Humane Forensic Practice Serves Social Justice Humane Forensic Practice Serves Social Justice Anna R. Weissman, MD, and Philip J. Candilis, MD In response to a call for revision of the current procedures for involuntary treatment in Massachusetts, this commentary explores the ethics basis for such institutional reform. In the decades since the landmark Rogers v. Commissioner decision of 1983, the ethics foundation for forensic psychiatry has evolved from a purist approach that prioritized legal values above therapeutic ones. Building on systemic approaches by Gutheil et al. and Ciccone and Clements, Candilis and Martinez, for example, have argued that a robust professional ethic requires moving beyond the strict role theory of the adversarial system to consider broader approaches that integrate multiple perspec- tives: the ultimate goal is protection of vulnerable people and ideas. In this commentary, we suggest that the current system for involuntary treatment does not protect the vulnerable people it ought to serve, failing the neglected goal of social justice. J Am Acad Psychiatry Law 46:454 –57, 2018. DOI:10.29158/JAAPL.003796-18 This important piece by Biswas et al.1 examines the unintended consequences of the process for involun- tary treatment in Massachusetts following the 1983 Rogers v Commissioner decision by the Massachusetts Supreme Judicial Court.2 The authors make a strong case that the delays in treatment inherent in the cur- rent adversarial system result in mental deterioration that deprives patients of liberation from symptoms and leads to a more severe course of illness. The au- thors describe the current process as a consequence of “the steady development of a mental health jurispru- dence dedicated to the preservation of human rights,”1 acknowledging that self-determination and autonomy are critical aspects of this perspective (Ref. 1, p 447). While we agree that autonomy is an important ethics principle, it is only one aspect of human rights. Empowering patients to make in- formed decisions about their treatment is central to the practice of medicine and law; but the key word is “informed.” When a person is unable to make an informed decision about treatment due to mental illness, the unwavering pursuit of autonomy be- comes a distortion of human rights. The U.S. legal system addresses conflicting values by pitting them against one another. Similarly, the current system of mental health jurisprudence is a battlefield where individual good vies with social good and medical values clash with legal ones. These polarized constructs can lead to tunnel vision, obfus- cating rather than elucidating the complex human condition. In contrast, the human mind traffics in ambivalence. From molecules to cells to circuits, the brain is engaged in a constant, active, and sophisti- cated balancing act; not “either/or,” but “both/and.” At the intersection of medicine and the law, forensic psychiatry is ideally positioned to navigate conflict- ing values and uncover complex truths. The ethics foundation of forensic psychiatry has evolved in recent decades to embrace a homeostatic balance between conflicting principles.3 In their the- ory of decision analysis, Gutheil and colleagues4 pointed out the complexity of interactions between individuals, their institutions, and society at large. They suggested a decision-making system that bal- ances the tension of values, tension between profes- sions, and tension between objective and subjective factors. They eschewed a purist view of strict roles and argued for a collaborative network that addresses the moral claims of the individual, clinician, and so- ciety all at once. Ciccone and Clements5 also em- braced this synthesis in their systems approach to Dr. Weissman is Associate Director, Psychiatry Residency Training Pro- gram, Assistant Professor of Psychiatry and Behavioral Sciences, George Washington University School of Medicine, Washington, DC. Dr. Can- dilis is Interim Director of Medical Affairs, Saint Elizabeths Hospital, and Professor of Psychiatry and Behavioral Sciences, George Washington Uni- versity School of Medicine, Washington, DC. Address correspondence to: Anna R. Weissman, MD, Department of Psychiatry & Behavioral Sci- ences, George Washington University School of Medicine and Health Sciences, 2120 L Street, NW, Suite 600, Washington, DC 20037. E-mail: anna.weissman@gmail.com Disclosures of financial or other potential conflicts of interest: None. 454 The Journal of the American Academy of Psychiatry and the Law C O M M E N T A R Y forensic psychiatry. They suggested an ethics model that reflects “the inevitable conflict between two dif- ferent levels of good and suggests homeostatic mech- anisms for dealing with such conflicts” (Ref. 5, p 265). Their dialectical approach offers a broader, more nuanced perspective on the problem of invol- untary treatment: “Respect for individuals is a more useful concept than rights and autonomy concepts in the development of a medical ethic . . . we must re- define respect for individuals to include empathy and concern for the individual’s best interest, rather than only respect for reason” (Ref. 5, p 275). As Biswas et al.1 point out, there is an inherent paradox in for- going a best-interest model for substituted judgment when incompetency stems from treatable mental ill- ness; if the person were competent, he would not need involuntary treatment. Beyond balancing conflicting principles, the eth- ics practice of forensic psychiatry requires attention to the stories of marginalized individuals. In his nar- rative approach to forensic ethics, Ezra Griffith called for a cultural formulation, contending that there could be no justice in ethics frameworks that ignore the different treatment of dominant and nondomi- nant groups.6 Matthew Wynia and colleagues7 sim- ilarly pointed to the importance of advocating for the disenfranchised in their 1999 article in the New Eng- land Journal of Medicine, arguing that “professions protect not only vulnerable persons but also vulner- able social values” (Ref. 7, p 1612). Candilis and Martinez8 built on these ideas in their unifying ethics theory of robust professionalism, integrating the complex personal, social, and institutional commit- ments of forensic work. They described the forensic encounter as a moral relationship and proposed us- ing an individual’s narrative to enrich the way that principles are applied to specific cases. Biswas et al.1 echo the call for a more nuanced approach to indi- viduals and their stories: “A single law [to determine capacity for those with mental illness] cannot address the entire problem . . . it is a blunt instrument” (Ref. 1, p 450). More recently, Alec Buchanan9 connected the principle of respect for persons with a respect for human dignity. He suggests correctly that “the link between dignity and vulnerability may be that we see people as needing a minimum level of wellbeing and freedom to act in pursuit of their goals” (Ref. 9, p 15). Buchanan specifically points to the importance of dignity in issues of competence: “Respecting dig- nity when people are not competent to make their own choices seems to require us to do things other than simply respect their decisions. It seems to in- clude, for instance, acting to ensure that their best interests are protected” (Ref. 9, p 13). Buchanan’s call echoes that of Ciccone and Clements decades earlier. When individuals with mental illness are commit- ted without treatment, there are two frequent out- comes. The first scenario is well characterized by Bis- was et al.1; they languish in a medical institution, “rotting with their rights on”10 or receiving treat- ment on an inconsistent, emergency basis that is traumatic and ineffective. Another common scenario is that they are discharged, despite remaining actively in crisis, and subsequently arrested for a (usually) minor criminal offense. These encounters with law enforcement can be deadly; up to 25 percent of fatal police shootings in the United States in 2015 and 2016 involved individuals who had mental illness.11 To appreciate the regularity of this diversion to the criminal justice system, one need only look as far as our jails and prisons, where the rate of serious mental illness far exceeds the rate in the general population.12,13 The failure to treat involuntarily hospitalized in- dividuals contributes to the disproportionate arrest and incarceration of the most vulnerable people in our society. People of color with mental illness are overrepresented in prisons.14 –16 This is a result of systemic racial bias; but racism is not the only mar- ginalizing force at work in the incarceration of people with mental illness. Incarcerated individuals are not only people of color who are disproportionately af- fected by serious mentally illness, they are also far more likely than the general population to be low-income, under-employed, under-housed, and under-educated.17 These intersecting, multiply-mar- ginalized identities lead to exponential stigmatiza- tion and disempowerment.18 Even when they are once again involuntarily insti- tutionalized this time in jail many of these vulnerable individuals will continue to be deprived of treatment for weeks to months until their attorneys finally ar- gue that they are incompetent: not to refuse treat- ment, but to stand trial. This well-known back door to treatment comes at an astronomically high cost, not just for the state, but for these most marginalized citizens who endure the repeated trauma of commit- ment, arrest, detention, and incarceration. Weissman and Candilis 455Volume 46, Number 4, 2018 When they finally receive treatment, most will be restored to competence and go on to stand trial.19 Whether justice is ultimately served in these cases is another matter. Many will be incarcerated for acts that they had no capacity to understand or control. Despite the lack of mens rea, they will not pursue an insanity defense because, in many jurisdictions, suc- cess would lead to longer confinement. Others, hav- ing experienced the deleterious effects of extended, untreated mental illness, will be found not compe- tent and not restorable. According to the landmark Jackson v. Indiana20 decision, they are subject to civil commitment proceedings. Those who are ultimately found not competent, not restorable, and not com- mittable will have their charges dropped. They will be swiftly discharged, often with little planning, no housing, and no leverage to continue outpatient treatment. While only a minority of defendants fall into this category, those who do are vastly overrepre- sented in the criminal justice system and in forensic psychiatric settings. With no justice and no treat- ment, the cycle of illness, arrest, and trauma is free to accelerate: the brakes are cut. Social justice is integral to the ethics mission of many professions; in medicine, it requires promoting the fair distribution of health care resources and working actively to eliminate discrimination in health care.21 In forensic psychiatry, ethics ap- proaches have evolved to integrate social context, multiple perspectives, and the narratives of vulnera- ble individuals. These more nuanced approaches all indicate that respect for individuals encompasses far more than just autonomy. But current adversarial procedures for involuntary treatment prioritize au- tonomy above all else, not just at the expense of hu- man dignity, but at the expense of social justice. There can be no justice of any kind when the most vulnerable citizens are deprived of appropriate health care and left to languish in medical, forensic, and correctional institutions. The gross discrepancies in life expectancy for persons with mental illness that may, as Biswas et al. suggest, result in part from treatment non-adherence, represent another social injustice.1 The goals of psychiatry and the law are often not the same; but a set of procedures that pits one against the other is no longer a solution. As Ciccone and Clements5 pointed out in the early days of Rogers, “Working in a setting that calls for a balanced tension can be disturbing to those who want a neat ethical system with ideal resolutions to problems, but this does not express the human social condition . . .” (Ref. 5, p 273). Across professions, judges, attorneys, and physicians take different approaches to achieve the common goal of protecting vulnerable people, but there may already be more common ground than the current procedures acknowledge. Attorneys and judges find themselves in a situa- tion similar to physicians when they recognize that a vulnerable person in their care needs treatment. As Schouten and Gutheil22 pointed out in their empir- ical assessment of the costs of the Rogers decision, the vast majority of petitions pursued to completion (99.1%) were granted by the courts. They hypothe- sized that “despite requirement for substituted judg- ment analysis, judges may exhibit some bias toward the more humanitarian (but less libertarian) tradi- tional best-interest analysis” (Ref. 22, p 1350). Sim- ilarly, they suggested that “some attorneys might yield to their own interpretation of fiduciary respon- sibility and present a pro forma or less-than-aggressive opposing argument” (Ref. 22, p 1350). Forensic psy- chiatry is not the only profession that benefits from an integrated ethics approach that protects vulnera- ble people. While the prospect of reform may be daunting, Elizabeth Wolgast23 reminds us why we must move forward: “The motive for tackling these gargantuan projects of reform is that the alternative is a further thinning in the meaning of responsibility on one side while nurturing institutions that defeat it on the other. A decision to change is acutely a moral deci- sion, and moral courage is needed to make it” (Ref. 23, p 157). Some forensic authors have already sug- gested that the strict, strong, or narrow professional role may well be the concept that allows for what Wolgast described as the “further thinning of indi- vidual responsibility” (Ref. 23, p 157). It is the broader view of professional role that allows redress of social inequities and their visitation on vulnerable persons. More recent commentators24 contend that “we will have to look carefully at the connection between professional role and institutional or societal needs if we are to develop the ‘moral courage’ to seek reform” (Ref. 24, p 109). The moral courage to re- form is at the core of social justice. References 1. Biswas J, Drogin EY, Gutheil TG: Is treatment delayed is treat- ment denied. J Am Acad Psychiatry Law 46:447– 453, 2018 Humane Forensic Practice Serves Social Justice 456 The Journal of the American Academy of Psychiatry and the Law 2. Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983) 3. Griffith EEH (Editor): Ethics Challenges in Forensic Psychiatry and Psychology Practice. New York: Columbia University Press, 2018 4. Gutheil TG, Burstajn HJ, Brodsky A, et al: Decision Making in Psychiatry and the Law. Baltimore, MD: Williams & Wilkins, 1991 5. Ciccone JR, Clements CD: The ethical practice of forensic psy- chiatry: a view from the trenches. Bull Am Acad Psychiatry Law 23:263–77, 1994 6. Griffith EEH: Ethics in forensic psychiatry: a cultural response to Stone and Appelbaum. J Am Acad Psychiatry Law 26:171– 84, 1998 7. Wynia MK, Lathan SR, Kao AC, et al: Medical professionalism in society. N Engl J Med 341:1612– 6, 1999 8. Candilis PJ, Martinez R, Dording C: Principles and narrative in forensic psychiatry: toward a robust view of professional role. J Am Acad Psychiatry Law 29:167–73, 2001 9. Buchanan A: Respect for dignity and forensic psychiatry. Int’l J L & Psychiatry 41:12–17, 2015 10. Applebaum PS, Gutheil TG: “Rotting with their rights on”: con- stitutional theory and clinical reality in drug refusal by psychiatric patients. Bull Am Acad Psychiatry Law 7:308 –17, 1979 11. Frankham E: Mental illness affects police fatal shootings. Con- texts 17:70 –72, 2018 12. Steadman HJ, Osher FC, Robbins PC, et al: Prevalence of serious mental illness among jail inmates. Psychiatr Serv 60:761–5, 2009 13. James DJ, Glaze LE: Mental health problems of prison and jail inmates. Special Report, Bureau of Justice Statistics, 2006 14. Grekin PM, Jemelka R, Trupin EW: Racial differences in the criminalization of the mentally ill. Bull Am Acad Psychiatry Law 22:411–20, 1994 15. Hawthorne WB, Folsom DP, Sommerfeld DH, et al: Incarcera- tion among adults who are in the public mental health system: rates, risk factors, and short-term outcomes. Psychiatr Serv 63: 26 –32, 2012 16. Fisher WH, Roy-Bujnowski KM, Grudzinskas AJ Jr, et al: Pat- terns and prevalence of arrest in a statewide cohort of mental health care consumers. Psychiatr Serv 57:1623–28, 2006 17. Greenberg G, Rosenheck R: Jail incarceration, homelessness, and mental health: a national study. Psychiatr Serv 59:170 –7, 2008 18. Crenshaw K: Demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist policies. U Chi Legal F 1:139 – 67, 1989 19. Mossman D: Predicting restorability of incompetent criminal de- fendants. J Am Acad Psychiatry Law 35:34 – 43, 2007 20. Jackson v. Indiana, 406 U.S. 715 (1972) 21. ABIM Foundation, ACP-ASIM Foundation, European Federa- tion of Internal Medicine: Medical professionalism in the new millennium: a physician charter. Ann Intern Med 136:243– 6, 2002 22. Schouten R, Gutheil TG: Aftermath of the Rogers decision: assess- ing the costs. Am J Psychiatry 147:1348 –52, 1990 23. Wolgast E: Ethics of an Artificial Person. Palo Alto, CA: Stanford University Press, 1992 24. Candilis PJ, Weinstock R, Martinez R: Forensic Ethics and the Expert Witness. New York: Springer Publishing Co., 2007 Weissman and Candilis 457Volume 46, Number 4, 2018