Saturday, October 29, 2011
UNJUSTIFIED PSYCHIATRIC COMMITNENT IN THE U.S.A
by Lawrence Stevens, J.D.
In 1992, U.S. Representative Patricia Schroeder of Colorado held hearings investigating the practices of psychiatric hospitals in the United States. Rep. Schroeder summarized her committee's findings as follows: "Our investigation has found that thousands of adolescents, children, and adults have been hospitalized for psychiatric treatment they didn't need; that hospitals hire bounty hunters to kidnap patients with mental health insurance; that patients are kept against their will until their insurance benefits run out; that psychiatrists are being pressured by the hospitals to increase profit; that hospitals 'infiltrate' schools by paying kickbacks to school counselors who deliver students; that bonuses are paid to hospital employees, including psychiatrists, for keeping the hospital beds filled; and that military dependents are being targeted for their generous mental health benefits. I could go on, but you get the picture" (quoted in: Lynn Payer, Disease- Mongers: How Doctors, Drug Companies, and Insurers Are Making You Feel Sick, John Wiley & Sons, Inc., 1992, pp. 234-235).
A headline on the front page of the July 6, 1986 Oakland, California Tribune reads: "Adolescents are packing private mental hospitals But do most of them belong there?" The newspaper article says: "...mental patients advocates say many adolescents in private hospitals are not seriously mentally ill, but merely rebellious. By holding the adolescents, who often dislike hospitalization, advocates say private hospitals reap profits and please parents. ... Some county mental health officials and psychiatrists at private hospitals acknowledge there are hospitalized adolescents who, ideally, shouldn't be there. ... 'It distresses me to see kids in these facilities; it distressesme to see the profits going on,' Jay Mahler, of Patients Rights Advocacy and Training, said two weeks ago at a Concord Public forum. 'It's a hot business,' Tim Goolsby, a Contra Costa County Probation Department adolescent placement supervisor, later agreed. 'If your kids like sex, drugs, and rock'n'roll, that's the place to put them. I'm not sure insurance companies know what's going on, but they're being ripped off.' Goolsby estimated 80 percent of adolescents in Contra Costa private psychiatric hospitals are not mentally ill... University of Southern California sociologists Patricia Guttridge and Carol Warren say these adolescents have been transformed from delinquents to emotionally disturbed children. After studying 1,119 adolescents in four Los Angeles-area psychiatric hospitals, they found that less than a fifth were admitted for serious mental illnesses" (Susan Stern, The Tribune (Oakland, California), Sunday, July 6, 1986, p. A-1 & A-2).
In the February 1988 Stanford Law Journal Lois A. Weithorn, Ph.D., a former University of Virginia psychology professor, said "adolescent admission rates to psychiatric units of private hospitals have jumped dramatically, increasing over four-fold between 1980 and 1984. ... I contend that the rising rates of psychiatric admission of children and adolescents reflect an increasing use of hospitalization to manage a population for whom such intervention is typically inappropriate: 'troublesome' youth who do not suffer from severe mental disorders" (40 Stanford Law Review 773 at 773-774).
Psychiatric and psychological "diagnosis" is arbitrary and unreliable. Furthermore, the supposed experts responsible for these "diagnoses" are usually biased in favor of commitment because of their personal economic concerns or their affiliation with the psychiatric "hospital" where the "patient" is or will be confined. Psychiatric "hospitals", like all businesses, need customers. In the case of psychiatric "hospitals", they need patients. They not only want patients, they need them to stay in business. Similarly, individual psychiatrists and psychologists need patients to make money and earn a living. A magazine article published in 1992 criticizing the trend towards locking up troublesome teenagers alleged that teenagers are locked up in psychiatric hospitals today more than in the past because "busy parents are less willing to deal with their behavior and because inpatient psychiatric business represents a profitable market in the health-care field." The result has been an increase in the number of psychiatric hospitals in recent years, "from 220 in 1984 to 341 in 1988". This increase in the number of psychiatric hospitals has resulted in keen competition between hospitals and psychiatrists for patients. "Keeping all those psychiatric beds filled is critical, and administrators are aggressively ensuring that they will be. Hard-sell TV, radio, and magazine ads (up to tenfold in the past few years, according to Metz) are ubiquitous ... Some facilities even resort to paying employees and others bonuses of $500 to $1,000 per referral. ... Rebellious teenagers used to be grounded. New they're being committed. Increasingly, parents are locking up their unruly kids in the psychiatric wards of private hospitals for engaging in what many therapists call normal adolescent behavior. Adolescent psychiatric admissions have gone up 250 or 400 percent since 1980, reports Holly Metz in The Progressive (Dec. 1991), but it's not because teens are suddenly so much crazier than they were a decade ago. Indeed, the Children's Defense Fund suggests that at least 40 percent of these juvenile admissions are inappropriate, while a Family Therapy Networker (July/Aug. 1990) youth expert puts that figure at 75 percent" (Lynette Lamb, "Kids in the Cuckoo's Nest Why are we locking up America's troublesome teens?", Utne Reader, March/April pp. 38, 40).
In her book And They Call It Help - The Psychiatric Policing of America's Children, published in 1993, Louise Armstrong laments "the 65 percent of kids in private, for-profit psych hospitals who simply do not need to be there but are given severe-sounding labels nonetheless" (Addison-Wesley Pub. Co., p. 167 - italics in original).
Unjustified involuntary commitment to psychiatric hospitals has become so blatant Reader's Digest published an article in the July 1992 issue exposing the unethical practice:
"Similar storm clouds are appearing over the mental - health field. Alarmed by exploding costs, insurance companies began scrutinizing payments more carefully - and ultimately trimmed the average patient's length of hospital stay. As a result, 'private hospitals that once made a great deal of money are now desperate for patients,' says Dr. Alan Stone, former president of the American Psychiatric Association.
"That desperation has opened the door for fraud. Among the alleged abuses: patients abducted by 'bounty hunters'; others hospitalized against their will until their insurance runs out; diagnoses and treatments tailored to maximize insurance reimbursement; kickbacks for recruiting patients; unnecessary treatments; gross overbilling.
"The most infamous charges were leveled in Texas. On April 4, 1991, two private security agents showed up at the Harrell family home in Live Oak to pick up Jeramy Harrell, 14, and admit him on suspicion of drug abuse to Colonial Hills Hospital, a private psychiatric facility in San Antonio.
"Family members believed the agents to be law-enforcement officers. If Jeramy didn't cooperate, the agents said, they could obtain a warrant and have him detained for 28 days. 'They acted just like the Gestapo,' the boy's grandmother - and legal guardian - later told a Texas state senate committee.
"According to that testimony, Jeramy was denied any contact with his family for six days and released only after a state senator [Frank Tejeda, now in Congress] intervened. State officials discovered the boy had been ordered detained by a staff doctor after his disturbed younger brother lied about Jeramy's supposed drug use. The guards who brought him in worked for a private firm paid by Colonial Hills for each patient delivered. ...
"Soon after the ordeal, the Harrells got a bill for Jeramy's six-day stay, a stunning $11,000. The hospital's owner denied any wrongdoing.
"The Harrell case led to those Texas senate hearings, which in turn brought to light other allegations of fraud and abuse involving some 12 other Texas facilities and at least three other national hospital chains. Similar charges have been made against hospitals in New Jersey, Florida, Alabama and Louisiana; three federal agencies have opened investigations, and more than a dozen states have probes under way" (Gordon Witkin, "Beware These Health Scams", Reader's Digest, July 1992, p. 142 at 144-146).
In 1991 or 1992 an administrator at a psychiatric "hospital" told me competition between psychiatric hospitals is what she called "cut throat". Combine this intense competition with America's poorly written involuntary commitment laws and judges who refuse to impose protection from unwarranted commitment that bona-fide due process requires, and the result is a lot of people being deprived of liberty and suffering psychiatric stigma unjustifiably. In the field of so-called mental health where large amounts of money can be made, in large part because of health insurance, and where there is a competitive environment where there are too few psychiatric "patients" to fill psychiatric beds, self-interest biases the supposed psychiatric or psychological experts in favor of a "diagnosis" which justifies commitment, including involuntary commitment where necessary. As Harvard Law professor Alan M. Dershowitz has said, psychiatry "is not a scientific discipline" ("Clash of Testimony in Hinkley Trial Has Psychiatrists Worried Over Image", The New York Times May 24, 1982, p. 11). The opinion of many legislators and judges that impartiality, objectivity, and scientific expertise of mental health professionals makes the kind of due process needed elsewhere unnecessary in psychiatric commitment is mistaken.
As was noted in the above quoted Reader's Digest article, much of this unjustified involuntary psychiatric commitment of normal and law-abiding people to the prisons called psychiatric hospitals is motivated by the financial needs of psychiatric hospitals and the people who work in them. Although it has been reaching newspaper headlines in only the last several years, unwarranted psychiatric commitment has been going on for over a century, including in the USA where freedom is supposedly a cherished value and where human rights are supposedly respected. Recent inventions such as health care insurance have made the abuses more frequent, but the willingness of mental health "professionals" to violate the sacred right of each law-abiding person to liberty isn't new.
What is most needed is recognition that there is no such thing as "mental illness". That alone undermines the justification for most involuntarily imposed so-called psychiatric care. Rather than being a bona-fide illness, the mental "illness" label is value judgment about a person's behavior. But as long as incarceration for so-called mental illness continues, those accused of it should be given the same rights as defendants in criminal cases. America's established history of unwarranted psychiatric commitment shows this protection is necessary. These rights include trial by jury, a procedure for assuring the defendant or so-called proposed patient has been advised of when and how to invoke his or her right to jury trial, an absolute prohibition of incommunicado confinement (particularly during the pre-trial period), the right to confront and cross-examine opposing witnesses, the right to call one's own witnesses, conviction or commitment only if there is proof beyond a reasonable doubt, freedom from double-jeopardy, and assistance of legal counsel. The prohibition of incommunicado confinement must be absolute, because if psychiatrists are permitted by law to hold prisoners ("patients") incommunicado in "emergencies", that power will often be used routinely (without emergency). Another safeguard prisoners of psychiatry need is protection from being mentally disabled by forcibly administered psychiatric drugs or electric shock treatment prior to their day in court. Of all these due-process rights, the right to jury trial and the right to not be mentally disabled by psychiatric drugs or electric shock treatment prior to one's day in court are unquestionably the most important. Many states have provided a right to jury trial in psychiatric commitment cases by statute, but many have not; and judges often refuse to grant it as a constitutional right. Judges are as capable as psychiatrists of deciding what to do with people accused of mental illness, but few will even attempt to do so and will instead approve a psychiatrist's request for commitment without even the slightest attempt at real judicial review. The importance of the right to jury trial is illustrated by the remark of a court clerk who told me, in the judge's presence, that the judge felt if he didn't follow the doctor's recommendation regarding commitment, "the Court would be practicing medicine without a license." This illogical statement, which the judge seemed to agree with (indicated by his silence as he listened to his clerk say this and by his conduct in court) reveals the extent to which judges have abdicated their responsibility in this area to psychiatrists. The invalidity and unreliability of psychiatric "diagnosis", often complicated by the psychiatrist's financial stake in getting the so-called patient committed, combined with the immutable reluctance of most judges to use their own independent judgment, makes a jury absolutely essential for a fair trial in psychiatric commitment cases. This is truly a case of "NO JURY - NO JUSTICE".
Far from anything idealistic like law or concern for human rights, the primary forces curtailing unnecessary involuntary psychiatric "hospitalization" in the USA have been insurance companies motivated not by idealism but by monetary concerns. As Tim Goolsby remarked in 1986 (above), "they [the health insurance companies] [a]re being ripped off." Eventually the health insurance companies became aware of the needless psychiatric treatment they were paying for. According to a front-page article in the August 3, 1992 issue of Investor's Business Daily: "Last Thursday...eight major insurance companies sued NME [National Medical Enterprises] for alleged fraud involving hundreds of millions of dollars in psychiatric hospital claims. Their complaint, filed in federal court in Washington, accused the company of a 'massive' scheme to admit and treat thousands of patients regardless of their need for care. ...some institutions were paying 'bounty fees' for patient referrals or misdiagnosing patients to get maximum reimbursement" (Christine Shenot, "Bleeder at National Medical Insurers Cry Of 'Fraud' Reopened A Big Wound", Investor's Business Daily, Monday, August 3, 1992, p. 1). Time magazine later reported NME settled the case for a record $300 million (April 25, 1994, p. 24). An article about a similar suit filed in Dallas, Texas appeared in the September 15, 1992 issue of New York Newsday, saying: "Two of the country's largest insurance companies filed suit yesterday against a national chain of private psychiatric and substance abuse hospitals, charging it with illegally admitting patients who did not need treatment and then not releasing them until their insurance benefits ran out" Michael Unger, "Hospitals Called Cheats Insurers say health-care chain pulled off nationwide scam", New York Newsday, Thursday, September 15, 1992, Business section, page 33).
Insurance fraud involving psychiatrists treating people who do not want or need treatment illustrates a more serious underlying problem that still has not been adequately addressed: Loss of liberty based on the opinions of psychiatrists rather than on unlawful conduct by the accused has no place in a nation that claims to respect the rights of each individual.
THE AUTHOR, Lawrence Stevens, is a lawyer whose practice has included representing psychiatric "patients". His pamphlets are not copyrighted. You are invited to make copies for those who you feel will benefit.
"The confusing aspect about this is that many adolescents are irritable, aggressive, and impulsive because they are upset about their life circumstances. In recent years some of these teenagers have found their way into psychiatric hospitals, labeled with the diagnosis of bipolar disorder and placed on medications. Some psychiatric hospitals made a practice of admitting adolescents in distress, using the diagnosis of bipolar disorder inappropriately in order to increase their billing to insurance companies. This practice was so widespread that the federal government finally intervened, charging the hospitals with fraud and assessing fines of millions of dollars. Many of these children did not have bipolar disorder at all, but were acting inappropriately because of stresses in their families, with their friends, and at school." Edward Drummond, M.D., Associate Medical Director at Seacoast Mental Health Center in Portsmouth, New Hampshire, in his book The Complete Guide to Psychiatric Drugs (John Wiley & Sons, Inc., New York, 2000), pages 13-14. Dr. Drummond graduated from Tufts University School of Medicine and was trained in psychiatry at Harvard University.