Refusing Care: Forced Treatment and the Rights of the Mentally Ill

by Elyn R. Saks

It has been said that how a society treats its least well-off members speaks volumes about its humanity. If so, our treatment of the mentally ill suggests that American society is swinging between overintervention and utter neglect, we sometimes force extreme treatments on those who do not want them, and at other times discharge mentally ill patients who do want treatment without providing adequate resources for their care in the community.

Focusing on overinterventionist approaches, Refusing Care explores when, if ever, the mentally ill should be treated against their will. Basing her analysis on case and empirical studies, Elyn R. Saks explores dilemmas raised by forced treatment in three contexts—civil commitment (forced hospitalization for noncriminals), medication, and seclusion and restraints. Saks argues that the best way to solve each of these dilemmas is, paradoxically, to be both more protective of individual autonomy and more paternalistic than current law calls for. For instance, while Saks advocates relaxing the standards for first commitment after a psychotic episode, she also would prohibit extreme mechanical restraints (such as tying someone spread-eagled to a bed). Finally, because of the often extreme prejudice against the mentally ill in American society, Saks proposes standards that, as much as possible, should apply equally to non-mentally ill and mentally ill people alike.

Mental health professionals, lawyers, disability rights activists, and anyone who wants to learn more about the way the mentally ill are treated—and ought to be treated—in the United States should read Refusing Care .

Genres: Mental Health, Nonfiction, Medicine, Law, Reference, Social Work, Mental Illness

314 pages, Hardcover

First published December 1, 2002

About the author

Elyn R. Saks, training to be a psychoanalyst, specializes in mental health law, criminal law, and children and the law. Her recent research focused on ethical dimensions of psychiatric research and forced treatment of the mentally ill. She teaches Mental Health Law, Mental Health Law and the Criminal Justice System, and Advanced Family Law: The Rights and Interests of Children. She also teaches at the Institute of Psychiatry and the Law at the Keck School of Medicine at USC and is an adjunct professor of psychiatry at the University of California, San Diego. In her capacity as associate dean, Dean Saks oversees research and grants at USC Law.

Dean Saks recently published The Center Cannot Hold: My Journey Through Madness (Hyperion, 2007), a memoir about her struggles and successes with schizophrenia and acute psychosis. Other publications include Refusing Care: Forced Treatment and the Rights of the Mentally Ill (University of Chicago Press, 2002), Interpreting Interpretation: The Limits of Hermeneutic Psychoanalysis (Yale University Press, 1999), and Jekyll on Trial: Multiple Personality Disorder and Criminal Law (with Stephen H. Behnke, New York University Press, 1997).

Before joining the USC Law faculty in 1989, Dean Saks was an attorney in Connecticut and instructor at the University of Bridgeport School of Law. She graduated summa cum laude from Vanderbilt University before earning her master of letters from Oxford University and her J.D. from Yale Law School, where she also edited the Yale Law Journal. She is a member of Phi Beta Kappa; an affiliate member of the American Psychoanalytic Association; a board member of Mental Health Advocacy Services; and a member of the Los Angeles Psychoanalytic Foundation, Robert J. Stoller Foundation, and American Law Institute. Dean Saks won both the Associate’s Award for Creativity in Research and Scholarship and the Phi Kappa Phi Faculty Recognition Award in 2004.

Reviews

[jo · Rating 3 out of 5]

i didn't read the whole thing but, well, saks is obviously exceptionally bright, and she writes in a really approachable way. she writes sort of philosophically, if you are familiar with the analytic tradition, going through various scenarios and possible objections, covering all the possibilities, and it gets a bit tiring. but it's okay, it's interesting. at the end, though, she does allow for some coercion, not very much but some, and i am not a fan of coercion, none at all, period. it must be said that in her scenarios the coercion happens in a sort of best possible world, i.e. a world in which psych hospitals are nice, good, humane places (which they aren't). in her TED talk she slams both psych hospitals and coercion, no, she slams violence, and i wonder whether that's an evolution (there're about 10 years between this book and her TED talk) or whether the "violence" she descries in the TED talk is not the coercion she accepts in this book.

all in all, though, i wish this were a passionate defense of the autonomy of people suffering from mental pain, and a description of what needs to occur for everyone to be safe and well cared for -- and it isn't. but then she's not a passionate writer. she's a methodical, analytical, dispassionate, almost detached writer, so, well, this is the kind of book she wrote.

[l · Rating 2 out of 5]

It's a difficult issue. Saks is in favour of some degree of coercion and though I understand why she takes the position that she does (personally, I don't believe in any form of treatment without consent, and I'm hypothetically in favour of removing the question of 'competency' from patient decision-making altogether but I recognize that some people who suffer from mental illnesses may feel differently as this position essentially leaves patients with major mental illnesses to 'rot with their rights on' and may be seen as being tone-deaf), her arguments aren't entirely sound.

Most importantly, I think Saks misrepresents the conflict between doctors and lawyers on the refusal of treatment by patients with mental illnesses. She presents both sides as being equally flawed - lawyers don't recognize the value of medicine (Saks actually spends a number of pages explaining that contrary to what lawyers supposedly believe, anti-psychotic medication is not 'mind-controlling' but 'mind-altering'; Saks has obviously been working in this area for a long time so maybe I'm wrong about this but I'm pretty sure lawyers can draw that distinction for themselves...) and doctors don't recognize the importance of patient rights. I find this a bit of an absurd position because lawyers are hired, as Saks acknowledges, to advocate for their client. In doing so, and in taking a position against the patient's doctors, they are not being 'anti-medicine' per se. They are playing their appointed and necessary role in guarding their client's rights.

Doctors, on the other hand, are being entirely unreasonable in not recognizing patient rights because that is a fundamental part of their job. Doctors cannot persist in their paternalistic and authoritarian belief that they know best as they do not and they cannot. Doctors may be best at figuring out one's prognosis (emphasis on may) but this is just one of many factors relevant in patient decision-making (there's some great writing on patient medical-decision making and how it is perceived by doctors and the courts by Professor Joan Gilmour, iirc.) The medical establishment not being sensitive to the needs and rights of patients, particularly patients with mental illnesses, is not a minor issue and it should not be treated as such. It has resulted in serious abuse and demands a lengthy examination. Unfortunately Saks does not seem like the person to provide this critique because she seems to believe in the medical establishment, so much so that she believes that the majority of people who are forcibly treated will later be grateful for the intervention.

The other major issue I had with the book is that it's not thought out/fleshed out as well as it should be. A few examples:

- Saks describes death as the 'single greatest harm a person can suffer' in justifying medical interventionism re mentally ill patients. But how can you present this idea without examination? Many would disagree. The Supreme Court of Canada disagrees. If you can acknowledge (as Saks does a few pages prior to this comment) that 'competent' patients can and do choose to refuse life-saving treatment (she actually says that 'competent' patients are "obviously" allowed to refuse life-saving treatment; I don't know what's obvious about this as patients had to fight in court for these rights, and as Saks herself notes, patients' refusals are still being ignored by doctors), then surely you can acknowledge that 'incompetent' patients may also view some treatments as being worse than death.

- Saks explains that we wouldn't forcibly treat a smoker for their nicotine addiction, but would forcibly intervene in the life of someone with a mental illness because "motivation is not nearly so important in the case of recovery from mental illness." Mmm, studies on patients with anorexia would have a thing to say about that (relapse and fatality rates are much higher with patients who are forcibly treated than voluntary patients).

- Saks compares forcibly hospitalizing people suffering from psychotic breaks (on the basis of potential dangerousness) to forcibly institutionalizing people with TB (on the basis of potential danger to the public). But TB is a contagious disease and so is an issue of public health. It's a whole different issue.

I did like the chapters on seclusion and restraints though; the issues are a bit of a no-brainer for anyone who believes in patient rights, but they're informative.

I guess that the thing I fundamentally disagree with Saks on is her belief that incompetent choices do not deserve respect. I have trouble with this belief as it seems to assert that the reason why we respect people's choices re: medical decision-making is because we believe they reflect the patient's values and choices. Which is fair, that's part of it. But part of it is also a fundamental respect for bodily autonomy. We recognize that forcing treatment on another person is a violation of their physical integrity and that is offensive to the inherent dignity of the other person regardless of their competence.

[Grace Mead · Rating 4 out of 5]

This book an excellent and nuanced treatment of the issues faced by those with severe mental illness who wish to retain self-determination when it comes to their treatment over time and their lives. I don't agree with all of it, but as I get older I realize with even greater clarity that no such book likely exists.

[Yiyi · Rating 4 out of 5]

The book is well written although can be very depressing in some cases. A good blend of legal and medical viewpoint on mental illness, hospitalizations, and treatments.