Clinicians and Lawyers

I. CASE EXAMPLES

A. CASE EXAMPLE 1

Arriving one evening on an inpatient ward of a community mental health center, after transfer from the emergency room of a nearby general hospital, a 25-year-old patient heads immediately for the public telephone on the ward. She is overheard saying, “This place is like a jail, I want to get out.” After her phone call, she retreats angrily to her room, refusing to talk with staff members.

A few hours later, a young man describing himself as the patient’s lawyer appears on the ward and, although visiting hours are over, demands to see her. When the staff initially refuses, he threatens to sue them all. Made nervous by his aggressive manner and persistent threats, they ultimately relent. After a brief conversation with the patient, the lawyer approaches the nursing station, insisting to the nurse in charge that the patient be released immediately into his custody. The nurse informs him that she has no power to release the patient but suggests that he call the psychiatrist in charge of the ward.

Speaking with the psychiatrist, the lawyer again demands that the patient be released, saying that he spoke with her, is satisfied that she is not mentally ill, and that therefore her involuntary admission violates her constitutional rights. The psychiatrist, having ascertained from the ward staff that the lawyer does in fact represent the patient, asks if he is aware of the circumstances surrounding her admission. Replying that he is, the lawyer says that the whole situation has been blown out of proportion. He relates that the patient, a personal friend of his, accidentally took too many sleeping pills; she then had the good sense to call him, and he arranged for her to be taken to the emergency room. The psychiatrist responds that the emergency room psychiatrist thought that a far more serious and genuine suicide attempt had occurred and recommended emergency commitment. He suggests further that the patient remain on the ward overnight and that in the morning everyone involved gather to discuss the case. The lawyer reluctantly agrees.

B. CASE EXAMPLE 2

Ambling resignedly to the admissions office, a first-year resident goes to meet her newly admitted patient. Her lethargy vanishes abruptly when the admissions clerk, drawing her aside, hisses into her ear that her new patient is a lawyer, picked up by police for behaving erratically in the middle of an expressway, shouting at passing cars, and attempting to direct traffic.

Clearing a suddenly dry throat, the resident introduces herself to the patient as the doctor. He is a pale but vigilant-eyed man in a dirty, torn, navy blue three-piece suit of expensive cut, mismatched with a fluorescent orange tie. On hearing her name, the patient whips from an inside pocket a grimy notepad, the pages covered with scribbles and worn to translucency by much handling, and records the doctor’s name; he then demands and records the name of the admissions clerk and of the two arresting officers who are standing uncomfortably in the doorway. Thrusting pad into pocket with an air of triumph, the patient fixes the resident with a baleful glare and snarls, “When I get you into court for this, you’ll be lucky to have your gold fillings left.”

Three days later, the patient, who has been roaming the ward, haranguing all who would listen, has still not had admission bloodwork done, the morale of nursing staff is in shambles, and the resident has checked twice with her insurer to be sure of continued coverage. Now, after a fellow patient has refused to lend him yet another cigarette, the lawyer-patient begins to assault the refuser. Staff are about to move in to restrain him, but the resident shouts, “Wait! He hasn’t really hurt her yet, we can’t stop him.” The senior attendant, a seasoned veteran of many crises, grabs the lawyer-patient anyway and hustles him to seclusion. Returning, he shakes an admonitory forefinger at the resident and declaims, “You’d better check this case out with the attending, because this guy hasn’t gotten one ounce of treatment since he arrived.”

Angered by this unsought advice, but secretly agreeing with the attendant’s assessment, the resident seeks out the staff psychiatrist on the ward and presents the problem.

II. LEGAL ISSUES

A. LAWYERS’ PERCEPTIONS OF PSYCHIATRY

From the 1930s through the 1950s, a tremendous and sympathetic surge of interest existed in psychiatry on the part of the legal profession. In the second half of the 20th century, however, many lawyers developed a decided antipathy to psychiatry. Although the last several decades have seen some moderation of this trend, a number of factors exist to account for the development and maintenance of this attitude, which ranges from wariness to hostility toward the methods and motives of the mental health professions.

1. Disappointed Expectations

The expectations that psychiatrists aroused and then disappointed in the mid-20th century form part of the basis for lawyers’ suspicions of psychiatry and the other mental health professions. In a variety of settings, psychiatrists seemed to promise to lend scientific certainty to many of the most difficult problems faced by the law. In the courts, psychiatrists and other mental health professionals began to participate in recommending alternatives to incarceration; in the prisons, they attempted to treat and rehabilitate criminals; in parole hearings, they offered opinions as to when prisoners should be released. This activity was part of an attempt to deal with crime as a symptom of mental dysfunction; measured either by the development of internally consistent theories or the rates of recidivism of those treated, it failed.

Psychiatrists also became involved in the administration of the insanity defense, appearing to promise a definitive answer to the question of who should be deemed culpable for criminal acts. This attempt also failed, as equally renowned psychiatrists reached equally well-reasoned conclusions for opposite sides of the case (see also Chap. 8, Sec. II-C-3). In the civil courts, they tried to lend scientific certainty to child custody determinations, but again without success.

This overselling of psychiatry, and the consequent disappointments, left the legal profession with a lingering suspicion about the general validity of psychiatric theories and the use of psychiatric practices. In lawyers’ eyes, a taint of charlatanism had spread across the mental health professions.

2. Effects of Legal Training

Certain elements of legal training have contributed to lawyers’ distrust of psychiatry.

a. Legal model. The law is, above all, a practical tool for maintaining order and resolving disputes in society. Rather than dealing with the infinite diversity and complexity of human beings (the aspects of human existence that most interest many clinicians), legal doctrines often attempt to simplify the situation by postulating certain axioms and creating certain presumptions that redefine a more easily administered reality. The axioms include, “a man intends the natural consequences of his acts,” which presumes that all individuals are responsible for their actions and competent to undertake them until proven otherwise. Psychiatric concepts complicate the work of the law by challenging these axioms and presumptions, while offering a competing system of explaining human behavior. The ideas of unconscious motivation (supported by recent neurophysiologic and neuroimaging research) and ambivalence, for example, cast doubt on the exact intentions of our actions; the concept of regression suggests that in many situations, such as severe physical illness, human beings are not capable of acting as the competent, detached decision-makers the law envisions them to be. To maintain intellectual consistency, lawyers must either ignore or disparage psychiatric formulations or modify their legal conceptions, the second of which many lawyers are unwilling to do.

In addition, given the law’s need to rely on observable verities, lawyers are trained to be suspicious of any attempts to take people’s words and actions at other than face value. Most clinicians, on the other hand, are trained to understand behavior by assuming that people rarely say exactly what they mean. Any clinician who has ever tried to explain to a lawyer why his client’s repeated entreaties to be released from the hospital actually represent a reaction formation against deep-seated and
frightening desires to be cared for has probably experienced the profound disbelief engendered by such an attempt to counter one of the core assumptions of legal thought. (The effect on legal-psychiatric tension of legal devotion to an adversary model is discussed in Chap. 8, Sec. II-B.)

b. “Worst foot forward” effect. The first professional contact most lawyers have with the medical and mental health professions occurs in their first year of law school class in torts, in which they are regaled with stories of general medical and psychiatric negligence that have ended up in the courts. Although this makes perfect sense from the point of view of legal pedagogy (one could hardly teach malpractice law by demonstrating the cases in which no grounds for suit exist), the cumulative effect is destructive of trust between the legal and medical/mental health professions. Lawyers, unless their attitudes are leavened by personal experience, are led to expect malfeasance, often of a gross sort, as the norm of psychiatric behavior.

Courses on law and mental health in many law schools often compound the “worst foot forward” effect. Although some such courses are cotaught by law professors and experienced psychiatrists or psychologists who can convey the complexity of clinical work and the need for a mutually sympathetic relationship between the psychiatric and legal systems, many are not. In either event, the casebooks used and the law review articles assigned again often focus on psychiatric incompetence or malevolence, and these frequently succeed in convincing idealistic students that only an aggressive attorney can truly assist the mental patient.

Even a teacher who presents the psychiatric perspective sympathetically is no guarantee against law students interpreting what they learn as evidence of the dangers represented by psychiatry. It has been pointed out that many of the most aggressive members of the mental health bar who initiated the great wave of mental health litigation of the late 1960s and 1970s were trained by those few psychiatrists, usually analysts, who began teaching courses in law and psychiatry in some of the best law schools. The mental health law reforms of the 1970s and 1980s represented, to some extent, the coming of age of their students, whose eyes were first opened to the real and potential abuses of psychiatry in those pioneer courses.

c. Rights versus needs. The law’s role in settling disputes between parties requires it to be concerned with defining the legitimate rights that each party may express and with assigning priority when those rights come into conflict. The law is so concerned with adjudicating rights that it often neglects to consider the needs of the opposing parties (see Chap. 3, Sec. III-B-4). In most cases, this neglect is not fatal, because the rational exercise of rights is usually designed to satisfy needs. But the lack of attention to needs becomes crucial when one of the parties in question has lost the capacity to use his or her rights in that way, that is, when the expression of rights conflicts with the individual’s basic needs (see Suggested readings, Stone).

A simple example of this situation arises when a psychotic individual is hospitalized, whether voluntarily or involuntarily, for treatment. At that point, his or her needs are for the development of a trusting relationship with a capable professional who administers efficacious treatment. To the extent that the individual’s rights, whether the right to freedom, the right to due process, or the right to privacy, interfere with those needs, as by preventing hospitalization, creating an adversarial posture with the therapist, or allowing medication to be refused, the conflict referred to arises.

The law, at least in the academic environment that many law students experience, tends to focus heavily on rights; the mental health professions tend to concern themselves almost exclusively with needs. Given the democratic nature of our system, in which the limitation of the individual’s rights cannot be countenanced without convincing benefit, and even then never arbitrarily, it is clear that some accommodation must be reached between those who advocate unlimited rights and those who advocate exclusive emphasis on meeting needs. But the tension between the two produces much friction across the law-psychiatry interface.

3. Effects of Antipsychiatric Literature

The popular and academic literature of the last 70 years that has challenged most aspects of psychiatric practice also affects lawyers’ attitudes. These works range from the classic descriptions of the effects of long-term hospitalization to books that question whether mental illness actually exists, to works that challenge the basis for psychiatric diagnosis (maintaining that it is no more
than a culturally determined label for deviance) and the need for psychiatric treatment (describing mental illness as a state of consciousness superior to mundane “normality”) (see Suggested Readings, Dietz). Movies depicting gruesome scenes in psychiatric hospitals, such as the administration of electroconvulsive therapy without anesthesia or the effects of lobotomy, or portraying sympathetic young people as victims of psychiatric intervention, further heighten the sense that psychiatry is a brutal and sinister agent of the state that seeks to enforce conformity at the expense of the individual’s freedom. Real abuses have also been revealed, as in exposés detailing deaths and injuries associated with seclusion and restraint.

These works are less prominent now than they were 3 or 4 decades ago, when they were staples of college sociology and psychology courses. Many attorneys, however, still view psychiatry through lenses tinted by the accounts of Szasz, Laing, Goffman, and the other “antipsychiatrists.” This may be even more true of law professors, whose skepticism of the effects of the mental health system may be passed on to their students. Law students, of course, are particularly alert to evidence of such abuses, which these works allege to be commonplace in the practice of psychiatry, because the law profession has always seen itself as the means by which the oppressed can remedy their situation. Although some real abuses existed and were the basis for much of the antipsychiatric literature, the impression made on many students who are exposed only to this side of the issue is that such abuses are universal. If one assumes that contact with psychiatry is inevitably harmful, it is only a short step to the further assumption that everything possible should be done to limit its scope and powers. Psychiatry’s relative passivity in countering such notions in the mass media has meant that many of the litigators have had little chance to temper their ideas about psychiatry with any sense of the good done on behalf of the mentally ill by psychiatrists and other mental health workers.

4. Second-Generation Legal Advocacy

Notwithstanding the effects of the antipsychiatric literature, it seems clear that there has been a shift in the attitudes of many lawyers toward the mental health professions, including some of the most radical and aggressive members of the mental health bar. Several reasons for this more positive approach to psychiatry exist, including personal experiences that lawyers and their family members have had with psychiatric treatment. However, the most important reason for the change may be that the successes of the early litigation designed to limit the scope and power of institutional psychiatry have clearly not had the desired dramatic effects. Although it may be more difficult to commit and treat mentally ill persons, only the most hard-hearted of advocates would claim that homeless mentally ill people living on the streets have truly benefited from the change. It has become apparent to many mental health attorneys that it is not enough to state, as a matter of law, what cannot be done to persons with mental illness; if their needs are to be met, one must also establish what must be done for them.

Legal advocates who are part of this self-described “second generation” thus pay increasing attention to finding ways to meet some of the needs of the severely mentally ill. They battle for entitlements to disability payments, health insurance, and community care. They oppose restrictive zoning provisions that limit the development of community-based housing. They create innovative programs to find long-term housing options. Mental health professionals and the mental health bar agree on the importance of this type of advocacy. Legal academics have described an approach to mental health law that they characterize as “therapeutic jurisprudence,” arguing that law should be designed so as to maximize its positive impact on patients. The possibility of more common interests bodes well for the prospect of harnessing mental health and legal energies in tandem on behalf of people with mental illnesses.

B. ROLE OF THE LAWYER IN THE MENTAL HEALTH SYSTEM

Despite the lack of trust that often pervades relationships between lawyers and clinicians (and the effect of many clinicians’ unfair stereotyping of all lawyers as intrusive, uncaring, money-hungry troublemakers should not be forgotten as a contributing factor), it is clear that lawyers have an important role in the functioning of the mental health system. Patients and therapists often find themselves confronting situations in which legal assistance is indispensable.

1. Situations in Which the Patient Needs a Lawyer

a. Situations related to psychiatric care. The day has passed when a patient could move from an emergency or voluntary hospitalization to an indefinite involuntary commitment without both a judicial hearing and legal representation at that hearing. If the patient is unable to afford an attorney’s fees, an arrangement is made for a public defender or the equivalent to be available to the patient at no cost. Beyond this minimal guarantee of representation at commitment hearings, however, patients may face a variety of situations in which a lawyer’s advice would be helpful to them, but one is not automatically provided. Involuntary patients may wish to challenge the basis for their commitment by means of a writ of habeas corpus, either because they believe that their mental status has improved since the initial hearing or that their representation at that hearing was inadequate. (The latter, although infrequently a grounds for a second hearing, is all too common an occurrence in many publicly funded defender systems.) Patients may wish to object in court to involuntary or improper treatment, or both, or to object to the hospital conditions. If family members have filed a petition to have the patient declared incompetent, the patient may wish to oppose that motion.

b. Situations not directly related to psychiatric care. The status of a psychiatric patient confers no immunity from the varied exigencies of life that lead to legal entanglements. In fact, given the instability of their lives, psychiatric patients may be more likely than most to require help with separation or divorce proceedings, child custody actions, eviction hearings, and civil damage suits. Pending criminal charges or the fear that such charges will be filed may also be associated with mental illness.

Additional problems often arise as a result of mental illness, without being directly related to the treatment setting. These include establishing entitlement to welfare, Social Security (and its many permutations), Medicaid, Medicare, subsidized housing, vocational rehabilitation programs, and other social benefit programs; arranging for the disposition of the patient’s assets while the patient is hospitalized; opposing actions taken in the patient’s absence by family, friends, or business associates that might be to the patient’s financial detriment; and arranging for the temporary care of dependent children, while assuring that they are not permanently removed from the patient’s care. These are only the most common of the many situations, including many bizarre and unpredictable ones, that are related to patienthood.

c. Handling requests for legal assistance. Inpatient clinicians should consider it their obligation to help patients in obtaining legal assistance should the need arise. Failing to act often ensures that the patient’s rights will not be advocated because many inpatients are unable to take any steps toward obtaining legal help beyond discussing the matter with the clinical staff. Even when the proposed legal action is not considered by the therapist to be in the patient’s best inter-ests, he should consider basic rights before clinical sensibilities. All citizens deserve legal representation; to decline to aid an inpatient in obtaining representation is, effectively, to deny him or her that right.

Of course, the situation is more intricate when the patient desires a lawyer’s help to oppose hospitalization or treatment that the clinician believes is essential or to sue either the therapist or the hospital. As difficult as it may be for the clinician, the obligation remains the same: the patient is entitled to representation and should be referred appropriately.

With outpatients, the situation may be even more complex. For a variety of therapeutic reasons, therapists might not want to become directly involved in assisting the patient to obtain a lawyer. However, when it is clear that the patient is not able to obtain his or her own representation, the clinician should, at the least, be sufficiently knowledgeable to refer the patient appropriately.

d. Resources available

i. Private resources. It is usually best for the patient to be represented by a private attorney when financially feasible. Attorneys working directly for their clients do not face the disincentives to devote sufficient time to the preparation of their cases that often stymie public defenders or legal aid attorneys. A check with the patient’s friends or family may reveal that the patient has a private attorney who regularly handles her family’s affairs. Failing that, a call to the local bar association should produce a list of lawyers with special knowledge in the particular area in question.

Referring the patient to friends or acquaintances of the therapist is problematic; although it may be one way to ensure that he gets good representation, it may also create the appearance of impropriety (i.e., that the clinician may be rewarded in some way for “steering” clients to the attorney) and may leave the patient uncertain about the crucial questions of confidentiality and conflict of interest. In general, it is probably better to avoid referrals to friends.

ii. Protection and advocacy agencies. Protection and advocacy agencies (P&As) have been established with federal support in all states. Based on a similar program for persons with intellectual disabilities, the P&As are charged with representing the interests of persons with mental illness who are receiving care in a broad array of institutional and community facilities. Representation may relate to the conditions of care or access to services, including welfare, disability, and other entitlement programs. The lawyers, paralegals, and others who work for these programs can negotiate on behalf of patients, bring legal actions for them, or address broader issues through class action suits.

Although the potential usefulness of the P&As to patients is clear, the programs have not always met expectations. They are most effective when the main strategy is negotiation, rather than litigation. P&As that rely on litigation to achieve their goals, or otherwise assume a hostile posture toward providers, only worsen the situation. Legal harassment is an added inducement to mental health professionals and administrators to abandon understaffed public and publicly supported facilities. Those who remain may feel that their hands are tied in trying to provide appropriate care. To the extent that advocacy only results in shifting limited funds from one underserved group to another, its net effect is minimal; to the extent that a large number of persons are deprived to benefit a few, its net effect is detrimental. Efforts to assess the overall impact of P&As are clearly desirable but have not yet been carried out systematically.

iii. Other nonprofit resources. For patients without sufficient funds to hire a private attorney, another possible recourse is to the widespread network of privately or federally funded legal agencies. These have various names in different cities but are often called the Legal Aid Society or Neighborhood Legal Services. If a search of the telephone book proves unavailing, a call to the local bar association should produce the appropriate number. Some agencies do not handle criminal cases but should be able to make a referral to a public defender group to suggest a means of having a court appoint a lawyer.

Another set of resources that should not be overlooked is law school legal aid programs. Designed to provide hands-on experience for second- and third-year law students, these programs may handle all types of cases or may be restricted to a specialized area such as civil, criminal, prison, or mental health law. The students are supervised, although sometimes only loosely, by experienced attorneys and often make up in enthusiasm what they lack in expertise. A caveat: this is not the appropriate referral for complicated or potentially lengthy litigation.

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