Brief Lecture Notes for Unit 2
revised 01/26/07
Introductory Remarks
Because many of the issues explored in this unit are matters of value rather than matters of fact, it's useful at the outset to make sure that you clearly understand what is meant by the fact-value distinction.
When we think of facts, we think of something observable, and often (not always) something that can be determined objectively, even scientifically (since science is a form of systematic formal observation). Of course, there are many facts that can't be determined in that way, the most obvious being historical facts. This is because these matters, even though in the realm of the observable, are outside of the universe of discourse of the scientific method (largely because they are not replicable). (Science can only deal with matters that are both empirical and replicable, and many important considerations fall outside one or both of these parameters.)
When we think of values, we think of something that is no less real and no less important, but that is by definition unobservable. As a result (at least in my view), science as such can't provide us with values. Wherever else we may derive values from (religion, philosophy, social or political consensus, or the unexamined Zeitgeist), we can't derive them from science as such... at least, that's my view. (Some scientists, in fairness, disagree with me about that.) But that doesn't mean that all values are necessarily "subjective" (in the sense of being mere, arbitrary preferences) or that they are purely of human origin. (That question represents a major philosophical fault line in our culture: many, including myself, believe in the existence of genuinely transcendent moral absolutes, while many others do not. We won't go there in lecture, except to respect both views.)
This unit, then, deals with some important value issues related to the practice of clinical psychology. The thread that links all of them is the fact that these issues involve the interface between clinical psychology and the law. As a catalyst to encourage you to think for yourself about these issues in an informed manner, I've sprinkled my own ruminations and speculations throughout these notes. My thoughts don't necessarily carry more weight than anyone else's, but since they're mine, I naturally love them.
Issue 1: Civil and criminal commitment
Conflicts between the welfare of the individual (civil liberties) and the welfare of the individual (public protection) are commonplace when abnormal behavior issues are involved. It is important to think deeply and carefully about how to balance these two kinds of legitimate but often competing concerns. If the state is going to assert its authority over a mentally ill or abnormal individual, on what grounds can it legitimately do so? What about individuals' right to act in an abnormal behavior? At what point, and on what basis, does the state have a defensible compelling interest in regulating individuals' behavior?
In Wisconsin as in most states, involuntary commitment to inpatient psychiatric treatment is permitted (a) only when the individual is judged to be of imminent danger to self or others, (b) only for a limited period of time (for observation) prior to formal adjudication including due process protections. This poses some acute philosophical problems. Our way of life generally involves a tightrope walk across an abyss, between the counterbalancing errors of anarchy and totalitarianism. The difficulty of finding and maintaining the optimal balance point is well illustrated by the issue above.
Wisconsin law permits involuntary civil commitment only when a person is deemed to be (for all practical purposes) homicidal or suicidal. In the case of the evidently homicidal individual, I don't have too many qualms about the state stepping in... I'm not that interested in having my head blown off to preserve the civil liberties of a crazed gunman. The case of suicide is more difficult in my view, however.
While I think that, from the point of view of the individual, suicide is always a mistake -- a permanent solution to a temporary problem -- I'm rather reluctant to see the state step in to deprive someone of their civil liberties simply because they might commit suicide. I'd certainly use all the techniques of rational moral suasion at my disposal to try to convince a suicidal person not to go through with the act. I might even be quite willing to engage in some manipulation and emotional coercion (up to a point, anyway). But both of those behaviors (which still respect the autonomy and dignity of the individual) are quite different from the state stepping in. Frankly, I'm not sure what I think about this one.
One problem, of course -- as outlined in your text -- is that the general standard in our legal system is that legal penalties only apply after the fact. (How would you feel if you were incarcerated on the grounds that the state thought you might steal something?) But involuntary commitment is an inherently before-the-fact action of the state: "imminent danger" means, in practice, a statistical prediction of risk. Even if the prediction were infallible, the state is still acting in advance of an objectionable act; but, still worse, in reality the prediction is never perfect (remember the distinction between Type I and Type II prediction errors discussed in Unit 1). Some people who would in fact not have committed suicidal or homicidal acts end up losing their civil liberties anyway; and that strikes me as unconscionable.
So, in sum, I might not do away with the notion of involuntary commitment altogether. But I'd say that no level of hedges, protections, checks and balances, and due process requirements are too great. After all, just because the state (or any other individual or entity) has a weapon at its disposal doesn't mean it has to be used, or used often. As a general rule of thumb, it's a bad idea to use a nuclear weapon to kill a fly. It works, but the side effects are terrible.
Commitment often involves the "psychiatrization" of behavior (interpreting even ordinary actions in clinical terms, which is often inherently distorting), deindividuation (treating individuals like commodities or impersonal entities rather than unique persons), and a retrospective reconstruction of one's life history (to gain release, patients have to appear at least on the surface to have bought into the psychiatric model). How might institutional psychiatry be altered to avoid these problems, yet provide a safe haven for those who need it?
Sociologist Erving Goffman defines mental institutions as so-called total institutions, organizations that attempt to control all aspect of a person's environment and choices. (Can you think of some other examples of total institutions?) What are some of the differences you can imagine between total institutions and other, more typical social institutions: for instance, as related to the question of privacy or the right of selective self-disclosure? What impact do these differences likely have on the career of mental patients? Goffman argues that while mental institutions are designed to help people become healthier, in many cases they actually promote "sicker" behavior (at least in the short run). Can you think of some reasons why this might be so? What, if anything, could inpatient facilities do about this problem? Why do you think such steps are usually not taken?
Note that, in an attempt to come to terms with the dark side of total institutions, our culture has engaged in a pendulum swing between the extremes of lengthy institutionalization and radical deinstitutionalization. (The pendulum swing follows the general outlines of the famous Strauss-Howe saecular cycle; if that is not a familiar concept to you, check out the hyperlink. Deinstitutionalization is likely during Summer and Autumn, reinstitutionalization during Winter and Spring. As always, our culture is better at extremes than at finding a rational balance.) Both strategies, however, can come at a terrible price. The former can easily degrade into custodial care that ends up serving, not the individual, but the organizational efficiency of the institution (most "total institutions" in Goffman's sense end up, sooner or later, going down that road); inpatient care is not benign, and can sometimes make people worse, in part by stripping them of their dignity and any reason (and/or opportunity) to take responsibility for their own actions and choices. But the latter can be indistinguishable from "dumping" people out into a cold, uncaring world, without any supportive resources to help them to make it on their own. This is, indeed, a "Hobson's choice." What solutions, if any, can you devise?
Issue 2: The NGRI defense
Bear in mind that "insanity" is a legal, not a psychiatric, term. It has to do with the question of whether a person does nor does not (or, to what extent s/he has) diminished responsibility for her/his actions on the basis of some mental or emotional defect or deficit. Throughout the history of our legal system, at least four different tests have been applied in an attempt to differentiate the "sane" from the "insane" in this sense:
1. The M'Naghten Rule: Did the accused know the difference between right and wrong?
2. The Durham Rule: Was the behavior of the accused the product of a mental disease or defect?
3. The American Law Institute (ALI) Rule: Could the accused understand the law; and, did s/he have the psychological capacity to conform to it?
4. The Insanity Defense Reform Act (IDRA) Rule: Could the accused understand the law?
Consider the case of John Hinckley, Jr., who attempted to assassinate then-President Reagan in an attempt to impress actress Jodie Foster. He was found not guilty by reason of insanity (NGRI) by a federal jury in 1982, in accordance with the (highly disputed and controversial) legal standard of that time. According to each of the four rules above, would he have been able to successfully enter a plea of NGRI?
In lecture, we'll take a look at another case study and attempt to apply these four jurisdictional tests to that situation. What problems, if any, do you see with the concept of diminished responsibility?
The question of whether the NGRI concept is a good or a bad idea takes us deep into the uncharted waters of correctional philosophy. Essentially, though, correctional philosophers have proposed four possible justifications for depriving convicted persons of their civil liberties: two of them (relevant to our purposes) are punishment (including the idea of deterrence) and treatment.
The punishment model sounds harsh, but (regardless of whatever other flaws it has, which it does) it has one clear virtue: it makes it clear that the deprivation of a criminal's civil liberties is always temporary, contingent. Once s/he has "paid the debt to society" that is owed, s/he is set free. The slate is wiped clean (more or less, of course, since the stigma of imprisonment remains; it makes for an awkward gap in a chronological resume, among other things). Of course, in some few cases (such as "life without parole" sentences), "temporary" means "limited to this earthly life", but that's an exception to the general rule. A person always has the hope of starting over afresh: and clear limits are set on how much punishment can be meted out.
The treatment model, in contrast, though it sounds (and may in fact be) humane in other respects, has one fatal flaw: it suggests the notion of purely indeterminate sentencing. Once a person is committed, not to a prison, but to a mental hospital for the "criminally insane", one's release is no longer a function of the calendar (time served), but of the whim of a clinician who has the power to say whether or not that person is "cured" or "rehabilitated". Since all known criteria by which such matters might be determined are fuzzy and subjective, the potential for abuse of the system knows no bounds. Doubtless most clinicians attempt to avoid those abuses. Yet power, like heroin, is inherently addictive. Those who use it invariably claim that they can stop whenever they wish. Yet they rarely, if ever, do.
In addition, while the concept of "diminished responsibility" sounds kind, it loses some of its luster if rephrased as "diminished dignity"... and since human dignity and human responsibility are flip sides of the same coin, that's really the case. To say that a person "can't help himself" is to say that he is not fully human. In some ways, this is worse than any prison sentence could possibly be. Many prisoners of conscience (e.g., religious or political prisoners) throughout history have emerged from their prison term with their dignity intact, even enhanced. How many psychiatric prisoners can say the same?
While the reality that mental illnesses can produce uncontrollable behavior needs to be addressed, in general I'm more in favor of the emerging "guilty but mentally ill" model that separates the question of legal guilt from the question of psychiatric health, and attempts to address each separately. Among other things, this avoids the problem of coerced mental health treatment under the guise of criminal sanctions.
Issue 3: Statutory limitations on the mental health profession
In Wisconsin, to use the term counselor, a person must be certified by the state, which involves the completion of an approved graduate (master's level) program as well as a 3000-hour supervised internship under the purview of a certified counselor or licensed psychologist. To use the term psychologist, a person must have a terminal (Ph.D. or Psy.D.) degree in clinical psychology and must pass a licensure exam. Psychiatrists have an M.D. degree. See hyperlinked material on careers in psychology. Also see this hyperlink for official statutory information on Wisconsin licensure.
Are these restrictions a good or a bad idea? Their rationale (on the surface) is that they protect the poor, weak, naive consumer from ill-trained charlatans: and there is in fact much to be said for this, since the social power inequity between customers of mental health services and providers of such services is often great, as is the potential for harm and abuse by ethically challenged people-helpers. So I don't necessarily think the state has done a bad thing, though they've shut out some great folks.
But there's another, darker side to the statutes: one could easily argue that their real purpose is one of turf protection, to keep supply-demand ratios where currently licensed counselors would want them to be. If you doubt this, ask yourself why a range of professions that seem to carry few if any risks to consumers are state licensed: in most states it's even illegal to braid hair without a license.
All in all, I think the statutes are reasonable (though frustrating to people who discover their rigidity after the fact): the moral for you is to decide early whether you want to work in the counseling field, and jump through the necessary hoops while you are young enough to do so. But statutes, like cancers, do have a tendency to metastasize: and of the passing of needless ordinances there is no end.
Study Guide
1. Discuss the balancing act between civil liberties and public protection. Under what conditions, and on what basis, might the state legitimately impinge on the individual's civil liberties?
2. In Wisconsin, under what conditions can an individual be involuntarily committed to inpatient psychiatric treatment? What difficulties do you see with this process?
3. Discuss the "moral career of the mental patient" in terms of such concepts as psychiatrization of behavior, deindividuation, and retrospective reconstruction. What are the major characteristics of total institutions?
4. Compare and contrast four legal tests of insanity (M'Naghten, Durham, ALI, IDRA). How do they differ with respect to application of the concept of diminished responsibility?
5. Discuss statutory regulations in Wisconsin with respect to careers in counseling and psychology.