Department of ethics

PARITY FOR MENTAL ILLNESS, DISPARITY FOR THE MENTAL PATIENT

SUNY Health Science Center, 750 East Adams Street, Syracuse, NY 13210, USA
(Prof T Szasz MD)

The core concept of mental illness--to which the vast majority of
psychiatrists and the public adhere--is that diseases of the mind are
diseases of the brain; in other words, that mental diseases and brain
diseases are the same kinds of diseases.1 It is now widely accepted that
"the overwhelming weight of medical research has demonstrated that mental
illnesses are biologically based".2 The equating of mental disease with
brain disease, supported by the authority of a large body of neuroscience
literature, is used to rationalise the drug treatment of mental illness and
justify the demand for parity in insurance coverage for medical and mental
disorders.

Reflecting the influence of these ideas and their implications, on Sept 26,
1997, President Clinton signed the Mental Health Parity Act of 1996 (PL
104-204), which took effect on Jan 1, 1998). "This landmark law", according
to the National Alliance for the Mentally Ill (NAMI), "begins the process
of ending the long-held practice of providing less insurance coverage for
mental illnesses, or brain disorders, than is provided for equally serious
physical disorders". (See the NAMI website--http://www.nami.org )

Many states have enacted similar legislation.2 Congress enacted, 7 years
earlier, the Patient Self-Determination Act, another important piece of
legislation with potentially far-reaching implications for mental patients.

It has apparently gone unnoticed that the rhetoric of parity in insurance
status for patients with medical or mental illness is inconsistent with the
reality of disparity in their legal status. This disparity is usually
justified on the ground that medical diseases, unlike mental diseases, are
unlikely to impair the patient's competence to elect or reject treatment.
Patients with sarcoma are assumed to remain in possession of their mental
faculties, but patients with schizophrenia are not. Thus, medical patients
are treated as contracting moral agents, and medical hospitals and
physicians are never accused of imprisoning them. Mental patients, however,
are commonly treated as if they are minors or unconscious, and mental
hospitals and psychiatrists are often accused of imprisoning them.3

Note that the truth or falsity of the claim that mental diseases are brain
diseases is largely irrelevant to the disparity in legal status between the
patient with psychiatric illness and the patient with neurological illness.
Before World War II, when neurosyphilis was still common, most patients
with paresis (general paralysis of the insane)-- unlike most patients with
other neurological ailments, such as Parkinsonism and multiple
sclerosis--were confined in mental hospitals against their will. There was
a good reason for this policy. Patients with paresis, like other "insane"
people, commonly exhibited "disordered" thoughts, feelings, and behaviours,
whereas most patients with other brain diseases did not. In short, mental
patients (the "mad" or "insane") were confined against their will primarily
because they misbehaved, not because they were sick. This continues to be
the case.

The contention that confining people against their will is an accepted part
of the mental hospital's social function is starkly illustrated by the 1997
Supreme Court ruling in Kansas v Leroy Hendricks (No 95-1649) upholding a
law that "states have a right to use psychiatric hospitals to confine
certain sex offenders once they have completed their prison terms, even if
those offenders do not meet mental illness commitment criteria".4,5 Despite
the characterisation of this ruling as an "abuse" of the mental health
system by Psychiatric News, the American Psychiatric Association's official
newspaper,6 traditional social-psychiatric custom leads directly to such
abuses. As the diagnosis of bodily illness justifies a physician's
admission of a willing patient to the hospital, so the diagnosis of mental
illness justifies a judge's (and a psychiatrist's) admission of an
unwilling patient to a mental hospital. Failure to acknowledge this fact
precludes genuine reforms in psychiatric policy.

The Patient Self-Determination Act makes it mandatory for healthcare
providers receiving Medicare or Medicaid payments to "inform patients of
their existing rights under state law to refuse treatment and prepare
advance directives".7 The Act requires healthcare providers in hospitals
and other healthcare settings:

To develop written policies concerning advance directives;

To ask all new patients whether they have prepared an advance directive and
to include this information in the patient's chart;

To give patients written materials describing the facility's policies on
advance directives and the patient's right (under applicable state law) to
prepare such a document; and

To educate staff and the community about advance directives.8

The mandate of the Act reflects the US political commitment to the value of
the patient's autonomy as an integral part of the right to personal
liberty. Although nothing in the Act suggests that the term "patient" does
not include those treated by psychiatrists, prevailing mental health
practices clearly fail to comply with the mandates--for example,
involuntary psychiatric hospitalisation, and involuntary drug treatment of
mental patients living in psychiatric facilities as well as the community.

The treatment of people without their consent, and even against their will,
happens far more often with mental patients than with medical patients.
Rare but dramatic dilemmas of involuntary treatment involving patients on
life support, such as the much-publicised case of Nancy Cruzan,9 capture
the interest of the public. Most people can imagine themselves on life
support against their will. By contrast, routine cases of involuntary
treatment--typically involving the admission to hospital of people who
disturb the peace--appear uncontroversial and hold little interest for the
public. Most people either cannot see themselves in such a predicament or
believe that, in such a situation, medical judgment ought to over-ride the
patient's choice. These reactions reflect the intuitive understanding,
albeit unarticulated, experienced by most people who feel that there really
is a difference between medical and mental disease.

I hope that the increasing emphasis on patient responsibility and
self-determination in medicine will have a knock-on effect on patient
responsibility and self-determination in psychiatry. Indeed, I believe that
the so-called medical model of mental illness holds out more promise for
clarifying the mental patients' legal status than for understanding their
malady. In any case, we have to confront the marked disparity in legal
status between these two kinds of patients.

The evidence that psychiatric practices fail to conform to the requirements
of the Patient Self-Determination Act is so abundant that the assertion
hardly requires documentation. A single example should suffice.
Investigators studied about 350 admissions to three acute psychiatric
inpatient units in Virginia. 45 of the patients tried to refuse treatment.
None succeeded: "Psychiatrists exercised their discretion to promptly treat
all patients who refused treatment. Nonetheless, these patients suffered
more morbidity than compliant patients. This study suggests that the
negative sequelae of an inhospital treatment refusal cannot be eliminated
by rapid treatment".10 The investigators candidly acknowledge that
"refusers were prescribed higher doses of antipsychotic medications than
were compliant patients". Patients who refused treatment, according to this
study, "had negative attitudes toward past, present, and future treatment
at the time of admission"; it was felt that such attitudes may be
"generated by prior coercive treatment".

The dilemmas that mental patients pose for themselves, their families, and
society can be resolved if the familiar advance directive or "living will"
is adapted to the circumstances of psychiatric patients and their carers. I
proposed such an advance psychiatric directive--or, as I called it,
"psychiatric will"--in 1982, crafting it especially for the needs of mental
patients who face the prospect of future involuntary treatment.11 The
intent of the directive was to transcend the problems created by
psychiatric crises or emergencies--situations in which the patients'
involuntary treatment is justified by their being deemed dangerous to
themselves or others.

Modelled on the last will that comes into force after death, the
psychiatric will becomes operative only after the person's legal status has
undergone the change he or she anticipates. As the last will becomes
effective only after the testator is officially declared dead, the
psychiatric will would become effective only after the person was
officially declared a mental patient (dangerous to himself or others).
Executing such a document would be of special interest to individuals who
have undergone an episode of involuntary psychiatric treatment; they would
have first-hand experience of the interventions they might want to request
or reject in the future, should they be deemed to require psychiatric care.
Like the last will, the psychiatric will would be valid only if executed by
people considered legally competent at the time of its signing. This
criterion is met, by definition, by individuals who have been discharged
from psychiatric hospitals, because they are deemed capable of living on
their own. Generally, mental patients not declared legally incompetent are
covered because, in the USA, adults are presumed to be competent until
declared incompetent, just as defendants are presumed to be innocent until
proven guilty. So far, the idea of a psychiatric will has aroused more
interest in Europe, especially Germany, than it has in the USA.

Some may object that if people who are committable by current criteria were
left at liberty, because that is what they requested in their psychiatric
will, they might harm themselves or others, imposing financial and personal
costs on families, insurance companies, or the government. Although this is
true, involuntary psychiatric interventions also entail significant
financial and personal costs, and it is not at all clear which option would
be the costliest in the long run. In any case, in Anglo-American political
philosophy, there is not supposed to be a price on the freedom of the
individual. As for the possibility of such people harming others, their
psychiatric will deals with this contingency by requesting that their
"treatment" consist of the punishment prescribed by law for their
particular offence.

Another objection, also stemming from the fear of the mental patient's
dangerousness, might run like this. When a medically ill person--such as
one with a progressive brain tumour--loses his "mind", it is reasonable to
respect his advance request that he be given no further treatment since his
choice harms only himself. However, when a mentally ill person, such as one
with schizophrenia, loses his "mind", many people feel it is unreasonable
to respect his advance request that he be given no further treatment
because his choice may harm others as well. This misgiving is intrinsic to
our concept of mental illness. We do not know, however, whether so-called
mental patients would commit more or less violence against others if those
who elect to be punished for legal transgression were to be "treated" by
the legal sanctions they prefer rather than by the psychiatric sanctions
they reject.

Curiously, writers on advance directives rarely consider the situation of
psychiatric patients; when they do consider it, it is to promote the
patients' consent to treatment rather than to protect their right to refuse
it. For example, a recent treatise by an attorney on the mental patient's
right to refuse treatment makes no reference to the Patient
Self-Determination Act or to the psychiatric will. The attorney takes the
view that when the psychiatrist's decision is to treat, the patient's
refusal is suspect: "When the objection is to a therapeutic
intervention--hospitalization or conventional treatment--recommended by the
patient's therapists, there also may be reason to at least question whether
the refusal of such treatment might be antitherapeutic and inconsistent
with their welfare".12 He goes on to say that the use of such instruments
by mental patients may be "therapeutically advantageous".

Such prejudgment destroys the usefulness of the advance directive as a
device for protecting the mental patient's right to self-determination. In
psychiatry, unlike in other medical specialties, tradition sanctions the
use of involuntary treatment. Hence, the principal use of advanced
directives in psychiatry must be to help patients to avoid unwanted
interventions. In a setting where enlightened voices claim that patients
diagnosed as mentally ill ought to be treated like patients diagnosed as
medically ill, and where laws guarantee "parity" with respect to insurance
coverage, differential treatment of the two groups with respect to their
right to refuse treatment is particularly troubling. We must beware lest
these latest efforts at psychiatric reform result in greater parity between
psychiatric and non-psychiatric physicians, but greater disparity between
psychiatric and non-psychiatric patients.

Adoption of an advance mental-health directive or psychiatric will would
help patients, physicians, and lawyers alike to cut psychiatry's Gordian
knot--namely, the conflation of (mental) illness and (legal) incompetence.
The Patient Self-Determination Act requires that the law afford the same
rights to accept or reject treatment to the competent medical patient and
to the competent (ex)mental patient. The psychiatric will, supported by the
proper application of the Act to psychiatry, would thus protect mental
patients from involuntary treatment in the event that, at some future time,
they are deemed to be in need of such treatment, but, because of (mental)
illness, are thought to be unable to make sound decisions about their own
welfare. (If such persons break the law, they ought to be charged with a
crime and tried for it; if not, they ought to be left alone.) Psychiatric
practice would then conform to the requirements of the Act, and Americans,
as patients as well as citizens, would be guaranteed equal protection under
the law.

I thank Alice Michtom and Roger Yanow for their help in the preparation of
this paper.

References

1 Szasz T. The meaning of mind: language, morality, and neuroscience.
Westport, CT: Praeger, 1996: 115-38.

2 Anon. Campaign moves Congress and the nation forward. Campaign Spotlight:
The Quarterly NAMI Review 1997; 1: 2.

3 Associated Press. Psychiatric hospital accused of holding patients
captive in Fla. Arizona Republic, Dec 14, 1996: A9.

4 Anon. Excerpts from opinions on status of sex offenders. New York Times,
June 24, 1997: B11.

5 Collins J. Throwing away the key. Time, July 7, 1997: 29.

6 Hausman K. Court ruling opens door to abuse of mental health system.
Psychiatric News 1997; 32: 1.

7 Editorial. The Patient Self-Determination Act. JAMA 1991; 266: 410-12.

8 Greco PJ, Schulman KA, Lavizzo-Mourey R, Hansen-Flaschen J. The Patient
Self-Determination Act and the Future of Advance Directives, Ann Intern Med
1991; 115: 639-43.

9 Cruzan v Director, Missouri Department of Health, 110 S Ct 2841, 1990.

10 Kasper JA, Hoge SK, Feucht-Haviar T, Cortina J, Cohen B. Prospective
study of patients' refusal of antipsychotic medication under a physician
discretion review procedure. Am J Psychiatry 1997; 154: 483-89.

11 Szasz T. The psychiatric will: a new mechanism for protecting persons
against 'psychosis' and psychiatry. Am Psychol 1982; 37: 762-70.

12 Winick BJ. The right to refuse mental health treatment. Washington, DC:
American Psychological Association, 1997: 398-99.

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