Psychiatry and Constitutional Law

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PSYCHIATRY AND CONSTITUTIONAL LAW

New impositions of legal control in the last generation have transformed traditional relationships between providers and consumers of mental health services, cabining the power physicians historically exercised over the insane. Paradoxically, the new legal limits on psychiatrists developed in a period when novel psychotropic medication—veritable wonder drugs—at last provided bases for medical paternalistic authority. Psychiatrists complained that patients would miss out on needed treatment and "rot with their rights on."

The legal developments involve processes for civilly protecting or subduing the mentally impaired, processing them through the criminal justice system, recognizing their rights as psychiatric inpatients, and establishing for them programs of patient advocacy. Patient claims include rights to treatment; to refuse treatment; to the least intrusive alternative form of treatment; and to privacy, autonomy, liberty, information, communication, and protection while undergoing treatment. Mental health lawyers have elevated these claims to new constitutional doctrine, conveniently overlooking that many decisions recognizing them came from lower courts.

The constitutional values underlying these decisions have also found expression in other legal forms: legislative law reform, judicial interpretation of unresisting common law and statutes, and unfolding of state constitutional doctrine. Although not necessarily flying the U.S. constitutional flag, these legal developments are nevertheless based on constitutional values, such as liberty, privacy, due process, equality, and free speech. The principles invoked are not specific to mental health, but common to the modern judicial approach to protecting the vulnerable.

The Supreme Court has been slow to join these trends. In contrast to its behavior in the field of criminal justice, here the Supreme Court has followed reluctantly rather than lead. As with the rights of the criminally accused, the Court has recently retreated, leading to a development of state constitutional law.

A legislative revolution in civil commitment procedures received constitutional underpinnings in Addington v. Texas (1979), which mandated a standard of "clear and convincing" evidence for the fact-finding on which commitment is based. Commitment through the criminal process was limited constitutionally by the holding that incompetency to stand trial can justify incarceration only for a reasonable period during which restoration of trial capacity is foreseeable.

The Constitution seems to impose little constraint on changes in the best-known rule in the field of psychiatry and law: the insanity defense to criminal prosecution. The state may redefine the defense and even require the defendant, rather than the prosecution, to bear the burden of proof beyond a reasonable doubt. The "least restrictive alternative" criterion for involuntary treatment, proclaimed by many lower courts, has not been adopted by the Supreme Court.

The Court has also been hesitant about a right to refuse treatment, although recognizing in theory a liberty interest in avoiding unwanted administration of antipsychotic drugs. In washington v. harper (1990), it refused to hold that a prisoner had the right to refuse such treatment, taking into account that he was confined and determined to be dangerous to himself or others and that the treatment was in his medical interest. Nor was a prior judicial hearing required because the Court believed his interests would be better served by allowing medication decisions to be made by doctors rather than judges. A number of state courts have nevertheless recognized a right to refuse treatment based on common law protection of bodily integrity or state constitutional guarantees of privacy.

The right to treatment and inpatient rights have fared no better in the Supreme Court than has the right to refuse treatment. Ruling on an involuntarily committed, developmentally disabled person, Youngberg v. Romeo (1982) held his constitutionally protected liberty interests included minimally adequate training, as well as reasonable safety and freedom from undue bodily restraints. Presumably, the involuntarily committed mentally ill possess similar rights. But the Court eviscerated such rights by declaring that the Constitution requires only that "professional judgment" be exercised, with the courts to show deference to that judgment. "Deliberate indifference" to an inpatient's serious psychiatric needs might perhaps violate the Eighth Amendment by analogy to a holding on prisoners' medical needs.

The new legal limitations on psychiatric power seem confining only by contrast to the vast authority traditionally exercised. The mentally ill are still subject to governmental power not exercised over the healthy, on rationales of paternalism as well as protection of others. The patients' rights movement points out the hypocrisy of claims that governmental power is exercised for the patient's own good if adequate treatment is not guaranteed and if "acquittal" on the ground of insanity can result in loss of liberty for a longer period than conviction. And psychiatrists still are permitted to testify as experts, giving opinions on matters beyond their actual scientific competence, such as predicting dangerousness on the basis of clinical interviews.

The psychiatrist-patient relationship, a central focus for therapists, has been largely overlooked in constitutional case law. When the doctor is double agent for both patient and prosecutor, a Miranda-like warning is required before a psychiatrist examines a convicted defendant for a death penalty hearing. Psychiatric assistance itself can be a constitutional right: an indigent defendant must have access to a psychiatrist on a showing of need to prepare his or her insanity defense.

Psychiatric condition is generally not central to an individual's constitutional status. Neither psychiatric patients as a group nor mental illness as a trait has yet been held to invoke specially solicitous judicial protection from elected legislatures, which is labeled heightened scrutiny under the equal protection clause. In cleburne v. cleburne living center, inc. (1985) the Supreme Court explicitly said it would not extend heightened scrutiny to the developmentally disabled. The Court nevertheless did just what it said it was not doing, on reasoning equally valid for the mentally ill. (Indeed, five Justices repudiated the whole theory of three "tiers" of equal protection scrutiny.) Psychiatric condition nevertheless has some irreducible effect on legal status: the Eighth Amendment prohibits the execution of the mentally incompetent. A finding of initial mental illness is insufficient to justify indefinite confinement; o'connor v. donaldson (1975) requires findings of both current mental illness and dangerousness.

Constitutional law has been little affected by psychodynamic perspectives, even though twentieth-century American culture has been heavily influenced by psychoanalysis, whose models of the mind differ significantly from the law's traditions. Some cases contrast "the law's" model of the mind, involving free will and choice, with psychiatry's model, supposedly deterministic; these courts conclude that judges must disregard such psychiatric ideas. A handful of judges openly ask whether a model of the mind must be assumed for constitutional purposes. One of the law's most-cited "unreported" cases, Kaimowitz v. Dept. of Mental Health (1973), said that the first amendment, must protect the individual's right to generate ideas if it is going to protect the right to communicate those ideas. But in Mills v. Rogers, although the Supreme Court cited Michael Shapiro's germinal work on the topic, it declined to rule on this point. Freedom of thought (and implicitly of emotion) was recognized in stanley v. georgia (1969), which declared a First Amendment right to personal possession of obscene materials in the home. Washington v. Harper (1990) recognized that it is a substantial interference with a person's liberty interest to alter his brain's chemical balance to affect his cognitive process. And Justice louis d. brandeis's famous dissent in olmstead v. united states (1928) had spoken of protecting throughts and emotions as well as beliefs.

In criminal law, the Court early had relied implicitly on a free-will model of the mind to hold a confession involuntary, based on the defendant's insanity at the time he or she confessed rather than on police coercion. This focus on the suspect's state of mind suggested that free will is a constitutional prerequisite for voluntariness. But the Court subsequently retreated from that approach.

A central lesson of psychoanalysis is that much of our mental functioning is largely inaccessible to consciousness, while nevertheless affecting our conscious thoughts, feelings, and behavior. Psychiatrists are therefore used to looking for unconscious intents and unconscious, often symbolic, meanings. The Supreme Court has recognized that actions and institutions can have not only intended but unintended psychological effects with constitutional significance, as in the famous footnote 11 of brown v. board of education (1954). But the Court has not yet recognized the argument by scholars that government officials can violate the Constitution by unconscious discrimination, reflecting not overt hatred or contempt but unconscious conflict and ambivalence, aimed not only at ethnic groups and women but also at the poor and the elderly.

Lawyers' theories for interpreting the constitutional text and the motives of constitutional actors are perhaps starting to be more influenced by the experience of that other profession of interpreters, the psychotherapists. The psychoanalytic perspective assumes that multilayered contradictory intentions and symbolic meanings abound; we live lives of poetry, not prose. Speakers do not generally fully comprehend their own purposes, and the intellectual baggage we carry with us distorts our perceptions of current realities. Emotions permeate all that we do, and our rational goals are regularly compromised with dictates of conscience and defense against anxieties. Context, slips, and redundancy are important clues to meaning; useful interpretation requires an ongoing dialogue. By calling our attention to such concepts, psychiatry's chief contribution to constitutional law can be not in dealing with the abnormal but in helping us to understand one another and ourselves.

Martin Lyon Levine
(1992)