Mental Illness, Due Process and LawyersAuthor(s): Allen HarrisSource: American Bar Association Journal, Vol. 55, No. 1 (JANUARY 1969), pp. 65-67Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25724651 .

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Mental Illness, Due Process and Lawyers

by Allen Harris

Medical science has come a long way in treating the mentally ill, and many patients in mental

hospitals can now hope to return to the community. However, some

people still erroneously or

unnecessarily are being committed to and retained in mental institutions against their wills.

Only a lawyer can properly protect these individuals, as more than half of the states have now

recognized in requiring that free counsel be made available to

indigent persons against whom

involuntary commitment proceedings are brought.

T\ URING THE LAST quarter of a century, due process of law has

become a more meaningful part of in

voluntary mental commitment proceed

ings and proceedings concerning invol

untary retention within mental institu tions. For example:

In 1940, the United States Su

preme Court held in Minnesota v. Pro bate Court of Ramsey County, 309 U. S. 270, 276-277, that due process is re

quired in judicial proceedings that in volve persons alleged to be mentally ill.

By mid-1966, twenty-nine states1

required that free counsel be made available to indigent persons against whom involuntary mental commitment

proceeding are brought. In May, 1966, the New York

Court of Appeals ruled that due proc ess and equal protection of the laws re

quire that an involuntarily held mental

patient be afforded the assistance of

court-appointed counsel in a proceed

ing brought to determine whether he should continue to be so incarcerated. I represented the interests of the New

York Civil Liberties Union in this

case, and the court adopted my reason

ing in its decision.2 Also in 1966, the New York Court of Appeals decided that in a proceeding brought to deter

mine his mental condition, a person is entitled to the assistance of a court-ap pointed psychiatrist.3

In 1966, the United States Su

preme Court held in Baxstrom v. Her

old, 383 U. S. 107, that an allegedly mentally-ill prisoner whose sentence

has expired is entitled to all the rights and privileges of a civil mental patient, while in Pate v. Robinson, 383 U. S.

375, it held that a criminal defendant whose competence to stand trial is in

doubt cannot "knowingly" waive his

right to a judicial hearing on the ques tion by failing to demand one.

Equally important due process devel

opments affecting mental institutions themselves have been taking place and could result in the expansion of the

rights of patients incarcerated within them. For example:

New York's mental health law now provides for a Mental Health In formation Service.4 The attorneys of this service periodically review for the court the cases of all involuntarily held

patients in order to prevent the over

looking of a patient who should be re

leased,5 and they also are available to

the patient and his relatives.6 A decision of the United States

Court of Appeals for the District of Columbia Circuit, written by Chief

Judge Bazelon, held that the District of Columbia's mental health statute pro vides a mental patient with a right to

treatment cognizable in habeas cor

pus.7

1. Ross, Commitment of the Mentally III: Problems of Law and Policy, 57 Mich. L. Rev. 945, 971 (1959). Since this article was

written, the following jurisdictions have made the appointment of counsel in these

types of proceedings mandatory: D.C. Code ? 21-543 (1967) Me. Rev. Stat. Ann. tit. 34, ? 2334 (1964); Tenn. Code Ann. ? 33-603 (e) (Supp. 1965) ; Utah Code Ann. ? 64

7-36 (G) (1968) (amended to remove dis cretion and require judge to appoint counsel when patient or others do not provide one) ; Wyo. Stat. Ann. ? 25-60 (g) (1967).

2. New York v. Stanley, Director of Rock land State Hospital, 17 N.Y. 2d 256, 217 N.E. 2d 636, 270 N.Y.S. 2d 573 (1966).

3. New York v. La Burt, 17 N.Y. 2d 738, 217 N.E. 2d 31, 270 N.Y.S. 2d 206 (1966), cert, denied, 385 U.S. 936 (1966).

4. N.Y. Mental Hygiene Law ? 88

(McKinney Supp. 1968-1969). 5. Geller, The New Mental Health Law,

Part II, New York Law Journal, June 7, 1966, at 4.

6. 11 Judicial Conference of New York 78-83 (1966).

7. Rouse v. Cameron, 373 F. 2d 451

(1966). Also see Note, The Nascent Right to

Treatment, 53 Va. L. Rev. 1134 (1967), and

Birnbaum, Some Comments on "The Right To Treatment", 13 Archives of General Psychiatry 34 (1965).

January, 1969 Volume 55 65

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Lawyers and the Mentally III

All of these developments have one obvious factor in common: The role that the lawyer played in each of them in protecting the rights of the incarcer ated mental patient.

In addition to court work, lawyers were responsible for investigations such as the one conducted by the American Bar Foundation8 and the one

conducted by The Association of the Bar of the City of New York and Cor

nell Law School,9 both of which stimu

lated improvements in many states

with respect to the civil rights of incar cerated mental patients.

The key position occupied by the

lawyer in regard to proceedings under taken to determine sanity has long been recognized by the American Civil Liberties Union. Policy No. 225, which deals with the civil commitment of per sons alleged to be mentally ill, reads in

part as follows:

A jury trial to determine the need for confinement should be mandatory

whenever the patient or his agent re

quests one. An indigent patient should

be provided by the court with the as sistance of a psychiatrist as well as

legal counsel. A person, once commit

ted, is entitled to periodic re-examina

tion by a court, with the assistance of

an attorney, with a view to his release

when his condition so permits. The

burden of proving the necessity for

continued detention then rests with the

hospital.10

The rights of the involuntarily held mental patient can never be fully pro tected unless he is represented by a

lawyer who carefully tests each element of the case presented against his al

legedly mentally ill client. Nevertheless,

many distinguished members of the medical profession contend that an ad

versary proceeding which tests the evi dence of insanity can result in irrepara ble damage to the patient. An out

spoken advocate of this position is Dr. Henry A. Davidson, whose article entitled "Mental Hospitals and the Civil Liberties Dilemma"11 has re

ceived wide circulation. The following paragraph from that article points up Dr. Davidson's "dilemma":

On the other hand, we do impose too many restrictions on mental patients.

I'm in favor of more open wards, of

having men and women eat in the

same dining room, of having visiting hours every day in the year, of giving every patient unrestricted access to the

telephone and the mailbox unless he

harms others by this, of allowing every

patient to call on a lawyer, to demand

a writ of habeas corpus, and to ask for

periodic reviews of his case.12

One horn of Dr. Davidson's dilemma is his apparent distaste for the protec tion of patients' rights by lawyers be cause it will harm the patients. The other horn is his admission that only lawyers can insure that patients' rights are protected.

Dr. Davidson offers no alternative in his article to protect a patient's rights other than the hospital administration, which must be considered an interested

party because if it is in favor of the commitment or retention of the pa tient, it must be adverse to the position of the patient who wants his freedom. On the other hand, the lawyer's only duty is to protect the patient's rights. He does this by testing the validity of the hospital administration's position through, among other things, cross-ex

amination, "the principal and most ef ficacious test for the discovery of the truth".13

In Missouri, the protection of a per son coming within the purview of the state's mental health statute rests di

rectly upon counsel. For example: 1. If the respondent wishes to test

the decision of the probate court to commit him involuntarily, he can ap peal to the circuit court and request a

trial de novo before a jury.14 Certainly, in order for the respondent to present his case to the jury adequately, he will

require the services of counsel. 2. Missouri law gives the incarcer

ated mental patient the right to corre

spond with the general public, subject to hospital rules and the needs of his

medical welfare.15 Certainly, in order for the patient adequately to challenge the hospital rules and the alleged needs

of his medical welfare that the institu

tion relies upon to curtail his corre

spondence, he will require the services

of counsel. Counsel may test the insti

tution's position by charging that they are being arbitrary in his client's case

and, thus, the institution will be called

upon to justify its position. My emphasis on the importance ot

representation of mental patients' in

terests does not mean that I am una

ware of the medical advances that have taken place in the last few years in re

gard to treatment.

Over ten years have elapsed "since the introduction of pharmacologic treatment of psychotic reactions", Dr.

C. B. Scrignar, an assistant professor of psychiatry at Tulane University has written. He says of this treatment:

Although not panaceas, appropriate

psychotropic drugs have had an indeli ble impact on psychiatric treatment; acute intensive treatment within state

hospitals has become commonplace.

Despite doubling of admissions to state mental institutions during the past

decade, these drugs have undoubtedly

kept the census of state mental hospi tals from increasing and in many in

stances have caused it to decrease.

Many patients with protracted psy choses unresponsive to previous forms

of treatment can now be returned to

community life, and new patients can

be treated more effectively and more

rapidly. A schizophrenic patient with signs of hallucinations and delusions

on admission now can be discharged within thirty to ninety days... .16

In its April 6, 1968, issue, The Sat

urday Evening Post followed up its more than ten-year-old exposure of mental hospitals with an article enti

tled: "Inside The Insane Asylum". This article states that, among others,

8. American Bar Foundation. The Men tally Disabled and the Law (1961).

9. Special Committee on Commitment Procedures of The Association of the Bar of the City of New York and Cornell Law School, Mental Illness and Due Process (1962).

10. The Policy Guide of the American Civil Liberties Union, Policy No. 225 (1966).

11. Davidson, Mental Hospitals and the Civil Liberties Dilemma, 51 Mental Hy giene 371 (1966).

12. Id. at 379-380. 13. Richardson, The Law of Evidence ?

500 (8th ed. 1955). 14. Missouri v. Mullinax, 364 Mo. 858

(1954). 15. Mo. Rev. Stat. ch. 202, ? 847(1)

(1953). 16. Scrignar, Tranquilizers and the Psy

chotic Defendant, 53 A.B.AJ. 43 (1967). Also see Buschman & Reed, Tranquilizers and Competency To Stand Trial, 54 A.B.A.J. 284 (1968).

66 American Bar Association Journal

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Lawyers and the Mentally III

Dr. Liam O'Brien, of State Hospital No. 2, located in St. Joseph, Missouri, is devising new methods of treatment for the mentally ill. In six months, with the help of an increase in psychi atric staff from three to sixteen doc

tors, Dr. O'Brien reduced St. Joseph's bed population from 2,000 to 1,450.17

However, even though much medical

progress has been made, modern psy

chiatry has a long way to go to be able to state unequivocally in every case

when "a man's freedom is too danger ous or when society should begin mak

ing decisions for a mentally ill per son".18 Until psychiatry can do this, we need lawyers to protect patients' rights.

Another reason that the alleged men

tal patient needs legal representation is that "in the vast majority of cases, civil commitment is instigated by a

family member, for the purpose of re

moving another member from the fam

ily circle".19 In New York v. Stanley, supra, the allegedly mentally ill person was incarcerated as a result of action

taken by his mother and father. Be cause of the animosities that usually come to the surface when one family

member undertakes to have another

family member involuntarily commit ted to a mental institution, justice is

usually best served in these cases by subjecting the petitioning family mem

ber to a searching cross-examination.

As for the dimensions of the mental health problem in the United States

today, the 1968 United States Book of Facts, Statistics and Information re

ports that at the end of 1964 there were 503,879 resident patients in the nation's mental hospitals.20

Interestingly, the average age of mental patients has been declining. The Saturday Evening Post article pre

viously cited states:

While the older patients are moving

out, admission records show, more and

more young people are coming to the

hospital. For example, bed patients 35

to 44 years old?the age group in

which most of the schizophrenics are

found?have been decreasing by three

percent a year, but at the same time

patients under 15 have increased by 16

percent a year, and 15-to-24-year-olds

by six percent.21

The declining age of mental patients has a special significance in view of the efforts being made to turn involun

tary patients into voluntary patients so

that various procedural safeguards ap

plicable to involuntary patients can be avoided. This is particularly true in New York state, where state hospitals must periodically demonstrate to the court the need to confine "involuntary" patients, but not "voluntary" pa

tients.22 Because young persons usually are more susceptible to persuasion than are older persons, there is a

greater danger that they will be more

easily induced to commit themselves

voluntarily to mental hospitals unless their rights are carefully explained to them by lawyers.

Moreover, we should not forget that, from time to time, persons are still

being improperly committed against their will to mental hospitals. In this

connection, consider these two cases:

Mr. G. was arrested in New York

City in 1965 on a charge of passing bad checks. At his arraignment, he

protested vigorously that the police had arrested the wrong man. Too vigo

rously, as it turned out; Mr. G. was hustled to the Bellevue prison ward, where two psychiatrists declared him to be mentally ill. He was transferred to a state hospital where he was diag nosed as a dangerous psychotic, for he believed the police, the district attor

ney and the hospital were trying to

frame him. It was only after a private attorney, retained by his family in Cal

ifornia, demonstrated on a writ of ha beas corpus that, indeed, the bad

checks were still being passed by the real wrongdoer while Mr. G. was in the

hospital that he was released.23

Mrs. H. was placed in a private hos

pital on the application of her hus

band, supported by two doctors. The

hospital began a course of shock treat

ments and refused to discontinue the treatments although Mrs. H. sued out a

writ of habeas corpus. She was able to

retain a private attorney to represent

her on the writ and was released by the

hospital two hours before the writ

hearing.24

In 1215, Magna Charta declared: No freeman shall be taken, or im

Allen Harris, a professor at the Law School of the University of Missouri

?Kansas City, is director of a legal assistance to inmates clinic which serves inmates at the United States Medical Center for Federal Prisoners located at Springfield, Missouri. He is a graduate of New York University (A.B. 1949) and Columbia University School of Law (LL.B. 1954).

prisoned, or outlawed, or exiled, or in

any way harmed, nor will we go upon him nor will we send upon him, except by the legal judgment of his peers or

by the law of the land.

These words can only come alive and have meaning if they are imple

mented by a diligent lawyer on be half of a person whose freedom is in

danger of being taken away by the

power of the state.

17. Martin, Inside the Insane Asylum, Sat urday Evening Post, April 6, 1968, at 32.

18. Note, Civil Commitment of the Men

tally III: Theories and Procedures, 79 Harv. L. Rev. 1288, 1297 (1966).

19. Testimony of Dr. Thomas S. Szasz, Pro fessor of Psychiatry, Upstate Medical Center, Syracuse, New York, before the Subcommit tee on Constitutional Rights of the Commit tee on the Judiciary, United States Senate, 87th Cong., 1st Sess., 252 (1961).

20. United States Book of Facts, Statis tics and Information 80 (1968).

21. Martin, supra note 18, at 38. 22. In re Buttonow, 276 N.Y.S. 2d 771

(Sup. Ct. 1966). 23. New York Civil Liberties Union,

Prospectus for Study of the Administra tion of the Law Regarding Persons Al leged To Be Mentally III 1 (1966).

24. Id. at 2.

January, 1969 Volume 55 67

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