you’re not worried.

He asks you to come in, he says he’d like to go over some of your test results. You meet with him the next day. Your internist says, “Jacob, we found traces of blood in your urine and we have some concerns about why this exists, so we’d like to run a few more tests. There’s enough blood in your urine to suggest you need to have a cystoscopy.” The camera at the end of a long tube inserted into your urethra can detect tumors or problems in your bladder and elsewhere. In other words, the cystoscopy can be used to reveal the signs of disease, cellular abnormality, lesions, and so forth.

While symptoms may lead to tests, and tests lead to signs, disease is ascertained by signs, not by symptoms. Symptoms are unreliable when it comes to the accurate diagnosis of disease. Now here is the problem as it pertains to psychiatric diagnosis, disease and treatment. All diagnosis of psychiatric disease is based on symptoms alone. There are no signs of psychiatric disease. There are no signs of psychiatric disease. That’s why there are no psychiatric diseases.

The Lack of Validity (and Reliability) of the DSM

The reliability and validity of psychiatric diagnosis has always been embarrassingly low. Validity refers to whether or not a measurement accurately represents what it purports to represent, and reliability refers to the extent to which a diagnosis is consistent.

For example, some psychiatrists claim that multiple personality disorder is a type of thought disorder. Other psychiatrists claim that multiple personality disorder is a type of anxiety-based disorder, a dissociative disorder.

Most psychiatrists recognize that there are serious problems with diagnostic reliability in the DSM, but they do not seem to recognize the relationship between reliability and validity. High reliability does not equal high validity. Imagine you have a cough and on the basis of symptoms alone, one group of internists claim you have tuberculosis and another group of internists claim your have lung cancer. I suspect you are not going to be very confident in either group of doctors. The diagnosis is highly suspect because the reliability is exceedingly low.

Psychiatrists and authors of the DSM have long been concerned about this problem, and they have managed to come up with a group of symptoms that increases the reliability of a psychiatric diagnosis. However, just because reliability is high does not mean that validity is high. Validity, remember, has to do with the extent to which measurement accurately represents what it purports to measure. Do the alleged characteristics of bipolar disorder accurately represent a disease called bipolar disorder? No. There is no such thing as a mental illness called bipolar disorder. Yes, people’s moods go up and down, sometimes to an extreme degree, but that does not mean a disease exists. Remember, if you will, how in my lead essay I discussed the difference between description and explanation.

Do You Believe in Witches?

Consider the “diagnosis” of people called witches in early modern Europe. Witch detectors, also known as “prickers,” relied on a book called The Hammer of Witches, the Malleus Maleficarum, that allegedly guided them to ascertain or “diagnose” who was a witch and who was not. There were allegedly certain “signs” of being a witch. Signs were often confused with symptoms. For example, some people said that the signs of being a witch were certain markings and discolorations on their skin. Other signs were points in the body where blood would not come out when a needle pierced or pricked their skin. Bad breath was a sign. Tying the right thumb to a suspected witch’s left big toe, and tossing the person in a body of water allegedly revealed that a person was a witch. If the person floated, she was a witch. If she sank, she was not a witch. If she sank, they supposedly would dive in and save her. However, if they didn’t rescue her in time, it was allegedly not a problem. The important thing was that her soul was saved. Since she was not a witch, death didn’t matter.

And what was a witch? A witch was someone who had made a pact with the devil. Now here is where the analogy between witchcraft and present-day reliability and validity comes in. A person could meet all the symptoms and signs of being a witch and still never made a pact with the devil. Of course, no one made a pact with the devil. Why? Because the devil did not and does not exist. Similarly, God did not and does not exist.

Denying the existence of witches was one of the greatest sins a person during the time of the Inquisition could commit. And as I pointed out in my lead essay here, denying the existence of mental illness is an indication that a person is mentally ill. This lack of agreement with the psychiatrist, cleverly referred to as “lack of insight,” is given a medical sounding name, anosognosia, meaning feigned or real ignorance of a disease. This term, as I indicated in my first essay, is used to justify involuntary commitment to a mental hospital. It has also been used to justify variations on the insanity defense.

There is one other point I’d like to mention here, and perhaps elaborate on in my next reply: As the great British philosopher Sir Karl Popper pointed out, for any assertion, theory, or hypothesis to be scientifically worthwhile, the assertion must be falsifiable. How can we falsify the claim that schizophrenia, affective or mood disorders, anxiety-based disorders, personality disorder, or delusional disorders are real diseases? By gathering evidence to support our hypothesis? No. By trying to disprove the claim, theory, or assertion? Yes. This is the way all “respectable” science proceeds. Not so when it comes to psychiatry. And how can we falsify Dr. Frances’s claim regarding a “clinical reality”?

Before I close this second essay, I want to revisit what must, according to many of our readers, be the main point of Dr. Frances’s first essay. After leading with some very kind and much appreciated expressions of gratitude for the work that both Thomas Szasz and I have done separately and together for many years now, Dr. Frances kindly states the following:

I agree completely with Schaler and Szasz that mental disorders are not diseases and that treating them as such can sometimes have noxious legal consequences. But I strongly disagree that mental disorders are worthless ‘myths’ and think it greatly over-simplifies a complex clinical and legal conundrum to categorically assert that involuntary treatment should be completely eliminated.

While I am reluctant to speak for Dr. Szasz, as he and I both agree and disagree on many things, I believe it is safe for me to say that we both agree with Dr. Frances on this point: The myth of mental illness is far from worthless. God is a myth, as far as I am concerned, and clearly many people benefit from believing in God, especially the leaders of various religions in theocratic states. Similarly, many people benefit from believing in the myth of mental illness, especially psychiatrists and other authorities empowered to do and not do things to people living in a therapeutic state.

Notes

[1] Szasz, T.S. (1997). Insanity: The idea and its consequences. Syracuse, NY: Syracuse University Press, pp. 319–321, citing Black, H.C., Black’s Law Dictionary, rev. 4th ed, St. Paul, MN: West and Fuller, L.L. (1976). Legal Fictions. Stanford, CA: Stanford University Press, p 53.

[2] Proctor, R.N. (2003). Racial hygiene: Medicine under the Nazis. Cambridge, MA: Harvard University Press.

In his powerful commentary, Allen Frances suggests that there may be a stalemate between libertarians and people who work with those who suffer from mental illnesses. He shows the reality of people with these diseases, and it calls out for a response. I am not a libertarian philosopher, but I’d like to explore why a stalemate exists and make some modest suggestions for how a way forward could be compatible with libertarian philosophy and with the best interests of people who suffer from mental illnesses.

At its best, libertarian theory aims to exalt the human personality by granting its greatest scope for freedom. It aims to accomplish this through a particular vision of individualism that rests on freedom from subordination to a collective. Ayn Rand, writing during the rise of fascist and totalitarian states, witnessed the oppression of the coercive collective, of policies that brutally subordinated individuals and entire populations. In Rand’s philosophical response, people would never be cogs in a collective machine because they would never submit to an enterprise designed to further some putative greater good.

Whether all communities are necessarily more coercive than empowering or whether this kind of individualism is practicable remain open for debate amongst thoughtful people. But libertarians and non-libertarians alike can agree that libertarianism is intended to be a theory of respect for individual autonomy, necessarily including cases where individuals use their autonomy badly.

Libertarian theory gets entangled with issues of mental illness—and makes the mentally ill a kind of prop in this political discourse—in the following way: If one credits that people with mental illnesses are expressing disease symptoms, not authentic individual choice, that appears to crack the strong-form libertarian argument that all individual choice must be respected. For if we should not respect the choices of mentally ill Person A, then perhaps we also should not respect the choices of Person B, who is not clinically mentally ill but isn’t quite mainstream either. It is hard to draw a bright line dividing mental illness from non-disease-based mental and social difference; thus, crediting that the mentally ill need help appears to lead to a slippery slope. This only appears to be a slippery slope, however, because increasingly rigorous definitions of disease will continue to separate those who are socially deviant from those who are medically ill and, within that, to determine degrees of affliction.

Libertarian theory and denials of the reality of mental illness go hand-in-hand because of the fear of this likely illusory slippery slope. If there is no such thing as mental illness, and if “mental illness” is just a term for bad behavior, then—poof!—the problem of constructing a responsible libertarian approach to such people goes away. It defines away the problem.

Defining away the problem is certainly easier than constructing an answer to it, but it’s a dodge, a rhetorical feint that avoids the hard philosophical and practical questions of what a libertarian response should be to people whose mind/brain are compromised. Defining away the problem allows indifference to suffering to wear the mantle of respect for autonomy. Imagine the following: You’re out hiking one day and you find a person who is trapped under a boulder. He is pretty far gone and can’t communicate with you. You have two choices: You could remove the boulder, freeing him. Or you could shrug and say, “Hey, he must have chosen to be under that rock. That’s not my problem.” Is the latter choice really libertarian? Or is it window dressing for indifference, the easier path dressed up as philosophy?

If we don’t define away the problem, then the real challenge for libertarianism appears. The hard question arises if the behavior of severely mentally ill people is itself the product of coercion—the coercion perpetrated upon them by a physical impairment, like a boulder fallen upon an unwitting traveler. If these people labor under the coercion of an illness, then the liberty-promoting path is to help them be freed of the illness, to lift the boulder.

There are many potentially liberatory and libertarian (or at least libertarian-compatible) ways of approaching this problem. Serious mental illness may be the nail, but we have a lot more in our toolkit than the hammer of coerced treatment (a hammer, I hasten to add, that does have its place in extreme situations but that is not a general-use tool). I will not hold myself out as a libertarian philosopher, but I can suggest a few approaches, for what they’re worth:

• Let’s make treatment more accessible so that mentally ill people who present themselves at hospitals asking for help aren’t turned away
• Let’s work together to integrate inpatient and outpatient treatment, so that ill people who get out of hospitals don’t need a PhD and a team of administrative assistants to figure out how to continue their care at home
• Let’s train our first responders how to deal with mentally ill people so that they don’t over-arrest them due to miscommunications
• Let’s design prison-release protocols that match up released offenders with voluntary services outside of prison, so that they don’t wind up back in prison in a matter of days or weeks
• Let’s treat people with mental illnesses with dignity and with a desire that they may maximize their human potential, as we do with people with intellectual and physical disabilities and as we ought with all people.

There are many other potential approaches that are liberty-promoting (and quite possibly cost-saving). I would appreciate hearing other ways forward from the erudite and accomplished participants in this debate. Libertarian theory is not, or is not supposed to be, a cover for indifference to other human beings. And indifference—“Hey, it’s their choice. Not my problem”—is not a political theory. The harder but more worthy endeavor is to figure out a set of libertarian responses that engage with the realities of the mentally ill.

Professor Schaler has misread and misstated my views.

1) Most emphatically, I have not agreed with Professor Schaler that mental disorders are a myth. Quite the contrary, my strongly held view (stated several times and in very plain language) is that mental disorders are very useful constructs, not well established diseases—but certainly not myths.

2) Professor Schaler claims that I “avoid any mention of the nefarious ways psychiatrists coerce innocent persons in the name of practicing medicine.” Again, please reread my first response where I provide specific examples of the risks of coercion drawn from the United States, China, Russia, and Australia. And in more than a dozen papers and postings, I have relentlessly exposed the abuse of involuntary commitment in Sexually Violent Predator hearings. I am anything but blind to the risks, but unlike Professor Schaler, I understand the occasional necessity.

3) Professor Schaler attributes statements to me that I simply didn’t make—that all patients lack insight, that this is equivalent to unconsciousness, that patients are children.

4) I have written often that psychiatrists cannot accurately predict precisely who is going to harm self or others and precisely when such violence will occur. The prediction issue came up recently in regard to discussions about the relative roles of psychiatry and gun control in reducing the harms done by mass murderers. Psychiatrists can’t mind read or pull needles out of haystacks—we can do no more than identify a group of people at high general risk, the overwhelming majority of whom require no hospitalization at all. Clearly, involuntary commitment should be invoked very rarely and as a last resort—only under the most extreme circumstances when it would be irresponsible to ignore risks that are urgent, obvious, immediate, and terrifying and only when it is impossible (at least for a time) to forge a voluntary therapeutic relationship. There should always be careful clinical quality control and by law there is always a judicial monitoring process.

5) Just as psychosis is no “myth,” the laws governing involuntary commitment are not a “legal fiction.” They are in place throughout the world for the simple reason that involuntary commitment is sometimes a necessary practical response to a difficult problem that has no other solution. Nothing in Professor Schaler’s ivory tower ideology changes this clinical or legal reality.

Jeffrey Schaler’s response is not really a response; it is just a repetition. He misstates my views and offers no practical solutions to the problems I raise and none to the even bigger problems raised in Amanda’s brilliant discussion of the inappropriate warehousing of mental patients in the prison system.

Amanda Pustilnik surely is right that too large a share of the U.S. population is behind bars, including half a million drug offenders, people whose probation or parole is revoked because of drug use, and various nonviolent criminals subject to draconian mandatory minimum sentences. Whether some of those people should be locked up in mental hospitals rather than prisons is another matter.

One of the main questions raised by Pustilnik and Allen Frances is what to do with people whose disturbing behavior falls short of a crime. Frances complains that “armchair idealists… suggest no realistic alternative” to coercive psychiatric treatment. I am pretty sure that refraining from using force against someone who has committed no crime does not count as a realistic alternative as far as Frances is concerned, but to me it seems morally mandatory.

I see the logic of making exceptions for people whose ability to make decisions for themselves has been compromised by a brain injury or neurological illness. But when the condition allegedly impairing someone’s will or clouding his judgment is a “construct” that in practice amounts to nothing more than a catalog of his troubling actions and statements, the potential for abuse is clear. If “there is no objective biological or psychological test” for mental disorders, as Frances concedes, using these labels to strip people of their liberty (or relieve them of responsibility) is hard to reconcile with the rule of law.

Frances suggests, for instance, that “mass murderers whose killings are based on fringe, extremist political beliefs are usually better handled as murderers in the legal system than as mental patients in the psychiatric—even if their beliefs seem offensive and bizarre.” But as I suggested in my opening essay, such classifications seem utterly arbitrary, making legal outcomes hinge on psychiatric whim.

As far as common ground goes, I believe that Thomas Szasz himself would partly agree with Frances’ remarks about deinstitutionalization:

What started as the humanistically motivated civil rights crusade of deinstitutionalization quickly degenerated into a callous exercise in cost cutting and neglect. The money saved on hospitals rarely followed the patients into the community where it could have provided support for decent, independent living.

Similarly, Szasz had this to say in a 2000 interview with Reason:

This whole deinstitutionalization process was just as involuntary as the institutionalization process. First the patients were placed in the institutions against their will. Then they were kept there for a long time, and generally they became desocialized. They had no way of making a living, and their families didn’t want them; they had no particular place to live. Instead of being allowed to stay in the hospital, which the majority of them probably considered their home, they were forcibly evicted and placed in other institutions run by the state but which are no longer called hospitals.

Under the policy preferred by Szasz, all treatment would have been voluntary:

[Patients] would have been free to leave, and they would have been free to stay. They could have simply got room and board. That option was never given to anyone. I wouldn’t give that to anyone except those who have already been victimized. They should be given every chance to get out insofar as they want to get out.

Professor Amanda Pustilnik’s contribution to this discussion is, unfortunately, disappointing. In my opinion, she has an ethical and moral obligation to explain to us why she advocates a particular policy—whatever that may be—instead of making such profoundly naïve pronouncements about how we should work together to help the mentally ill—do what? So that “ill people who get out of hospitals don’t need a Ph.D. and a team of administrative assistants to figure out how to continue their care at home”?

Hunh?

This, followed by high school–level “rah, rah, sis, boom, bah, … gooo… team!” … is a pathetic, if not naive attempt to insult those who take the issues of liberty and responsibility seriously, be they “libertarian” or not.

Back to square one, Professor. What do you mean by “mental illness”? How do you define “mental illness”? How do you describe “it”? How does “it” compare to real illness? Why isn’t it included in standard textbooks on pathology? What do you mean by treatment? What about due process? What about the failure to accurately predict who will and who will not harm self and others? How do you explain “it”? What are the various implications for legal, clinical, social and public policy, when you define, describe, and explain “it” one way compared to another?

Until you can answer some of these questions, I’m afraid it’s hard to take you seriously.

Congratulations to Amanda Pustilnik for her insightful analysis elucidating why it is so hard to reconcile libertarian ideals with clinical reality.  And also for her very useful suggestions toward achieving the much needed, but elusive, synthesis.

I understand and share the libertarian fear that we can easily slide down a very slippery slope once we restrict the freedom of psychiatric patients. Experience teaches that countries, including our own, sometimes find it convenient to solve perceived societal problems by an improper misuse of psychiatry. And there is no bright line definition of mental disorder to provide a firewall against all the possible abuses. I have recently reviewed dozens of cases where rapists have been incorrectly redefined as mental patients in order to justify a preventive detention that would otherwise be deemed unconstitutional. In the 1980s, I witnessed the psychiatric mislabeling of political dissidents on visits to the Soviet Union, and recently I heard anecdotal reports of inappropriate commitments in China to quell economic dissent.

We can all agree that it is crucial to prevent these misuses of psychiatry in the service of inappropriate state coercion. The disagreement arises in the handling of the extreme psychiatric emergency—which creates an inherent conflict between the strictest libertarian ideal of absolute free choice and the practical need for a commonsense exercise of clinical responsibility.

Schaler and Sullum solve the dilemma by simply wishing it away. If schizophrenia is a myth, then the proper management of schizophrenics presents no theoretical problem—we should always respect their rights to free choice just as completely as we would respect the free choice of everyone else. This is an appealing and reasonable position—except in dire psychiatric emergencies when it devolves into allowing the patient the complete freedom to kill himself, the complete freedom to harm others, the complete freedom to die of exposure, and (all too often recently) the complete freedom to wind up in prison.

Schaler and Sullum ignore these real-world unintended consequences of their conceptual purity. They persevere in repeating an irrelevant straw man argument—if schizophrenia does not meet a stringent definition of disease, it must then be considered a myth and can therefore be ignored in clinical and legal decisionmaking.

But many medical conditions fail their disease test and certainly are not myths. Ask anyone with migraine if their symptoms are mythical. Schizophrenia is a very useful construct—no more, no less. It is a well described syndrome with a characteristic set of symptoms that can be diagnosed accurately; it runs in families and clearly has some genetic predisposition; it predicts course and some biological test results; and it responds reasonably well to specific treatments.

Schizophrenia is anything but a myth for the people who have its symptoms and for the people who care about them. The suffering of schizophrenia is real; the delusional convictions are experienced as real; the voices sound like real voices, the loss of judgment is real; and the risk of harm is real and cannot be blithely ignored. Only a closeted theorist, lacking clinical or personal experience, could think otherwise and suggest that it is okay to do nothing (beyond calling the cops) to help the patient avoid serious danger in an emergency situation.

What is schizophrenia, if it is not myth but also is not yet a discrete pathoanatomical entity? Schizophrenia is a construct in the same way that all of our understandings of the world are constructs. Our brains are ill-equipped ever to perceive reality straight on and without interpretation. This was Kant’s most powerful insight and it has been confirmed in thousands of experiments in cognitive psychology. We are constantly constructing perceptions and finding temporary meanings that are useful, but never completely accurate or the final word. One example: we subjectively experience matter as solid even though it objectively consists of tiny particle-like stuff surrounded by vast swaths of empty space. But this recently gained understanding of quarks and quantum mechanics doesn’t make the familiar construct of solid matter any less useful in negotiating everyday life. Constructs provide necessary heuristics even when they are not altogether definitive or completely accurate. Schizophrenia is no more than our current approximation of one type of mental disorder—but it is a very useful approximation in guiding clinical and legal decisions. The myth metaphor has outlived whatever usefulness it ever had.

Fifty years ago, Tom Szasz made an extremely valuable and courageous contribution to psychiatry when he so fiercely criticized  what was then the wildly excessive use of involuntary commitment. The situation has since changed dramatically, partly due to the success of his crusade. We no longer have tens of thousands of involuntary patients warehoused indefinitely under terrible conditions in massive psychiatric hospitals. Most psychiatric beds have been closed and it has become much harder now to get into, rather than out of, a hospital. Involuntary commitment is now relatively rare, usually brief, carefully monitored, and used only as a necessary last resort in extremely dangerous psychiatric emergencies.

Szasz’ followers seem stuck on fighting the last war. The noble Szaszian goals of freedom and dignity will always be relevant, but the rehashed rhetoric offered by Schaler and Sullum is now off target and has far exceeded its expiration date. They have not offered any solutions for today’s real crisis of coercion—the wholesale, inappropriate incarceration of psychiatric patients in prisons. And they offer no way to adapt libertarian principle to the dangers posed by psychiatric emergencies.

Pustilnik points the way toward a new synthesis: “The harder but more worthy endeavor is to figure out a set of libertarian responses that engage with the realities of the mentally ill.” She also lays out the means—providing improved community mental health services and decent housing to allow patients the freedom of living outside the coercive institutional environments provided by both prison and hospital. As she states: “There are many other potential approaches that are liberty-promoting (and quite possibly cost-saving)… Libertarian theory is not, or is not supposed to be, a cover for indifference to other human beings.” Because it provides patients with adequate community care, Europe is doing a much better job of protecting their liberty than we are.

Two hundred years ago, Pinel freed the mentally ill of their chains. Fifty years ago, Szasz helped free them from psychiatric incarceration. Now, we need someone to help get them out of jail. We owe hanks to Amanda Pustilnik for pointing us in the right direction.     

Amanda Pustilnik and D.J. Jaffe seem to be arguing that “schizophrenia is a disease of the brain in the same sense that Parkinson’s disease and multiple sclerosis are diseases of the brain,” as E. Fuller Torrey puts it. If so, it makes sense, as Jaffe suggests, to have a legal procedure for determining when that disease has so impaired someone’s mental faculties that he is no longer capable of managing his own affairs, in which case a court-appointed guardian could make treatment decisions on his behalf. But Allen Frances—who, as the man who literally wrote (or at least edited) the book on mental disorders, surely counts as a reliable authority—forthrightly declares in his opening essay that “mental disorders most certainly are not diseases.” He argues that they nevertheless are useful “constructs,” although elsewhere he has called them “bullshit,” saying, “There is no definition of a mental disorder…. You just can’t define it.” I repeat these quotations not to score cheap debating points but because I am genuinely confused about how advocates of involuntary psychiatric treatment understand the conditions that supposedly justify it.

Another apparent inconsistency that gives me pause: Jaffe cites Ted Kaczynski, the Unabomber, as an example of someone whose “untreated mental illness” drove him to murder. By contrast, Frances says, “I believe that the recent run of mass murderers whose killings are based on fringe, extremist political beliefs are usually better handled as murderers in the legal system than as mental patients in the psychiatric—even if their beliefs seem offensive and bizarre.” If Kaczyski, who produced a manifesto explaining in great detail the motivation for his crimes, does not count as a murderer “whose killings are based on fringe, extremist political beliefs,” who does?

Distinguishing between eccentric beliefs and psychotic delusions is no mere academic exercise, since such judgments determine who can or cannot escape criminal liability and who can or cannot be forced to undergo treatment—especially if the rules for civil commitment are loosened in the way Jaffe proposes. Should everyone who behaves like Jared Lee Loughner did before he went on his shooting rampage in Tucson be subject to preventive detention in a mental hospital? The recent case of Brandon Raub, who was detained for psychiatric evaluation in Virginia based on the wacky political opinions he expressed on Facebook, gives you a sense of how that might work in practice. In retrospect, it is very easy to identify people whose bizarre opinions and off-putting actions signaled a homicidal future. Before the fact, not so much.

While Jaffe says people with “a very serious and persistent mental illness like schizophrenia” are prone to violence, Pustilnik says they are not. “As a group,” she writes, “people with these conditions [“severe mental illnesses”] are no more likely than typical people to break the law or to commit a violent crime.” And although Jaffe seems confident that psychiatrists can reliably predict violence, research does not support that sanguine view, as Jeffrey Schaler points out. This is a real problem if “danger to others” is the justification for stripping people of their freedom.

Appealing to libertarians, Jaffe wants to flip that view of reality, saying coercive psychiatric treatment actually restores people’s freedom. One way we know this, he says, is that most people who are civilly committed for treatment of schizophrenia “retrospectively express gratitude.” Frances likewise writes that “the majority [of involuntarily treated mental patients] are unhappy at the moment when involuntary treatment is imposed on them, but they understand why it was necessary once they have recovered from their acute symptoms.” This retroactive validation of coercion seems suspect to me, not least because formerly confined patients may surmise (perhaps correctly) that agreeing they were correctly diagnosed and properly treated helps them remain free by showing they have recovered their senses.

Then, too, retrospective gratitude could be used to justify all manner of paternalistic interventions, whether or not they involve a psychiatric diagnosis. If the government began kidnapping obese people and forcing them into a strict diet-and-exercise program, how many newly thin former captives would eventually be thankful for the help? Let’s not find out.

Although I am not ready to endorse that policy, I think people should be able to sign up for “fat camp” (or for databases of problem gamblers who want to be barred from casinos) if they feel they need the external discipline. Through such arrangements, people can bind their future selves to rules they otherwise might not follow. That sort of precommitment may be analogous to the “advance directives” suggested by Frances.

Whether we measure success by violence prevented or misery mitigated, the question remains: How can a conscientious mental health professional know in advance that forcible treatment is justified, especially when there is no objective test for the will-impairing condition that may or may not be present and may or may not be an actual brain disease? And what level of confidence should we expect?

Back in 1974, when he seemed more inclined to worry about such details, Torrey wrote:

It is better that we err on the side of labeling too few, rather than too many, as brain diseased. In other words, a person should be presumed not to have a brain disease until proven otherwise on the basis of probability. This is exactly the opposite of what we do now as we blithely label everyone who behaves a little oddly “schizophrenic.” Human dignity rather demands that people be assumed to be in control of their behavior and not brain diseased unless there is strong evidence to the contrary.

It is not clear what standard of proof Torrey had in mind. “On the basis of probability” suggests something like a “preponderance of the evidence” standard (i.e., this person is more likely than not to be suffering from a will-impairing brain disease), while “strong evidence” might mean a heavier burden of proof (clear and convincing?). Requiring proof beyond a reasonable doubt, the standard used in criminal cases, might leave out many people who, by their own future judgment, would benefit from treatment. A more relaxed standard, however, risks locking people up and forcing them to take psychoactive drugs—no small infringement on liberty—for no good reason.

Before deciding how to balance those risks, shouldn’t we have more confidence that the “constructs” championed by Frances and the cognition-crippling brain diseases to which Jaffe likens them are fundamentally similar? The fact that mental disorders are treated by psychiatrists rather than neurologists suggests otherwise. So does the rhetoric equating mental illnesses with biological diseases. As Szasz says, one telling difference is that people do not go around insisting that cancer or Alzheimer’s is every bit as real as schizophrenia.

Pustilnik likens mental illness to a boulder pinning a hiker who “is pretty far gone and can’t communicate with you.” She sees two choices for someone who happens upon him: “You could remove the boulder, freeing him. Or you could shrug and say, ‘Hey, he must have chosen to be under that rock. That’s not my problem.’” To my mind, the crucial difference between helping the hiker (even without explicit consent) and forcibly treating someone diagnosed with a mental disorder is that the boulder indisputably exists, and the hiker is clearly trapped by it. A closer analogy would be seeing someone lying on the ground, surmising that he is pinned by an invisible boulder, and whisking him away, ignoring his objections and dismissing his explanation that he was merely resting. Invisible boulders pose serious legal and moral problems that cannot be resolved by compassion and good intentions.

I am saddened by Professor Schaler’s ad hominem attack because it bypasses opportunities for substantive engagement. I am particularly perplexed at his objection to my proposal that released offenders should face less administrative burden in satisfying their conditions of parole and continuing their health care, since the complexity of this system leads to much innocent failure and re-incarceration. Should there be more administrative burden?

For the benefit of the readers, I will summarize my position as clearly as possible:

• The claim that state psychiatry is a vast coercive apparatus, which was the premise of Professor Schaler’s original essay, is empirically false. Please review the statistics about the relative size of state psychiatry. Holding aside the issue of whether one credits the reality of mental illnesses, the major place in which citizens experience state coercion is not in our small and shrinking psychiatric hospital systems but in our vast prison systems. The convicted wind up in prisons without the involvement of psychiatrists or psychiatry in more than ninety-nine percent of cases. That’s not hyperbole; fewer than about half of one percent of criminal matters involve a defense of insanity.
• People who are concerned about liberty and self-fashioning, as Jacob Sullum suggests in his fine piece, should concern themselves with the carceral and drug sentencing policies of our state and federal governments—not with the imagined foe of coercive state psychiatry. Those who are particularly concerned about the liberty interests of people with mental illnesses may wish to work to enhance access to voluntary treatment so that fewer mentally ill people wind up in the prison system as a hospital of last resort.
• While state coercive psychiatry is a myth, mental illness is not. By now, Professors Frances, Jaffe, and Pies have written more substantively and eloquently on this issue than I can. Severe mental illnesses and their symptoms, like psychosis, hallucinations, mania, and fugue states, are biologically real entities that arise from organic dysfunction—just as memory disorders like Alzheimer’s, learning disorders like dyslexia, and developmental disorders like autism arise from biological dysfunction.
• This is not an article of faith, except insofar as I place more faith in a position supported by great volumes of empirical evidence and hundreds of thousands of person-years of clinicians’ experiences than in Professor Schaler’s position, which is supported mostly by hollering.
• Many of the most important and well-studied medical disorders are not found in a “textbook on pathology.” Professor Schaler’s contention that schizophrenia must not be real because he can’t find it in a pathology text book is a trivially false objection, as I’m not the first even in this particular debate to point out. Some infectious diseases like flu arise from a single pathogen; most don’t. Some genetic diseases like sickle cell anemia arise from a single type of cellular malformation; most don’t. Even back pain and migraine, two of the most frequent causes of disability and pain in people’s lives, have no single pathophysiology.
• That serious mental disorders have a biological basis does not mean people should be treated in a reductively biological way. As human beings, we constantly make meaning out of our experiences. The ways in which we make meanings feed back into and shape our experiences—and even to some extent shape our bodies and brains.
• There certainly are problems with the current state of the art in defining and treating mental disorders. Like all human institutions, psychiatry is not perfect. Currently there is poor inter-rater consensus on diagnosis and treatment. Finding a treatment that works is often hit-or-miss. Evidence-based medicine must make greater inroads in psychiatric treatment, as it must in other areas of medical practice.
• Commercial incentives, which lead to innovation in drug development, also can lead companies to unjustifiably expand the definitions of mental disorders: The more types of ordinary human misery that can be defined as disease states, the more pills can be sold. This is a danger, but it is not a danger unique to the mental health field. Clever commercializers have defined many aspects of daily life as “problems” that, by amazing coincidence, their products can fix. This requires vigilance against false advertising, not a rejection of the field.
• How does all of this relate to the law? That’s both a big and a small question. It’s a big question because mental illness prompts us to think about free will and the uncomfortable possibility that, even in mentally typical people, chemistry is at work behind the scenes when we think we’re being free choosing agents. And what’s a bigger question than that? But it’s also a small question because, in practice, mental illness plays almost no role in the law—and particularly plays a vanishingly small role in the criminal law. The much-debated, much-maligned insanity defense is a big deal only in scholarly circles and in the popular imagination. Where it is emphatically not a big deal is in courtrooms. There are a couple of insanity acquittals (people found not guilty by reason of insanity) per year—nationwide. It is the idea that we actually have a viable defense called “insanity” anymore that is the true legal fiction, not mental illness itself. Currently, legal constructs of insanity neither materially undermine nor materially support norms of personal responsibility because the insanity defense is a statistical irrelevancy.
• Professor Schaler asked where I stand. I’ll repeat it again: People with mental illnesses should be able to find reasonably accessible voluntary treatment. Treatment does work—but due to funding shifts over the last several decades, treatment for severe mental illnesses in the United States is mostly provided in and through the prison system, even for children and adolescents. This is a terrible human, social, and financial cost. People who care about liberty should care about re-locating opportunities for treatment from prisons and jails and back into non-restrictive community environments.

It is difficult for me to add to what Jacob Sullum writes so well. So far I agree with everything he contributes here. As a layman, Sullum knows more about psychiatry and psychology than most psychiatrists and psychologists. Much of the policy created about “mental illness,” as well as much of the pseudo-science, is clearly contradictory and illogical to a clear thinking layman, especially to one who shares our deep concern about the rule of man masquerading as the rule of law.

That is also why we will not budge. There is no possibility of reforming psychiatric slavery. The only thing that will do is the abolition of institutional psychiatry, the abolition of involuntary commitment procedures, and the abolition of the insanity defense. Psychiatrists must be kept out of the courtroom. Of course people should be free to engage in contractual and consensual psychiatry. They should be free to believe as they wish, just as people are free to attend the synagogue, church, or mosque of their choice, or to deny the existence of God.

Before I continue, I would like to state something about my relationship with Thomas Szasz, as well as some history regarding related matters. What I want to emphasize is that there are many colleagues of mine, and Tom’s, who think the same way we do about the abolition of institutional psychiatry. When Tom dies, his work and his ideas will not die. There are many people, particularly in academic settings, who have led a very precarious intellectual life saying the same things that Tom has said and written. As we voice our opinions on these and related matters, we could very easily lose our jobs. If you read the introduction I wrote to Szasz Under Fire: The Psychiatric Abolitionist Faces His Critics, you will understand more about what I mean. Some people at the universities I’ve taught at have made my life a living hell, especially when the students want to learn more and more about the ideas Szasz has developed, and that our colleagues have developed as a result of his work.

One thing I’ve always heard from students over the twenty-three years I’ve been teaching is “why haven’t we heard more about these ideas before?” I know many students who dropped their majors in psychology and medicine once they learn about the nonsense masquerading as scholarship in psychiatry and psychology. I’ve received two calls from the White House’s Office of National Drug Control Policy demanding to know what and why I am teaching about the myths of addiction as a treatable disease. I’ve been told by former chairs of my departments that they received phone calls from people at the National Institute of Mental Health again demanding to know why I’m being allowed to teach the ideas you are reading about here. Fortunately I’ve managed to teach thousands and thousands of students over the years, and they have all been extremely grateful to learn about the activities and protocols of institutional psychiatrists.

Tom blazed a trail that will never be erased. He turned the world on its head when he wrote The Myth of Mental Illness and Law, Liberty and Psychiatry. I have always invited leaders in institutional psychiatry as well as the General Counsel from the National Association for the Mentally Ill to come in and tell my students why they think I am not only wrong but dangerous for teaching about how to think about these and related matters. That’s because I do teach my students how to think, not what to think. Yet I find if anything their visits only serve to strengthen students’ convictions regarding the things they’ve learned in my classes.

Too many people have stolen Szasz’s ideas and writings without giving proper credit to him. See my review of James Nolan’s book The Therapeutic State: Justifying Government at Century’s End—a book originally praised by Robert Higgs in The Independent Review some years ago, without a hint of acknowledgement to Szasz’s work, despite the fact that Szasz coined the term the “therapeutic state.” I put a lot of blame on New York University Press for the shoddy editorial work that they did publishing the manuscript. Writers, especially those in academia, have an ethical obligation and responsibility to acknowledge the work done by others writing on the same topic, but NYU Press did nothing.

Far too many people think they are experts on policy regarding persons labeled as mentally ill because they’ve had a family member they were terribly troubled by, someone who may have embarrassed himself and the family by acting in a disturbing fashion, or actually harming himself and/or others. Often families feel terribly guilty for coercing their loved ones into the hands of institutional psychiatrists, knowing full well they are putting them through hell. They try to ease their guilt by saying over and over again that they’ve done the right thing, and by attacking those who try to protect the civil liberties of those treated as less than human beings. One thing that too many people forget is that we don’t have to do something. Letting a person be, especially as an adult, should be our first rule of thumb. Posing the scenario of a person waving a gun in the street is a red herring: When people break the law they should be arrested. They are entitled to due process. They are found guilty or not guilty of a criminal act, and they experience the consequences.

Why do the heathen rage … ?

It seems to me that Dr. Frances and Professor Pustilnik are becoming increasingly and understandably upset. According to Dr. Frances, Sullum and I repeat ourselves. From our point of view, Frances and Pustilnik recommend slavery reform instead of the abolition of slavery. As long as psychiatric slavery reform is proposed in place of abolition, we will always repeat ourselves. Slavery is not freedom. You cannot reform the practice of slavery. You can only abolish it in its entirety.

The heart of the matter remains the premise of legal fiction—the belief that the mind can be diseased just as the brain can be diseased—and what they seek to accomplish via this legal fiction—the circumvention of basic constitutional rights and protections. This is also a battle concerning the rule of law versus the rule of man. There is no due process of law when people are committed to prisons called mental hospitals against their will. Depriving people of liberty in the name of treatment for mental illness is the rule of man. There can be no such thing as a middle ground. Hayek made this clear in The Road to Serfdom; Orwell wrote about doublethink as a way for totalitarians to maintain power and control over people.

According to the advocates of institutional psychiatry, there would appear to be two kinds of human beings. There are the authorities on how to live, that is, the institutional psychiatrists who claim to know who is most likely to harm self and others. These are the Übermenschen, the supermen and superwomen, the people above people, the people above the law. Then there are the Üntermenschen, the people who are metaphorically unconscious, those who lack insight on how to live, the adults called children. The Übermenschen pretend they have magical powers that run contrary to statistical accuracy and prediction. They know the future by intuition. It doesn’t matter to them that no one can determine who is likely to hurt self or others with an accuracy beyond that expected by chance. They believe they alone can tell who is going to commit homicide or suicide, and who is not. It doesn’t matter what pathologists say is a disease, institutional psychiatrists believe they are above pathologists.

Those who support involuntary commitment look down paternalistically on those they consider below the law. They consider the mentally ill who reject treatment to be a different species of human being, the Üntermenschen. Society tends to support them, because scapegoating is always appealing. Scapegoating is a way of expelling evil, a way of affirming the dominant ethic. We’ve seen this movie before; that’s why it seems familiar. It has been repeated throughout history many times, including in the Inquisition.[1]

Yet the Bill of Rights applies equally to all people. It does not state “for whites only.” It does not state “for heterosexuals only.” It does not state “for people designated by institutional psychiatrists as mentally healthy only.” Can anyone be surprised that former mental patients—forcibly injected with drugs, deprived of their freedom, forced to have electricity shot through their brains—sometimes want to kill you and your kind? I don’t see how anyone can be surprised when a former “patient” kills or attacks his psychiatrist. Frankly, I’m surprised it doesn’t happen more often. What we usually hear about in the press is how such a person should have been involuntarily committed to a mental institution earlier in his life.

Myths, Worthless Myths, and Statistics

Like Jacob Sullum, I pointed out the concession that Dr. Frances has made, yet now Frances backpedals furiously, claiming he never said mental illnesses were a myth. They are “bullshit,” apparently, but not “worthless myths!” Res ipsa loquitur.

Professor Pustilnik’s understanding of neuroscience and genetics is so incomplete, and her point about the difference between abstraction and metaphor is so much ado about nothing, that it is difficult for me to know what else to say to her. Think on these things, Professor Pustilnik: We are each genetically programmed to die. Does that mean that life is a disease? What does asymptomatic depression look like? Eye color, skin color, and other traits are genetically determined; does that mean they are the expressions of disease? At least Dr. Frances appears have a crisis in conscience brewing, that’s why he’s getting so upset. Good for him. It’s about time.

If Dr. Frances remembers anything about scientific methodology and statistics, he knows there will never be a discrete variable called behavior that we can correlate in any meaningful way with genes, alleles, and structural and functional brain abnormalities. Brains don’t act; persons do. It takes one person to develop a literal disease such as cancer. It takes at least two people to have a mythical mental illness. Why is that?

When it comes to a variable called behavior, clearly the expression of moral agency, no two people are identical. We cannot generalize findings in one person to another in any meaningful way. If hypothesized abnormal brains cause people to do socially unacceptable things, then it only stands to reason that normal brains cause people to do socially acceptable things, or noble or virtuous ones.

The mechanistic perspective where everything human is reducible to chemical and electrical interaction is the ultimate in the dehumanization of man. We praise and admire virtuous acts because they are expressions of choice. But if we hold that bad acts and bad behaviors are caused by “bad” brains, on the one hand, we must hold that good (healthy) brains cause good behaviors on the other. What then becomes of that represented by the pronoun “I”? What do we mean by the word “person”? The exercise of free choice is precisely what we cherish and admire as human, and it is why we hold people responsible for their behaviors.

In my opinion, this is exactly what Dr. Frances and Professor Pustilnik target as an existential enemy—the exercise of free choice and personal responsibility. It does not matter what their intentions are. The end product of coercion is deprivation of liberty and responsibility. Liberty and responsibility are two sides of the same coin. We cannot decrease one to increase the other. The two are positively related.

The arbitrary exercise of state power, with psychiatrists as agents of the state, runs contrary to the rule of law. It is a prime example of the rule of man. This is also why Thomas Szasz’s writings regarding the structure and function of the therapeutic state, that union of medicine and the state that has come to replace the theocratic state, are so very important. In a theocratic state, the arbitrary imposition of power and coercion is obvious. In the therapeutic state it is difficult for many people to see because it is hidden within a cloud of medico-scientific obscurantism.

Institutional psychiatry can never be reformed. It can only be abolished in its entirety. This is why we are at an impasse here in the conversation. I will not budge, and I imagine Jacob will not budge, either. Any compromise is like being a little bit pregnant. One is either pregnant or one is not. One is either engaged in slavery or one is not. One is either using state-empowered psychiatry to destroy the rule of law, or one is not. There is no middle ground. And this is why Dr. Frances is so terribly wrong when he proposes a “middle ground.” He wants to have it both ways, let the people he chooses to be free be free, and keep imprisoned the people he chooses to imprison.

There is no middle ground with regard to numbers, either. Were it so, we wouldn’t get very upset about “just one lynching.” All it takes is one injustice to count, unless you see people only groups, not as individuals, but as a collective. There is an Israeli saying, at least I know it as an Israeli saying: Save one person and you save the world. Don’t ever think it’s not worth fighting for, when it comes to helping one person being assaulted by the state, especially when that assault by the state is masquerading as medicine.

The New York Times published a letter of mine several years ago about how a jury in North Carolina awarded a huge settlement to a young man who sued his psychiatrist for not warning him that he could end up spending the rest of his life in a mental hospital for shooting two people on the street in downtown Chapel Hill. They published a similar letter by Thomas Szasz on the same day, same page:

When a Killer Blames His Doctor

To the Editor: Why did a jury hold a psychiatrist, Myron B. Liptzin, accountable for Wendell Williamson’s murderous acts (front page, Oct. 10)?

Because psychiatrists invented and perpetuate the myth of mental illness. As long as people believe in mental illness as a cause for behavior, those who receive such a “diagnosis” will be exculpated — and someone else will be culpable.

Since psychiatrists removed the blame, it is only fitting that they should be saddled with it.

JEFFREY A. SCHALER Oct. 10, 1998

If institutional psychiatrists are going to be responsible for removing responsibility for murder, it should come as no surprise they will be increasingly held responsible for their actions. Saying that mind is caused by genetics and neurotransmitters begs the question; life is more complicated than that.

The British philosopher Gilbert Ryle wrote about category errors, or category mistakes. Part of the problem is an error of this type. We cannot use the language of mind, consciousness, and behavior in a way that makes sense when we talk about concrete reality.

Both Dr. Frances and Professor Pustilnik want to make the institutional psychiatric plantation look humane. They want to make it look pretty. They want to reform psychiatric slavery, not abolish it. That means they want to preserve slavery, for abolishing and reforming are two very different acts. Many psychiatrists have stopped playing the game of slave-master, earning a very dishonest living by depriving innocent people of freedom, and disregarding, no, punishing those who don’t want their idea of help. Suicide rates among psychiatrists are second only to those among dentists, last time I checked, and while I cannot come up with a good reason why dentists may be inclined to commit suicide—because it’s so boring?—it’s much easier to come up with accurate explanations for why so many psychiatrists commit suicide. I believe many psychiatrists may realize they’ve made a horribly bad career choice and investment. Look at the difference between an ethical internist, cardiologist, ophthalmologist, dermatologist, and an institutional psychiatrist. What a bad joke to try and compare the two.

Some institutional psychiatrists respond to their enormous mistake by switching careers. Others, as was pointed out about true believers in When Prophecy Fails: A Social and Psychological Study of a Modern Group That Predicted the Destruction of the World by Leon Festinger, Henry W. Riecken and Stanley Schachter (1964), dive more deeply into their delusions, constantly trying to convince themselves and others that they are right. They often try to base their methods on scientific obscurantism.

In my opinion, any psychiatrist who relies on drugs to change the way a person feels—instead of achieving a jointly agreed upon goal with a client through conversation—is simply acknowledging his failure as a skilled psychotherapist. If you’re a therapist writing prescriptions for your clients to change the way they feel, I think you ought to get out of the field of psychiatry. You obviously don’t know what you’re doing when it comes to listening and conversing with clients. Just as there are frauds and charlatans in the free market when it comes to selling any product, there are frauds and charlatans in the practice of consensual/contractual psychotherapy (conversation). Those who advise clients to take antidepressant drugs as well as any other drugs to change the way they feel are failures as psychoanalysts. (Note that by psychoanalyst I do not necessarily mean that in the Freudian or related theory sense.)

It’s the Cultural Context, Stupid!

Note how Islamic terrorists never use an insanity defense when on trial for various crimes, nor do American prosecutors, military or otherwise, try to impose an insanity defense on those Islamic terrorists who claim they are motivated by religious belief. Psychiatric diagnoses are ethnocentric expressions. Imagine a “God-man” in India, wrapped in his prayer shawl, who wanders for years, drinking rain water, eating seeds, if not bird droppings, sitting in meditation for 17 hours a day; or the yogi whose photograph appeared in The New Yorker years ago with about 25 pounds of stones wrapped in rope and suspended from his scrotum and his testicles. Consider another person with his arm extended toward the sky for a year; and another rolling on the ground to a holy spot, from perhaps hundreds of miles away. In that culture, they are ignored, or revered for their devotion and discipline, or described as God “intoxicated.” Those who give them money or food may very well practice or believe in Karma Yoga, or just karma theory—“helping” them gets them a good seat in heaven, according to their beliefs.

Now imagine that same God-man, wrapped in his prayer shawl, walking across the quad at American University here in Washington, D.C. What do you think the response from others might be? From the university’s “public safety” officials? From the Metropolitan Police Department? He is very likely to be handcuffed and taken to a psychiatric facility, and injected with major tranquilizers, especially if he objects to being forced to go anywhere, let alone to a place he does not want to “visit.” The more he objects, the more likely his diagnosis is to be “serious” borderline personality disorder.

This is the point that Dr. Frances and Professor Pustilnik refuse to acknowledge. This is the very crux of the matter. As Sir Karl Popper put it, it is not a matter of finding the best person to be in charge, the best ruler, the best president, king, benevolent dictator, what have you. The really important thing is to recognize that when we let “good” people have power over others, we pave the way for bad people to have power over others. Bad people will always replace good people in power, and when they inherit the power to do harm, that is when we have real trouble on our hands.

In the over twenty years of college teaching I have always noted how students, be they undergraduate, graduate, medical and/or law students who came from a current or former communist, fascist, dictatorial, or socialist state, always err in the direction of being careful when it comes to power and authority given to government. Their perspective makes them wary of creating positions of arbitrary power and then trusting that only good people will fill them.

The late psychologist Theodore Sarbin wrote a terrific article “Toward the Obsolescence of the Schizophrenia Hypothesis,” (The Journal of Mind and Behaviour 11 nos 3–4 Summer and Autumn 1990, pp 259(131)–284. It is one of the clearest indictments of the theory of schizophrenia ever written. Sarbin accurately defined hallucinations as self-reported imaginings. Believing in God or believing in angels are indications that a person is schizophrenic as much as believing in Martians beaming messages to you through the fillings in your teeth. Both are self-reported imaginings, that is, both are hallucinations. The difference is socially constructed, based on prevailing beliefs and values in a given culture or society. This is not a genetic or biological issue. Just because drugs change behavior doesn’t mean that a person needed those drugs. While many people may object to such a comparison on the grounds that it is denigrating to religious believers, one could just as easily say that equating schizophrenia with religious or spiritual belief is just as stigmatizing, if not more so.

Since Dr. Frances brought up the issue of sex offenders being committed to mental hospitals in Kansas following serving time in a penitentiary, readers may be interested in the transcript (pdf) of a debate Thomas Szasz, George J. Alexander and I had with Carla Stovall and two others, challenging her views on Kansas v. Hendricks (1997). Attorney General Stovall argued that persons convicted of sex offenses must be involuntarily committed to mental hospitals after serving prison sentences. Apparently sex offenders such as Mr. Hendricks have the necessary mens rea and actus reus to be found guilty and sentenced to a prison for their crimes. But once Mr. Hendricks served his time, his mens rea mysteriously disappeared. He then became sick because, according to Attorney General Stovall, he couldn’t control his sexual addictions. However, once the Kansas State Supreme Court decision reached the U.S. Supreme Court, Justice Clarence Thomas decided that Hendricks did not make others suffer from his sexual sickness, he made others suffer via sexual molestation because he was mentally abnormal. Thomas was smarter than Stovall: He recognized that if Hendricks was sick, he could never have been found guilty.

Note

[1] See Szasz, T.S. (1970). The manufacture of madness: A Comparative Study of the Inquisition and the Mental Health Movement. New York: Dell.

Editors’ note: DJ Jaffe is the Executive Director of MentalIllnessPolicy.Org. We are pleased to publish his letter below.

Current civil commitment policies protect neither the liberty of persons with mental illness nor the liberty of the public. They have increased government intrusion, increased public costs, and are inhumane. Changing to scientifically based commitment procedures can increase the liberties of individuals with mental illness, increase the liberties of those without mental illness, and help downsize government. Therefore, improving civil commitment laws should be a goal of libertarians.

I have a relative with schizophrenia. Having said that, I agree with Herschel Hardin, a former leader of the British Columbia Civil Liberties Union, who has a son with schizophrenia, the diagnosis commonly found in people subject to civil commitment. He wrote:

The opposition to involuntary committal and treatment betrays a profound misunderstanding of the principle of civil liberties. Medication can free victims from their illness—free them from the Bastille of their psychoses—and restore their dignity, their free will and the meaningful exercise of their liberties.[1]

Because of the inadequacies of our current civil commitment practices, 5,000 individuals with mental illness commit suicide annually.[2] Another 200,000 are homeless.[3] Of course, those are not primary concerns to libertarians, most of whom believe that individuals have a right to kill themselves or live homeless.

Costs of the Status Quo
But as a result of our current restrictive commitment procedures, persons with mental illness kill 1,000 individuals annually, roughly 10% of all homicides.[4] The most likely victims are family members,[5] police, and sheriffs.[6] Take the parents of mentally ill Eric Bellucci in Staten Island. They were so fearful of their son, who had been hospitalized and involuntarily committed multiple times, that they locked him out of the house. So he camped in their yard. They begged to have him civilly committed, but the law required Eric to first become “dangerous.” So he did. On October 13, 2010 he stabbed both his parents. They are dead and Eric will be permanently incarcerated. Hardly a victory for individual liberties.

Other individuals with untreated mental illness kill so many they become famous and earn sobriquets like “Unabomber” Ted Kaczynski and “Fort Bragg Assassin” Aaron Bassler. Their families tried to get them treatment before they became killers. James Holmes, Seung-Hui Cho, and most recently Thomas Caffall each killed innocents and lost their own lives. But civil commitment laws don’t help prevent dangerous behavior, they require it.

Because of restrictive civil commitment laws, individuals with serious mental illness are regularly shot by law enforcement who believe their erratic and irrational behavior is putting their own safety or that of the public in immediate danger.[7] People with severe mental illnesses are killed by police in justifiable homicides at a rate nearly four times greater than the general public.[8] The recently released videos of Kelly Thomas being beaten by police in Fullerton, California[9] and Michigan police shooting Milton Hall are the latest examples.[10]

Another concern of libertarians is that our current system is causing massive incarceration. As Amanda Pustilnik noted, 300,000 individuals with mental illness are now behind bars, due to the inadequacy of civil commitment laws. 15-25% of all prisoners have a mental illness.[11] With reformed civil commitment laws, many may have avoided incarceration. As a result of poor commitment laws, we now have a jail-based system for the most seriously ill. That creates a major drain on local law enforcement.[12] And it is expensive to the corrections system. The Department of Justice estimates that it costs $15 billion to incarcerate the 300,000 mentally ill.[13] That hardly counts as small government.

The lack of better civil commitment standards puts government itself at risk. President Ronald Reagan was shot by mentally ill John Hinckley. President James Garfield was killed by mentally ill Charles Guiteau. Presidents Andrew Jackson and Theodore Roosevelt were shot by persons with mental illness. Congresswoman Gabrielle Giffords was shot by mentally ill Jared Loughner.

Clearly, the status quo is not serving the liberty needs of people with mental illness or the public safety needs of those without. It is also contributing to growth in government. Changes are needed that are grounded in science.

Knowledge about Schizophrenia Needed to Make Informed Changes
Untreated schizophrenia and untreated bipolar disorder are two of the disorders most likely to be represented among civilly committed populations. I’ll limit this discussion to schizophrenia.

Schizophrenia is a real disorder.

Dr. Schaler asserts, “’Mental illness’ generally refers to how certain people behave.” Not exactly. There is not yet a chemical marker that can diagnose schizophrenia. But claiming that schizophrenia doesn’t exist because there is no test is like saying colon cancer didn’t exist before the invention of colonoscopy. Schizophrenia, like Parkinson’s, is diagnosed by analyzing the resultant behavior. For Parkinson’s, the behavior is arm movement. For schizophrenia it is delusional speech and psychotic behavior, among others.

Dr. E. Fuller Torrey collected research proving schizophrenia is a real disorder. Individuals with schizophrenia have enlarged ventricles,[14] a reduced volume of gray matter[15] more neurological abnormalities,[16] more neuropsychological abnormalities,[17] and decreased function of the prefrontal area[18] compared to controls.

Schizophrenia Causes Impaired Thinking
John Stuart Mill’s introduction to On Liberty stated, “It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the “maturity of their faculties.” He was wrong. Some libertarians need reminding.

Science shows some individuals with schizophrenia are not in the “maturity of their faculties.” They don’t always have the faculties to formulate opinions although they almost always retain the ability to speak. Neurocognitive impairment is a core component of schizophrenia and is likely associated with the neurobiology.[19]

In the case of my own sister-in-law, this neurocognitive dysfunction was startling. Before schizophrenia, she was a bright college student. After developing schizophrenia, she became so cognitively impaired that she could not figure out that to change her pants, she had to first take off her shoes, because the pants wouldn’t fit over them.

Schizophrenia also causes individuals to have delusions.[20] John Hinckley shot President Reagan when he was off treatment because he “knew” it was the best way to get a date with Jodi Foster. Russell Eugene Weston Jr. shot two guards at the U.S. Capitol when he was off treatment so that he could find the “Great Safe of the U.S. Senate” where the “ruby satellite control” time reversal system could “sweep him away” to a time when he would not be deceased. When asked if he has a mental illness, he denies it.[21] Rather than being in control of his brain, his brain was in control of him.

Schizophrenia causes some individuals to hallucinate and hear voices. Walk down the street of any major city and you will see psychotic individuals screaming at voices only they can hear. Sometimes these voices command them to do things. Bad things. Being schizophrenic is not an exercise of free will that should be protected. It is a barrier to exercising free will that should be removed.

Schizophrenia prevents some people from even knowing they are ill. Anosognosia is being so sick you don’t know you are sick. It is common in schizophrenia because the brain, the organ charged with insight is impaired.[22] Because it also appears in bipolar disorder, many people have experienced it directly in the grandiose ideation of bipolar friends who are in the midst of an untreated manic stage. “Winning” as Mr. Sheen would say. People with anosognosia can truly believe they found a plan to save the world or that they are the Messiah. Why accept treatment when you’re the Messiah?

Individuals with schizophrenia think differently when treated than untreated. Nowhere is this more apparent than in their attitudes towards civil commitment. While, by definition, 100% of individuals who are civilly committed were opposed to it at the time of commitment, multiple studies show around 80% retrospectively express gratitude.[23]

The proper goal of libertarians should not be to ensure individuals who “lack maturity of their faculties” remain locked in “the Bastille of their psychosis.” Libertarians should work to restore free will and liberties.

Untreated Schizophrenia Is Associated with Higher Incidence of Violence
Nowhere is the debate over civil commitment less informed than when it comes to answering the question “Are people with mental illness more violent than others?”[24] It is largely irrelevant, because civil commitment is not aimed at the 25-40% of Americans some claim have a “diagnosable mental disorder”—your friends on Prozac.

But there is a subset of about 5% who have a very serious and persistent mental illness like schizophrenia.[25] The subset of the 5% group who go off treatment are more likely to become violent than others.[26] This is particularly true when medications that have previously prevented them from becoming psychotic, hospitalized, or violent are stopped. This is the tiny group civil commitment should be designed to help.

We now know that past violence is a good predictor of future violence in individuals with serious mental illness. So is abusing substances. Commitment for seriously mentally ill individuals who have a history of violence or substance abuse should not be as burdensome as commitment for those who don’t.

Medications Reduce Violence in People with Schizophrenia
By reducing hallucinations and delusions, and by restoring “maturity of faculties,” medication reduces violence. This should be readily apparent because almost everyone civilly committed because they were dangerous is eventually released—because they are no longer dangerous. The difference between their pre-commitment state and post-commitment state was the administration of medicines. From a libertarian perspective, it doesn’t make sense to allow someone who is known to need medicines to stay nonviolent to go off medications and become violent. Going off treatment imposes an obligation on the citizenry to pay taxes and expand government so they can be incarcerated. Incident of violence in someone who has mental illness and at the time was compliant with treatment are almost unheard of.

Persons with mental illness who have been stabilized on treatment don’t deteriorate instantly when the treatment is stopped. The medications stay in the blood for a while. As will be seen later, this knowledge opens doors to commitment venues that are less restrictive than inpatient commitment.

What is the current commitment law and how does it work in practice?
Individuals with mental illness are allowed to refuse treatment and cannot be treated in the community system unless they volunteer. For the most seriously ill, this is often an insurmountable hurdle because of their anosognosia, neurocognitive dysfunction, hallucinations, and delusions. Individuals who need the community mental health system the most cannot get in.[27] They are allowed to deteriorate to dangerousness and then become subject to the involuntary commitment system.

But getting into the involuntary system is harder than getting into the voluntary system. In general, many states require individuals to be imminently provably dangerous to self or others.[28] Other standards exist, but they are rarely used and often so narrowly interpreted as to be similar to the “dangerousness” standard. If committed, the individual is confined to a locked ward, which is the most restrictive setting short of incarceration. Once someone no longer meets the standard, he or she is released and free to go off medicines and become dangerous again.

Because the voluntary and involuntary systems are so hard to access, most of the seriously mentally ill who refuse treatment wind up in the criminal justice system with all rights removed. 300,000 are incarcerated, five times as many as are hospitalized. And those incarcerations were likely the result of infringing on someone else’s rights by committing a crime.[29]

Surely there is a better way. Surely this is not what libertarians want to defend.

What Should Be Done?
From a libertarian’s perspective, successful civil commitment reform would use commitment less, use it only when needed, steer individuals away from the most restrictive forms of commitment to less restrictive forms, and place greater reliance on the systems that require the least amount of government. We know how to do that.

The “danger to self” or “parens patraie” commitment standard is the one most likely to be considered problematic by libertarians. But they are presupposing the individual has the cognitive ability to avoid danger to self if he or she wanted. As the previously cited research shows individuals with schizophrenia become a “danger to self” because they develop delusions and hallucinations combined with anosognosia and neurocognitive impairments that prevent them from accessing treatment. While 5,000 mentally ill individuals commit suicide annually, and while libertarians can defend that, many more become dangerous to self by eating out of garbage cans, sleeping on the streets, letting wounds fester, and other activities their dysfunctional brains lack the ability to avoid.

The “danger to others” or “police powers” commitment standard is accepted by almost all, including libertarians. Quoting John Stuart Mill, “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”[30] But Mill doesn’t tell us when to intervene. Should we intervene to prevent harm to others when the hallucinations start, when the person goes off medicines, when the person becomes psychotic again, when the gun is purchased, when the bullet loaded, when the gun is fired, or when the bullet hits its target?

The standard is now interpreted so narrowly that it does not apply until after the bullet is fired. As such it ignores the fact that individuals with serious mental illness may become predictably dangerous long before they become imminently dangerous. Because we prevent intervention until after dangerousness, we have to rely on the most restrictive form of commitment: inpatient commitment.

This fact was underscored to me in a West Virginia case where I recently testified. Linda R. Artimez, Director of the Supreme Court’s Division of Mental Hygiene, stated that while West Virginia allows the placement of individuals who are civilly committed in community settings like group homes, it almost never happens. Why? No judge is going to determine that an individual is “dangerous” and simultaneously put them in anything other than the most restrictive setting: a locked ward.[31]

The Advantages of Adding Other Standards for Commitment
Preventing the mass civil commitment and incarceration of people with mental illness requires lowering the commitment hurdle to something below imminently, provably dangerous. Lowering the hurdle would shorten commitments because the longer that treatment is delayed, the longer it takes to stabilize and restore the “maturity of their faculties.”[32] Lowering the commitment standard would also allow use of less onerous forms of commitment like outpatient treatment.

Libertarians may object, fearing that more people will have their rights removed. That is not true. The failure to use a lower standard results in 300,000 people having all their rights removed via incarceration and almost everyone who is committed, being committed to a locked ward.

Libertarians may point to abuse of civil commitment in Stalinist Russia or the United States. Those were due to the inefficacy of treatments and the lack of due process. Treatments are better now[33] and obviously all civil commitment systems need to include vigorous due process protections including independent administrative or judicial review; access to representation; and the ability to submit evidence, question witnesses, appeal decisions, and file habeas petitions. Maintaining strict due process does not increase the size of government. Commitment process uses fewer judicial and legal resources than incarceration. It’s not just a wash, it’s a net savings.[34]

Other Standards That Should Be Used
Once we understand that treatment can prevent violence in those prone to it and that the “choice” to go off medications is not being made of free will but because the brain is impaired, the libertarian objective should be to restore free will, not stand back so violence can occur.

Many standards accomplish that. A “grave disability” standard allows intervention when a seriously mentally ill person becomes “substantially unable, except for reasons of indigence, to provide for any of his or her basic needs, such as food, clothing, shelter, health or safety.” Few libertarians would let someone with Alzheimer’s or developmental disabilities go without treatment simply because they can’t fend for themselves. We should take the same position towards people with schizophrenia.

The “capacity standard” allows intervention when someone as a result of their “serious mental illness is unable to fully understand or lacks judgment to make an informed decision regarding his or her need for treatment, care or supervision.” This is the “lacks maturity of faculties” standard. If someone “due to mental illness, is unable to understand the advantages, disadvantages, or alternatives to a particular treatment, or is unable or unwilling to apply them to his or her situation and requires such treatment to prevent severe mental, emotional, or physical harm”[35] they too “lack the maturity of faculties” and libertarians should not object to their treatment.

By using these lower standards we can intercede with people who are likely to become violent, lose their own liberty, and infringe on the liberties of others or lose their own life due to their illness. By using civil commitment to restore free will, we can prevent massive incarceration of people with mental illness and the resulting bloating of government courts and corrections systems. We can send people to less restrictive forms of commitment, reduce the time in commitment and do a better job protecting the public. In other words, achieve libertarian objectives.

Use Less Restrictive Forms of Commitment
Some alternatives to inpatient commitment, in order from most restrictive to least restrictive, are guardianship, parole or conditional discharge from hospital after involuntary commitment, and Assisted Outpatient Treatment (AOT).

Guardianship procedures allow courts to assign someone else to make all decisions for the person appointed a guardian. He or she is in essence committed to following the guardian’s instructions, which could include staying in treatment. It is very intrusive, but unlike commitment to a locked ward or incarceration, it does allow community living. It is less expensive than incarceration or hospitalization and requires no expansion of government. Guardianship is used most frequently for those who have Alzheimer’s or developmental disabilities. Persons with serious mental illness would rarely need something this restrictive, but the lack of it sends people to something much more intrusive, restrictive, and expensive—like incarceration or inpatient commitment.

Parole and conditional discharge from a hospital after involuntary confinement allow individuals to leave locked facilities—jails and hospitals—and live in the community as long as they meet certain conditions. For mentally ill parolees, conditions could include the requirement to stay in violence-preventing treatment. Likewise, rather than releasing a mentally ill individual from involuntary commitment and allowing the individual to go off treatment again, we could release them with the requirement they stay in treatment. It is not overly expensive and allows individuals to maintain almost all their rights with very little government intrusion except in the narrow area where there is a community interest. Both should be used more frequently.

Assisted Outpatient Treatment is the new kid on the block and the most important and useful. Forty-two states have Assisted Outpatient Treatment (AOT), but no state uses it sufficiently. AOT is a court order to stay in treatment as a condition for living in the community. It is usually limited to those who have a past history of at least two incarcerations, involuntary commitments, or needless hospitalizations.[36] It is palatable to libertarians because it is only used after unfettered liberty has proven unsuccessful. The patient is monitored in the community and can be put in an inpatient setting if they fail in the outpatient setting.[37]

AOT furthers the libertarian goal of preventing people from being sent to more restrictive environments. Research on individuals treated under New York State’s AOT law, called “Kendra’s Law” found 83% fewer were arrested, 87% fewer were incarcerated, 77% fewer experienced psychiatric hospitalization, and length of hospitalization was reduced 56%.[38] In California, where AOT is called “Laura’s Law,” it cut incarceration 67% in one county and 78% in another. AOT cut hospitalization 46% and 86% in the same counties.[39]

AOT helps further the libertarian goal of preventing persons with mental illness from infringing on the liberties of others. In New York, after enrollment in Kendra’s Law, 46% fewer damaged or destroyed property and 43% fewer threatened physical harm to others. Patients who were more violent to begin with were nevertheless four times less likely to perpetrate serious violence after undergoing treatment.[40] The odds of arrest for a violent offense were 8.61 times greater before AOT than they were in the period during and shortly after AOT.[41]

AOT furthers the libertarian goal of keeping government small. In California, it saved $1.81 for every dollar spent. In New York, where approximately 1,800 individuals are under AOT it has been estimated to save $73,800,000 in incarceration costs and $36,000,000 in hospitalization costs for a total of $109,800,000.[42] Libertarians should support use of these less restrictive commitment venues.

Conclusion
Current civil commitment practices fail to result in the libertarian objective of having fewer individuals incarcerated, public safety protected, and government growth restrained. Using lower commitment standards combined with less restrictive treatment venues can reduce the number incarcerated, shorten length of commitments, improve safety of the citizenry, and reduce the size of government. Reforming civil commitment practices can free people with serious mental illness “from the Bastille of their psychoses—and restore their dignity, their free will and the meaningful exercise of their liberties.” There is a strong libertarian rationale for reforming civil commitment laws.

DJ Jaffe
Executive Director
Mental Illness Policy Org
http://mentalillnesspolicy.org

Notes
[1] Hardin, Herschel. “Uncivil Liberties” Vancouver Sun. July 22, 1993.
[2] http://mentalillnesspolicy.org/consequences/suicide.html
[3] http://mentalillnesspolicy.org/consequences/homeless-mentally-ill.html
[4] http://mentalillnesspolicy.org/consequences/1000-homicides.html
[5] Of spouses killed by a spouse, 12.3 percent of defendants had a history of untreated mental illness; of children killed by a parent, 15.8 percent of defendants had a history of untreated mental illness; of parents killed by children, 25.1 percent of defendants had a history of untreated mental illness; and of siblings killed by sibling, 17.3 percent of defendants had a history of untreated mental illness. 1994 Department of Justice Statistics Special Report, “Murder in Families.”
[6] http://mentalillnesspolicy.org/crimjust/120LEOSkilledbyMentallyIll.htm
[7] The Treatment Advocacy Center runs a fascinating online database called “Preventable Tragedies” that documents mentally ill who have been shot by police or become violent to others.
[8] See this research on officers shooting persons with mental illness.
[9] http://www.youtube.com/watch?v=Ku42PPzYEqs
[10] http://www.cnn.com/2012/08/16/us/michigan-police-shooting/index.html
[11] Here is a summary of studies of incarcerated mentally ill.
[12] Michael C. Biasotti, VP, New York State Chiefs of Police “Management of the Severely Mentally Ill and its Effects on Homeland Security” Naval Postgraduate School. 2011.
[13] Department of Justice Source Book on Criminal Justice Statistics (1996). $15 billion is based on an estimated cost of $50,000 per ill inmate per year, and 300,000 individuals with serious mental illness incarcerated.
[14] Van Horn, J.D., and McManus, I.C. (1992). “Ventricular Enlargement in Schizophrenia. A Meta-Analysis of Studies of the Ventricle:Brain Ratio (VBR).” British Journal of Psychiatry 160, 687–97; Soares, J.C., and Mann, J.J. (1997). “The Anatomy of Mood Disorders: Review of Structural Neuroimaging Studies.” Biological Psychiatry 41, 86–106; 
Elkis, H., Friedman, L., Wise, A. et. al. (1995) “Meta-Analyses of Studies of Ventricular Enlargement and Cortical Sulcal Prominence in Mood Disorders. Comparisons with Controls or Patients with Schizophrenia.” Archives of General Psychiatry 52, 735–46.

[15] Lawrie, S.M, and Abukmeil, S.S. (1998) “Brain Abnormality in Schizophrenia: A Systematic and Quantitative Review of Volumetric Magnetic Resonance Imaging Studies.” British Journal of Psychiatry 172, 110–20.

[16] Schroder, J. et. al. (1992). “Neurological Soft Signs in Schizophrenia.” Schizophrenia Research 6, 25–30.
[17] Torrey, E.F. et. al. (1994). Schizophrenia and Manic-Depressive Disorder. New York: Basic Books: 127, 176-7 (1994); Goldberg, T.E., and Gold, J.M. (1995) “Neurocognitive Functioning in Patients with Schizophrenia: an Overview.” In: Bloom, F.E. and Kupfer, D.J. (eds). Psychopharmacology: The Fourth Generation of Progress. New York: Raven Press; Hoff, A.L., Shukla, S., Aronson, T. et. al. (1990). “Failure to Differentiate Bipolar Disorder from Schizophrenia on Measures of Neuropsychological Function.” Schizophrenia Research 3, 253–60; Morice, R. (1990). “Cognitive Inflexibility and Pre-Frontal Dysfunction in Schizophrenia and Mania.” British Journal of Psychiatry 157, 50–4; Berman, K.F., and Weinberger, D.F. (1991). “Functional Localization in the Brain in Schizophrenia.” In: Tasman, A. and Goldfinger, S. (eds.). Review of Psychiatry vol. 10. Washington, D.C.: American Psychiatric Press, 24–59.

[18] Andreasen, N.C., et. al. (1992). “Hypofrontality in Neuroleptic-Naive Patients and in Patients with Chronic Schizophrenia.” Archives of General Psychiatry 49, 943–58.
[19] Goldberg TE, Ragland JD, Torrey EF et al. “Neuropsychological Assessment of Monozygotic Twins Discordant for Schizophrenia.” Archives of General Psychiatry 47 (1990): 1066-1072; Goldberg TE, Gold JM. “Neurocognitive Functioning in Patients with Schizophrenia: an Overview.” In FE Bloom and DJ Kupfer (eds.), Psychopharmacology: The Fourth Generation of Progress, New York: Raven Press, 1995, pp. 1245-1257; Gourovitch M, Goldberg TE. “Cognitive Deficits in Schizophrenia: Attention, Executive Function, Memory and Language Processing.” In C. Pantelis, H. E. Nelson, and T. R. E. Barnes (eds.), Schizophrenia: A Neuropsychological Perspective, New York: John Wiley, 1996;
[20] “What are the symptoms of Schizophrenia,” National Institute of Mental Health.
[21] Torrey, Fuller, MD. “Bazelon Center is Wrong – Weston and Goldstein Refused Treatment and Services.”
[22] A collection of anosognosia research at MentalIllnessPolicy.org.
[23] A summary of some of the research on involuntary medication and Assisted Outpatient Treatment at MentalIllnessPolicy.org.
[24] Satel, S. and Jaffe, DJ, “Violent Fantasies” National Review July 20, 1998, pp. 36-37.
[25] National Institute of Mental Health.
[26] A two summaries of the research can be found at MentalIllnessPolicy.org.
[27] Interestingly, from a libertarian perspective, this means the mental health system is treating all others. It prioritizes the least ill and sends the most seriously ill to jails, prisons, shelters, and morgues. This has caused a giant and wasteful mental health industry that rather than serving a core state function of helping those who can’t help themselves, is instead, helping all others. See DJ Jaffe, “Mental Health Kills Mentally Ill,” Huffington Post, January 10, 2010.
[28] O’Connor v. Donaldson, 422 U.S. 563 (1975) and others.
[29] Admittedly, some may be what libertarians call ‘victimless’ crimes like possession of narcotics, prohibited pornography, soliciting a prostitute and others.
[30] John Stuart Mill. On Liberty, 1859.
[31] Testimony given at meeting of West Virginia Subcommittee C of the Joint Judiciary Committee August 13, 2012.
[32] There have been at least ten studies on delayed treatment leading to poorer prognosis.
[33] All treatments have side effects. All decisions involving treatment, voluntary or not, should balance these side-effects against the efficacy of the treatment.
[34] When Nevada County, CA recently introduced Assisted Outpatient Treatment, they found “County counsel cost is minimal…. Public Defender cost varies, but there would likely be few new or additional costs, because these same individuals would need representation in Criminal Court, Mental Health Court, or Adult Drug Court, if not being dealt with in (outpatient commitment) Court. (Michael Heggarty, Nevada County Behavioral Health, Carol Stanchfield, Turning Point Providence Center, Honorable Judge Thomas Anderson, Nevada County Superior Court. “Assisted Outpatient Treatment in California: Funding Strategies” February 7, 2012.
[35] 1995 Wisconsin Act 292 51.15 (1) (a) (5).
[36] See NYS Mental Hygiene Law § 9.60 (c); CA WIC, Article 9 5346(a) or Treatment Advocacy Center model law.
[37] Many people have questions about how monitoring is accomplished. We already monitor those in the parole system and those with TB living in the community. Likewise we have teams of social workers who monitor the non dangerous mentally ill. There are many feasible existing ways to accomplish monitoring. At minimum, a family member or significant other, or community member could report the reemergence of symptoms to a doctor, social worker, psychiatric nurse, law enforcement officer or other person who could determine if the person needs to be brought to a hospital for evaluation. Assertive Community Treatment (ACT) teams can also be used.
[38] A summary of studies on Kendra’s Law.
[39] Michael Heggarty, Behavioral Health Director, Nevada County. “The Nevada County Experience,” Nov. 15, 2011; County of Los Angeles. “Outpatient Treatment Program Outcomes Report” April 1, 2010 – December 31, 2010.
[40] Phelan JC, Sinkewicz M, Castille DM, Huz S, Muenzenmaier K, Link BG. “Effectiveness and Outcomes of Assisted Outpatient Treatment in New York State.” Psychiatric Services 61. No 5 February 2010.
[41] Bruce G. Link, Ph.D., et. al. “Arrest Outcomes Associated With Outpatient Commitment in New York State.” Psychiatric Services. May 2011.
[42] Savings calculation at KendrasLaw.org.

Editors’ note: Ronald Pies is a Clinical Professor of Psychiatry at Tufts University. We are pleased to publish his letter below.

I have followed the exchanges on psychiatric classification at Cato Unbound with great interest, as this is an area of study that has occupied me for over thirty years. In his remarks on the nature of “disease,” Prof. Jeffrey Schaler makes claims regarding pathology textbooks that are, at best, simplistic and misleading; at worst, they are transparent falsehoods that have been repeated without foundation for many years. Indeed, I brought this to Prof. Schaler’s attention several years ago when I sent him my paper on schizophrenia and how this illness is represented in various non-psychiatric medical texts.[1] Prof. Schaler claims that “Pathologists do not include mental illness in standard textbooks on pathology” and that “Mental illness is not included in standard textbooks on pathology because it refers to behavior, not cellular pathology.”

One of Prof. Schaler’s premises seems to be that the only valid medical texts on “disease” are pathology texts. Most physicians would dispute this. Prof. Schaler omits discussion, for example, of numerous books on general medicine or internal medicine that recognize the reality of conditions like schizophrenia and bipolar disorder and discuss them at length. Furthermore, many pathology texts omit references to, for example, migraine headache. This is widely recognized as a neurological disorder, even though its “cellular pathology” is poorly understood.

Let’s begin with Boyd’s Introduction to the Study of Disease, Eleventh Edition, published in 1992.[2] The author, Dr. Huntington Sheldon, was at the time a professor of pathology at McGill University. Dr. Sheldon classifies schizophrenia under the rubric of “functional disorders.” He goes on to argue that schizophrenia “…might be regarded as a cancer of the mind, gnawing into the very soul of the patient.” Now, those who believe that schizophrenia is only a “metaphorical” disease may dismiss Sheldon’s vivid description as mere poetic imagery—not the stuff of hard science. Yet Sheldon goes on to note the beneficial effects of hemodialysis in “a small group of schizophrenics,” leading him to hypothesize that there may be “a biochemical substance… that directly affects the ordered functioning of the central nervous system” in schizophrenia. Clearly, for this pathologist, schizophrenia is no mere “metaphorical” illness.

Almost a decade after Dr. Sheldon wrote this, we find another discussion of schizophrenia in the textbook Biology of Disease, Second Edition, by Phillips, Murray, and Kirk.[3] Although this is arguably not a “standard” textbook on pathology (it also encompasses elements of clinical medicine), Dr. Murray was then in the department of pathology at the University of Birmingham, United Kingdom. All told, there are seven pages in the text that deal with schizophrenia. Schizophrenia is considered in detail in the chapter entitled “Psychological and social aspects of disease.” Phillips et al., observe that “A variety of clinical investigations and imaging techniques… have revealed a number of interesting findings [in schizophrenia], including evidence of cerebral atrophy, left temporal lobe dysfunction, [and] evidence of neuronal loss and disorganization.”

The Phillips et al text goes on to note that the significance of the “inconsistent” pathological findings in schizophrenia are “a matter of current speculation,” however there follows a critically important statement: “the biology of this disease is as yet poorly understood.” [emphasis added]

Now, critics of psychiatric diagnosis may rush to seize upon the words “poorly understood”—but that would be a serious philosophical error. The biology of many diseases, including some types of cancer, is “poorly understood.” The critical words are “this disease.” There is simply no question that the authors of the text view schizophrenia as a disease—and that this classification is not dependent on our having a full understanding of schizophrenia’s biology.

As Dr. Allen Frances points out, schizophrenia is probably a final common pathway for many different pathophysiological processes; my point here is that psychiatrists are far from alone in using the term “disease” in reference to schizophrenia. Other references to schizophrenia may be found in standard pathology texts, such as the Oxford Textbook of Pathology.[4] But the coup de grace for the claim that pathology texts don’t recognize schizophrenia is delivered by the 1997 textbook The Neuropathology of Dementia, edited by Esiri and Morris,[5] in which 20 pages of text discuss the neuropathology of schizophrenia. Moreover, since that text’s publication, hundreds of controlled studies of the neuropathology of schizophrenia have appeared in peer-reviewed journals and are converging on several consistent biological abnormalities. References to these will be made available on request.

Prof. Schaler and others may continue to ignore these patently non-metaphorical references to schizophrenia, just as they ignore the intense suffering and incapacity of those diagnosed with schizophrenia and other instantiations of disease (dis-ease). But a priori arguments and linguistic analyses of supposed “metaphors” reveal the intentional properties of language, not the psychological and neurological properties of human beings. Facts about language are not facts about human illnesses. To assert otherwise is to commit a form of what philosophers call “the intentional fallacy.”[6] The facts of human suffering will continue to assert themselves quite stubbornly, and physicians of several medical specialties will continue to recognize and treat the painful reality of psychiatric illness.

Ronald Pies, MD

Professor of Psychiatry, Lecturer on Bioethics & Humanities,

SUNY Upstate Medical University, Syracuse, New York

Clinical Professor of Psychiatry

Tufts University School of Medicine, Boston, Massachusetts

Notes

[1] Pies, R. “Psychiatric Diagnosis and the Pathologist’s View of Schizophrenia” Psychiatry (Edgmont). 2008 Jul;5(7):62-5.

[2] Sheldon H. Boyd’s Introduction to the Study of Disease, Eleventh Edition. Philadelphia, PA: Lea & Febiger, 1992.

[3] Phillips J. In: Biology of Disease, Second Edition. Murray PG, Kirk P, editors. Hoboken, NJ: Wiley-Blackwell, 2001.

[4] Talmud PJ, Humphries S. “Molecular genetic analysis of coronary artery disease.” In McGee JO, Isaacson PG, Wright NA, Dick HM, editors. Oxford Textbook of Pathology Volume 1: Principles of Pathology. Oxford Medical Publications, 1992.

[5] Esri MM, Morris JH, editors. The Neuropathology of Dementia. Cambridge: Cambridge University Press, 1997.

[6] Pies R. “On Myths and Countermyths: More on Szaszian Fallacies.” Arch Gen Psychiatry. 1979 Feb;36(2):139-44.

Editors’ note: Raymond Raad, M.D., is a psychiatrist in training and has previously published with the Cato Institute. We are pleased to publish his letter below.

I have followed with great interest the discussion thus far on Cato Unbound. However, it seems to me that the central question of whether the coercive practices of psychiatry are defensible has inappropriately been linked to whether psychiatric diagnoses are valid at all. Although Professor Schaler and Mr. Sullum assume that the former follows from the latter, and the other discussants follow suit, I fail to see the necessary connection.

We have come a long way from the 1960s and 70s, when a psychiatric diagnosis by itself justified involuntary hospitalization. This is partly due to writers such as Thomas Szasz and partly due to a realization among many psychiatrists, judges, and others that diagnosis and inability to make one’s own decisions are different issues. Today, the vast majority of individuals who meet criteria for a disorder in the DSM would not meet criteria for involuntary hospitalization, and no one to my knowledge argues that they should. Further, if reliable histologic markers of, say, schizophrenia and bipolar disorders were found next year, it’s not clear that more (or any) coercive measures would be justified or follow as a result. Nor would it likely help determine which patients with schizophrenia should be involuntarily hospitalized and which should not.

A good example is multiple sclerosis, which can be diagnosed reliably with an MRI (in addition to a medical interview and exam). Yet it’s not clear how that helps us decide what to do when a patient with multiple sclerosis has impaired cognition or has a suicide plan. Jacob Sullum says that court-appointed guardians for multiple sclerosis are justified when that disease has “so impaired someone’s mental faculties that he is no longer capable of managing his own affairs.” Yet the MRI and the diagnosis do not make the decision as to whether the patient can manage his own affairs. That decision is made by assessing whether the patient understands the nature and effect of his actions, on the basis of an interview and discussion – a technique and standard that was developed independently of the diagnosis of multiple sclerosis and can be equally applied to those with or without psychiatric diagnoses.

Conversely, the lack of a reliable diagnostic blood test for schizophrenia does not invalidate the question of what is to be done about those people who are brought to psychiatric emergency rooms and who are too cognitively impaired to make even basic decisions or are imminently dangerous to themselves or others. The determination of imminent dangerousness is most often made on the basis of recent behavior, not on the basis of a diagnosis (although the diagnosis may aid in the decision at times). For example, individuals may be brought to hospitals after being caught making suicide plans, or suicide attempts, or after violent episodes in their homes. If their medical tests are normal, and if we do not regard psychiatric diagnoses to be valid, the question still remains as to what to do with them. Perhaps the answer is to hospitalize them, or to send them all to jail, or to send them back home and wait until they either commit suicide or harm others before acting. Either way, this is a question that has to be addressed because these situations do exist, and hospitals face them every day.

The justifiability of psychiatric coercion is a difficult scientific-legal question that involves a number of considerations, including the extent of peoples’ rights, the mechanisms of the brain and mind, the principle that past behavior predicts future behavior (to an extent), and others. Libertarians have an important role to play in defending the individual rights of psychiatric patients. However it does not help to reduce the issue to a question of the validity of psychiatric diagnoses, because that both trivializes the problem and harms patients.

Invalidating psychiatric diagnoses invalidates not only involuntary treatment, but consensual psychiatry as well, which both Professor Schaler and Jacob Sullum seem to support. Without concepts like schizophrenia, bipolar disorders, depression, etc, psychiatrists cannot classify patients, perform research to determine what treatments work, and treat patients accordingly. This would be a shame, since the vast majority of psychiatric treatment today is voluntary.

Editors’ Note: Rael Jean Isaac is co-author (with Virginia Armat) of Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally Ill, Free Press, 1990. We are pleased to publish her letter here.

For decades Cato has remained attached to the ideas of Thomas Szasz, most recently recycled in the essay by Szasz acolyte Jeffrey Schaler in Cato Unbound. The notion that there is no such thing as mental illness is not a “big picture” or a profound idea but a foolish one, and Cato discredits itself by clinging to it. It is deeply ironic that it should be left to D.J. Jaffe, whose politically liberal beliefs are diametrically opposed to those of Cato (and to my own), to explain to Cato what a libertarian approach to mental illness should be, given libertarian principles and the realities of mental illness. Indeed Jacob Sullum concedes as much: were these diseases, Sullum agrees, Jaffe’s suggestions would make sense for libertarians.

On what do Szasz and followers like Schaler and Sullum base their claim that mental illness does not exist? It’s on rhetorical sleight of hand. To quote Szasz (and Schaler echoes him to such an extent that it makes sense to go to the source): “Mental illnesses do not exist; indeed they cannot exist, because the mind is not a bodily part or bodily organ.”[1] As one of his critics has aptly observed, Szasz seems to think words can create and destroy, a belief in “word magic” that one usually loses at the age of two.[2] For of course what is diseased in “mental illness” is the brain, which is as susceptible to malfunction as any other bodily organ.

Schaler, echoing Szasz, tries to dispose of mental illness as brain diseases by arguing that they do not appear in pathology textbooks. Ronald Pies has torn apart this argument in his letter to Cato Unbound, so there is no need to repeat what he says here. In his letter, D.J. Jaffe reports on the advances in brain imagery that have shown differences in the brain between mentally ill and normal individuals, such as enlarged ventricles and decreased functioning of the prefrontal area.

The notion that mental illness does not exist, which Szasz first advanced in the 1950s, would normally have remained a fringe curiosity. The reason it didn’t–and this should give Cato pause—is that the idea was taken up by the counter-culture and political radicals of the 1960s. The mentally ill became a group to be “liberated” along with blacks, Hispanics and Third World peoples. The mentally ill were an especially attractive cause because they were imprisoned, not in the invisible institutional complexes of law and custom, but in the concrete brick and mortar of the asylum. While many have noted the radical egalitarianism of the adversary culture, what escaped notice is the way that denial of mental illness dissolved the most fundamental distinction of all: that between sanity and madness. For the most radical claim of the left was that all realities were equal. Indeed some countercultural intellectuals went so far as to invert the consensual order. The mad were sane, the sane mad. After all the mad rejected the unacceptable, irrational reality of a rotten social system, while those called sane conformed to the sick values of the culture.[3]

The upshot was that a literally mad idea—the bizarre conceit that the ancient, ongoing and universal scourge of mental illness did not in fact exist—became the foundation of public policy. Legislators and lawyers emptied state mental hospitals. As readers of Amanda Pustilnik’s contribution already know, their role has been taken over by jails and prisons. Involuntary commitment became contingent on imminent dangerousness and even then treatment was uncertain because the law instituted a right to refuse treatment, which could be exercised even after commitment.

These developments have wreaked untold havoc on the lives of the mentally ill, who have been left, in psychiatrist Darrold Treffert’s famous phrase, to die with their rights on. It has devastated families who have been forced to watch those they love deteriorate and are helpless to obtain treatment for them. Szasz recognized what the impact on families would be and, with typical hard-heartedness, shrugged it off. Families, says Szasz, have three options: they can beg the individual to change his behavior, sever the relationship, or enlist psychiatric help to obtain involuntary commitment. This last, says Szasz, “ensures the maintenance of family relationships, loyalties, and responsibilities as positive moral values.”[4]

Szasz’s first option is (to use his favorite word) a myth. A mentally ill person cannot alter his behavior on command for he is a prisoner of his aberrant mental processes. The third option has largely been taken away. That leaves the second option and in many cases the family does indeed eventually withdraw, even flee from their mentally ill relative, whom they may physically fear. It is often these people, untreated and without family anchor, who engage in the random violence that makes headlines. More frequently, families reluctantly pursue what has become a fourth option, becoming a mini-institution. Only this staff is without shifts, without backup, without the ability to enforce daily routines or medication compliance.

Szasz asks: “Which should we prefer, the integrity of the family or the autonomy of the individual?” (Italics in original)[5] For Szasz the choice is easy. He declares “Autonomy is my religion.”[6] This emphasis on human autonomy is doubtless the source of the appeal of his ideas for Cato. But however ideologically inconvenient, the fact is that the mentally ill do not possess autonomy as Szasz himself defines it: “[Autonomy is] freedom to develop one’s self—to increase one’s knowledge, improve one’s skills, and achieve responsibility for one’s conduct. And it is freedom to lead one’s own life, to choose among alternative courses of action so long as no injury to others results.” But the mentally ill possess none of these freedoms as long as they are confined in the terrible prison of psychosis. The irony is that it is medications that can restore the individual’s autonomy, his ability to make choices in any meaningful sense.

What will it take for Cato to wake up from its own delusions regarding mental illness? In mental illness rational arguments are helpless to change distorted thinking. Let’s hope that does not prove to be the case with Cato, whose positions on so many issues are a model of intelligence and clarity.

Notes

[1] Thomas Szasz, The Therapeutic State, Buffalo: Prometheus Books, 1984, p. 15.

[2] Richard E. Vatz and Lee S. Weinberg, eds., Thomas Szasz: Primary Values and Major Contentions, Buffalo: Prometheus Books, 1983, p. 199.

[3] Rael Jean Isaac and Virginia Armat, Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally Ill New York, The Free Press, 1980, pp. 25-26.

[4] Thomas Szasz, Law, Liberty and Psychiatry, New York: Macmillan, 1963, pp. 153-4.

[5] Ibid., p. 154.

[6] Ibid.