Do no harm in due process – a historical analysis of social determinates of institutionalization in the USA

Introduction

Involuntary hospitalization and civil commitment remain at the forefront of psychiatric care and judiciary ascendancy of mentally ill persons. Legally, these practices reflect attitudinal relations of the psychiatric community with various advocacy and governing bodies. Publicly, it remains an often-contentious aspect of mental healthcare.

Civil commitment laws and practices in the USA may be best understood by examining the various socio-political environments that provoked judicial and procedural reform throughout their history. Institutional practices have wavered with society’s views about the mentally ill and psychiatric providers alike. In this article, the procedural and statutory history of psychiatric hospitalization in the USA is summarized, with the hope that reflection on past successes and follies may inform the approach to present and future challenges in caring for persons with mental illness.

The institutions of colonial America

Medieval England and its early American colonies were stratified by class; so too was treatment of the mentally ill (Testa and West, 2012). The rich and powerful could send sick family members to private institutions. The poor, being unable to afford such care, were left with the burden of caring for sick family members in their homes. It was not until England’s Poor Relief Act of 1601 (known as the ‘Elizabethan Poor Law’) that some form of institutionalization through public funds was guaranteed for the poor (Rushton, 1988). However, conditions in these public asylums were markedly worse than in their private counterparts. Historical accounts detail miserable conditions characterized by overcrowding, filth, famine and disease (Smith, 2014).

Care for mentally ill persons was even more limited in the American colonies, where the impoverished conditions meant that specialized institutions for the mentally ill were non-existent (Farreras, 2019). Instead, the ‘institutions’ guaranteed for persons with mental illness who lacked familial support were jails or almshouses (Shorter, 1997: 7). Treatment of those deemed ‘insane’ was custodial in nature. Rehabilitation was thought to be futile, and sequestration of the mentally ill was believed to be the best approach. While confined, those thought to be suffering from mental illness were mixed with criminals, vagrants and other social outcasts (Anfang and Appelbaum, 2006; Appelbaum and Kemp, 1982). The first American almshouse that segregated persons with mental illness from other groups was not established until 1729, over 100 years after colonization in the Americas began (Shorter, 1997: 7). Residents of colonial American institutions were placed in manacles, chains, locks or stocks, and often left in solitary confinement (Testa and West, 2012). Sentencing was for indefinite amounts of time, and entirely without judicial oversight.

Early US asylum practices

The ideas of the European Enlightenment infiltrated colonial America and demanded restructuring. As colonial America expanded, it adopted new ideas from around the world, including the ‘Reform Movement’, which sought to improve treatment for those with mental illness. The public became increasingly interested in more humane care for the mentally ill. However, with no formal legislation for civil commitment for the mentally ill, colonial practices were guided by by-law and local ordinances. These were, in turn, heavily influenced by the dominant religious movements of the time in the various colonial regions. Hospital reform practices in America were first proposed by members of the Society of Friends (Quakers). While evangelizing compassion and salvation for those ‘with a distracted mind’, the Quakers opened the first designated psychiatric unit in the colonies at Pennsylvania Hospital in 1752 (Clark, 1951). Through the divine obligation for deliverance from mental illness to spiritual salvation, the Quakers sought to restructure institutional practices. To save someone spiritually meant the person had to be of sound mind. This, they believed, could be done through humane treatment, with more freedom and recreation than previous institutions allowed. Forcing hospitalization was not believed to be an infringement on one’s rights, but rather a necessary means for salvation (Carron and Saad, 2012). This idea was impressed upon the colonial America as word of success with involuntary yet compassionate treatment spread. Similar facilities arose in the north- and mid-Atlantic through the late eighteenth and early nineteenth centuries (Anfang and Appelbaum, 2006; Carron and Saad, 2012; Testa and West, 2012). Therapeutic optimism came to guide the procedural practices and care in institutions.

In synchrony with ideologies of the nascent Industrial Revolution, the curative potential of work and recreation were further explored in US asylums. The belief of rehabilitation through industry continued to be embraced. Madhouses were intended to be therapeutic rather than seclusionary, and treatment was with religious discourse, manual labour and structured activities (Anfang and Appelbaum, 2006). Both work and recreation, rather than shackles and isolation, became a hallmark of treatment in early American asylums. Conceptualizations of mental illness at the time varied widely from spiritual, to somatogenic, to psychogenic, but were unified by the belief that institutions themselves, through their composition and capacity to rehabilitate, were curative (Anfang and Appelbaum, 2006; Shorter, 1997: 44–5).

The alliance of mental institutions and capitalist philosophies, however, was not always benevolent. Divorced from legal oversight, institutions provided opportunity for monetization. The manual labour done by patients was often exploited by local officials who saw profit through free employment (Penner, 2017). Hospital superintendents were frequently bribed in order to commit patients, many of whom were not in fact mentally ill (Testa and West, 2012). Numerous historical accounts detail confinement being used as a means to secure wealth and property from family members and accomplished through bribery of hospital officials (Anfang and Appelbaum, 2006). It has also been argued that mental institutions served in part to regulate labour markets and offer relief from the financial burden that those who were too sick to care for themselves posed on their families (Penner, 2017). Psychiatric hospitals became crowded with those who were in some way a trouble to their family or community, rather than strictly on the grounds that they were mentally ill. As commitment to asylums was increasingly abused, the humane intentions of American institutions began to give way to the burdens of overcrowding (Shorter, 1997: 46–7; Smith, 2014). A national, post-colonial, ethos opposed to the growth and intrusion of the government left asylums unchecked by federal and state governing bodies.

The Reform Movement and early legislation

As the growing abolitionist and feminist movements of the mid-nineteenth century began to gain traction in challenging the maltreatment of marginalized peoples, attention to the mentally ill was again invigorated. The ‘Moral Treatment’ movement was part of the larger ‘Reform Movement’, concerned with the care of those in insane asylums (Levin and Gildea, 2013). One prominent figure in this movement was Dorothea Dix, a schoolteacher from the Atlantic. She gained public attention from having travelled the country, documenting the poor conditions of the asylums, and advocating for more residential care that more closely resembled homelike conditions. In doing so, she garnered the support of reformers and brought widespread criticism of asylum practices (Shorter, 1997: 3–4). States took notice, beginning in Massachusetts with reform at the Worcester State Hospital in 1883 (Anfang and Appelbaum, 2006). Dix and other activists incited a cluster of legal proceedings that led to much of the first legislation regarding the insane (Levin and Gildea, 2013). Nevertheless, admission criteria were simply that a patient would benefit from treatment.

The first court case was heard in 1845 when a Massachusetts state court heard the concerns of a man confined on the grounds of insanity in The Matter of Josiah Oakes. While the court found the plaintiff was indeed delusional and requiring hospitalization, the attention to issues of constitutionality in mental institutions was, in itself, a victory for the Reform Movement (American Journal of Insanity, 1846). American distrust of the commitment process grew, prompting a series of other celebrated court cases. Among them, the case of Hinchman v. Richie recognized the problem of forgery and bribery that accounted for a significant amount of involuntarily committed individuals. The judge presiding over the case maintained that ‘the right to restrain an insane person of his liberty is found in the great Law of Humanity’ (Hinchman, Burnside and Dyer, 2011: 76). The outraged public responded by demanding government oversight of institutions. The first asylum-focused federal legislation followed, assigning states to be responsible for overseeing institutions (Anfang and Appelbaum, 2006; Appelbaum and Kemp, 1982).

All hospitalizations remained involuntary, and treatment was coerced during the Civil War. As media became more proficient, public discourse of the abuse potential within the system grew, and courts were increasingly willing to hear related cases. In Packard v. Packard (1864), E.P.W. Packard contested that she had been wrongfully committed by her husband, after attempting to withdraw from his religious congregation. The court ruled in her favour and, in 1868, minimal legal standards for the right to challenge commitment were established (Himelhoch, Samuels and Arthur, 1979). Now not only did states carry the vague responsibility of overseeing mental institutions, but it was decided that the appropriateness of commitment should be determined by the courts rather than by hospital superintendents, and that patients could be re-evaluated throughout their confinement. Public fear and disgust over wrongful commitment in cases like Packard’s led many states to impose legal safeguards, including the right to a trial and legal representation (Appelbaum and Kemp, 1982; Himelhoch et al., 1979). These early due process standards concerning involuntary commitment were rooted in the precedent of parens patriae – affirming that a government could and should protect citizens from themselves, even at the expense of civil liberties (Anfang and Appelbaum, 2006; Appelbaum and Kemp, 1982; Arrigo, 1992; Ferris, 2008). They reflected mistrust in medical providers and the post-Civil War mentality of governmental interventionism.

Many psychiatrists and hospital superintendents opposed early commitment laws, wanting determination of insanity to remain in their control. Isaac Ray, known as the ‘father of American psychiatry’, had notably proclaimed ‘law should put no hindrance in the way to prompt use of those instrumentalities which are regarded as most effectual in promoting the comfort and restoration of the patient’ (Appelbaum, 2000: 190). State judicial bodies, however, remained under significant public pressure to regulate institutions, as widespread allegations of physician corruption continued in spite of preliminary legislation. The relationship of asylum physicians and the American public at the time was a contentious one, and psychiatrists were eventually forced to concede to legislative oversight and judicially mediated civil commitment processes (Testa and West, 2012). Physicians were also prohibited from being financial benefactors of forced hospitalization or civil commitment in any way. The ultimate result of commitment cases in the late nineteenth century was the requirement of judicial certification in most states, often including a trial by jury (Arrigo, 1992).

War and the early twentieth-century asylums

Psychiatric fallout from World War I also brought an unexpected need for psychiatric hospitalizations. The prevailing dogma, particularly for the treatment of veterans, was to avoid institutionalization when possible, in order to avoid stigma. However, the strains of war, urban migration, and later financial hardships of the ‘Great Depression’ led to a significant burden on the institutional system (Dobrowolski, 2001: 14–15). More individuals were being considered for commitment than ever before, which caused added delays to the already lengthy process. Patients would often be boarded in jails for weeks or months while waiting to meet their attorneys, and courts became overwhelmed with the number of cases (Appelbaum and Kemp, 1982). In response, many states created commitment procedures that bypassed time-consuming judicial hearings and allowed hospitalization for brief periods of time without court review (Anfang and Appelbaum, 2006). The increased ease of legal proceedings, coupled with ambiguous parens patriae ‘need-for-treatment’ standards for commitment, led to a further increase in psychiatric hospitalization into the mid-twentieth century (Arrigo, 1992). The proliferation of psychiatric patients began to undermine the practicality of hospitalization due to limited space. Relics of the Moral Treatment Movement again began to dwindle due to increasing numbers (Levin and Gildea, 2013). Overcrowding again worsened hospital conditions.

World War II left more military servicemen struggling with mental illness than ever before, with the number of psychiatrically hospitalized patients in Veterans Hospitals doubling between 1940 and 1948 (Greene, 1977: 499). The nation supported the war effort broadly and held its veterans in high esteem. The country began to recognize that both heroes and otherwise ordinary citizens could suffer from mental illness. Nationally, this supported an embrace of psychiatric patients as everyday people deserving standard civil liberties. The director of the Public Health Service, Robert Felix, who was a psychiatrist, prioritized a bill advocating better care for persons with mental illness. He argued that lack of psychiatric care was detrimental to the war effort and maintaining morale. General Lewis Hershey, the director of the Selective Service System, produced ledgers and statistics demonstrating that the poor and reactionary mental health treatment in the military increased cost and worsened spirits (Herman, 1995: 245). The National Mental Health Act (NMHA) was passed in 1946. This provided financial support for research and training in psychiatric disorders and established the National Institute of Mental Health (NIMH) (Pickren and Schneider, 2005: 17–28). All states were also designated a mental health authority, charged with providing mental health care, rather simply regulating it (Herman, 1995: 247). Activists also became increasingly concerned that the commitment and treatment of the now more humanized mentally ill was too harsh, punitive, and mirrored those of criminal proceedings (Anfang and Appelbaum, 2006).

Post-war transformations

In 1948 Albert Deutsch published The Shame of the States, a book that included photographs of the desolate conditions of asylums (Deutsch, 1948). Public advocates and federal departments alike were outraged. The Group for the Advancement of Psychiatry (GAP) responded with a damning report on psychiatric hospitalization (GAP, 1948). The newly-minted NIMH called for revision of commitment and treatment practices. GAP and NIMH both lobbied heavily to assure due process for psychiatric patients in a civil context, and they set out to find other less restrictive means of caring for persons with severe mental illness (Ferris, 2008).

The advent of chlorpromazine, the first widely available antipsychotic medication, in the 1950s brought about opportunity for reform. It presented a potentially effective treatment for severely mentally ill patients, and other successful pharmacological agents such as lithium soon poured onto the market as well (Shorter, 1997: 256–8). These offered hope that institutionalization could be temporary and allow patients to return to the community (Anfang and Appelbaum, 2006).

While public criticism of civil commitment proceedings and asylum practices had grown, the government and other legislative bodies, rather than practitioners, were generally criticized for these failings. In 1951 the NIMH released a ‘Draft Act Governing Hospitalization of the Mentally Ill’, which returned decisions on commitment from the courts to medical professionals. It did so out of concern that the judicial system had been treating commitment cases like criminal proceedings, only now with more consideration for patients’ rights than was the case previously (Appelbaum, 2000).

The antipsychiatry movement

In spite of these promising advances, the social climate of the 1960s brought hostility to authority, including towards the field of psychiatry. Popular philosophers and celebrities of the time viewed psychiatry as a method for ‘the bourgeoisie’ (a term initially coined by Karl Marx for the upper middle class) to control the masses (Shorter, 1997: 274). So came the ‘antipsychiatry’ movement. The basic tenet of this was that mental illness was rooted in moral incongruence and socio-political factors, rather than biological ones. It held the belief that psychiatric treatment was, in fact, harmful, especially in asylums (Ferris, 2008). Three books were published in 1961 opposing modern psychiatric treatment, and they became pop-culture phenomena: Michael Foucault’s Madness and Civilization (1961/2013), Thomas Szasz’s The Myth of Mental Illness (1961) and Erving Goffman’s Asylums (1961). Foucault argued that the medicalization of mental illness was and always has been a product of social objectives. Szasz’s view was that psychiatry and its institutions victimized people in order to uphold the status quo for dominant social structures, both in the Middle Ages when the church and state were unified, and throughout the last two centuries as capitalist order was the predominant imperative (Roberts and Itten, 2006). Goffman described asylums as ‘total institutions’, where patients underwent ‘a series of abasements, degradations, humiliations, and profanations of self” (Goffman, 1961: 14). The response they advocated was militant, but these works influenced only a small, academically minded, swathe of the country. In 1962, the fictional work One Flew Over the Cuckoo’s Nest (Kesey, 1962) reached the general public more effectively. The view that psychiatry was fundamentally damaging and illegitimate led to public demand for more laws restricting physicians’ power to confine people against their will.

Deinstitutionalization

As social stances evolved, government began to emphasize individual rights over those of the state, in order to meet the concerns of citizens. Additionally, the civil rights movement, which was gaining momentum, added to the public drive away from forced hospitalization and towards care centred on patient rights (Testa and West, 2012). States again answered by imposing stricter commitment standards, time limits and periodic judicial review (Ferris, 2008). States also began to shift away from the ‘need for treatment’ standard to a narrower set of circumstances defined by ‘dangerousness’ to self or others. In 1964, The Ervin Act (Appelbaum, 2000) set out to standardize commitment criteria, requiring that, in order for individuals to be committed, they must pose an ‘imminent threat to the safety of themselves or others’. Notably, this replaced the dominant and more permissive ‘need-for-treatment’ standard that had previously held that any person deemed in need of care could be committed. It was also the first formal legislation to specifically stress less restrictive alternatives to hospitalization when possible. The 1966 landmark case Lake v. Cameron (1966) followed shortly thereafter, which revised commitment standards to require commitment to the least restrictive environment possible.

Federally, funding of asylums was cut dramatically. In 1963, Congress passed the Community Mental Health Centers Act, which shunted federal funding toward the development of community-based mental health services, and away from inpatient psychiatric institutions (Beigel, Sharfstein and Wolfe, 1979). The implementation of Medicare and Medicaid in 1965 prompted taxpayers to question the effectiveness of the psychiatric treatment for which they were now more acutely aware that they were paying. The public and fiscally conservative elements alike supported the movement of care out of asylums, not only to protect the rights of patients, but with the belief that it would reduce the net cost for mental healthcare (Berkowitz, 2005). Citizens were still upset with the overtly deplorable conditions of asylums, and also grew critical of the high cost of community-based mental healthcare. Medicaid laws initially denied financial coverage for inpatient services for persons between the ages of 21 and 65, further incentivizing the use of other non-hospital, community-based services (Mitchell, 2019: 1–2).

This legislative reform, which was intended to transition individuals out of asylums through ‘deinstitutionalization’, also had an unintended result, which became known as ‘transinstitutionalization’. As the number of hospitalized patients declined, the number of those incarcerated grew. Severely ill patients discharged from asylums often found themselves in jail, homeless or victimized (Prins, 2011). Community structures that promised to house persons with severe mental illness were few, and Community Mental Health Centers were often incapable of providing sufficient treatment to those with the most acute symptoms (Grob, 2005: 16–17).

An era of judicial reform

Judiciary ascendancy continued throughout the 1970s with numerous landmark cases that shaped commitment practices. In Lessard v. Schmidt (1972), a federal district court in Milwaukee struck down Wisconsin’s commitment law as unconstitutional, thereby setting a narrower dangerousness standard, so that commitment would only be permissible when ‘there is an extreme likelihood that if the person is not confined, he will do immediate harm to himself or others’. The rights to counsel, to remain silent, and to exclusion of hearsay by non-experts were then included in commitment hearings. The standard of proof at the time was set to be especially stringent, at ‘beyond a reasonable doubt’. The US Supreme Court made its first ruling on civil commitment in 1975 in Donaldson v. O’Connor (1975). While varying slightly, every state’s civil commitment criteria were ultimately revised to reflect the standards set forth in this case.

As societal scepticism and the influence of the antipsychiatry movement began to fade, courts began affording psychiatrists leeway beyond expert opinion of deciphering who met criteria for commitment. In the 1979 case of Addington v. Texas (1979) the burden of proof was modified to a ‘clear and convincing’ standard, given the submission that absolute certainty in psychiatry is impossible. It also required renewal hearings for involuntary commitment, as is the case today.

Through the 1960s and 1970s, forced hospitalization was generally made more difficult, by more stringent state and federal standards. This was compounded by increasing awareness of the financial burden of asylums by both the public and federal lawmakers, who had not yet recognized that while outpatient care was beneficial for many, it would often fail to meet the needs of many severely mentally ill persons (Anfang and Appelbaum, 2006).

Although federal disability laws such as the Civil Rights of Institutionalized Persons Act of 1980 continued to emphasize the development of community-based alternatives to inpatient care, public support for institutionalization grew, as evidenced by the 159 percent increase in funding the following year (Lutterman, William, Fisher and Manderscheid, 2017: 9). While funding in the community grew 1,528 per cent, it was still found to be inadequate, and it became increasingly recognized as potentially unsuitable for those with severe and acute mental illness (Grob, 2005: 16–17; Lutterman et al., 2017). Nearly all patients with severe mental illness treated in the community still require episodic inpatient hospital care (Fakhoury and Priebe, 2002). Increasing recognition of the need for institutional psychiatry began to increase trust in such programmes. Together, the cases of Youngberg v. Romero (1982) and Rennie v. Klein (1978) allowed physicians to administer psychotropic medications in the case of an emergency and against a patient’s will. One year later, Jurasek v. Utah State Hospital (1998) amended this to include treatment of those found to be incompetent to make their own medical decisions. Provisional institutional care garnered increased legislative support through the following decades with the increasing awareness of the need for inpatient hospitalization for severely and persistently mentally ill patients.

Institutionalization and the present day

The treatment environment of inpatient wards has increasingly come to be viewed as protective for those who are chronically mentally ill. It has become apparent that even in the best community care environments, there often arises a need for care that can only be provided by institutions (Wasow, 1986). Other legislation that affects persons with mental illness continues to be passed, seemingly with the interest of protecting the rights of patients, but often also recognizing the limited agency characteristic of some persons with severe mental illness. Community alternatives continued to be emphasized, as with the US Supreme Court’s decision in Olmstead v. L.C. (1999), and remain the focal point of mental healthcare, with 7.5 million individuals receiving publicly funded treatment in the USA.

The accessibility of psychiatric hospitalization, however, has not yet recovered from vestiges of psychiatric maltreatment or its by-product, deinstitutionalization. Even voluntary inpatient treatment is often viewed as coercive, and inpatient resources continue to decline (Katsakou et al., 2011). In 1955, there were over 550,000 state and county psychiatric beds (approximately one per 300 citizens); in 2017, there were 170,200 beds (including long-term residential treatment centres), in spite of population growth (approximately one per 2,000) (Lutterman et al., 2017). This has placed a significant burden on the forensic system for providing psychiatric care, with even more dismal funding (Saxena, Sharan and Saraceno, 2003). Relatively modest amendments to civil commitment legislation occurred in the following decades, with the general principles now established.

Those with severe and persistent mental illness, such as schizophrenia, remain both stigmatized and ignored in their need for inpatient treatment (Treatment Advocacy Center, 2016). Similar to the consequences of the Community Mental Health Centers Act (Beigel et al., 1979), the ‘walking-well’ are beginning to enjoy increased funding and access to the necessary level of care that the severely mentally ill do not (US Department of Health and Human Services, 2016). Public efforts to improve awareness and access to mental healthcare have had disproportionately little impact on the allocation of funds for inpatient treatment, housing, and other essentials required by persons with severe mental illness. By most metrics, persons in these vulnerable groups remain forgotten and ignored by the public and lawmakers.

Conclusion

The evolution of forced hospitalization and commitment law are reflective of a struggle with systematic neglect, public misunderstanding, and unintended consequences of otherwise benevolent intentions. Legal reform has been characteristic of America’s response to the mental health crises, but reactionary politics has been its legacy. As old challenges remain and may return and new attitudinal and logistical challenges arise, we must ensure that quality inpatient psychiatric care and reliability of civil commitment are approached in a more vigilant and proactive way.

The sizeable barriers are no longer a result of inadequate treatment options or a failure to provide legal assurance of civil liberties. Most inpatient commitment laws were created when commitment entailed lengthy stays in suboptimal facilities, leading to strict procedural responses. Now the struggles facing inpatient psychiatric care and commitment appear to be more related to the dearth of financial support for the severely and persistently mentally ill. Psychiatric services continue to reflect the trend of deinstitutionalization, with the closure of large mental hospitals, the reduction of psychiatric hospital beds, and the discharge of long-stay hospitalized patients who may continue to meet criteria for civil commitment, but whose course is altered due to the need to admit more acute patients. With these changes have come burdens on other systems, namely those involving homeless care and forensic institutions. The effectiveness of civil commitment is and always has been limited to societal perception of the mentally ill, psychiatric providers, judicial response and public subsidies – all of which require continued evaluation and modification.