1. Conundrums and Controversies.pdf

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722 journal of law, medicine & ethics

M. Carmela Epright, Ph.D.,is an Associate Professor of Philosophy at Furman University, in Greenville, South Carolina. Sheserves as a clinical bioethicist and ethics consultant to numerous hospitals and medical associations and has published articlesin bioethics, moral theory, political philosophy, and psychiatry. Her current research focuses upon the legal and moral implica-tions of psychiatric diagnosis and treatment. Robert M. Sade, M.D.,is a Professor of Surgery and Director of the Institute ofHuman Values in Health Care at the Medical University of South Carolina in Charleston. He chairs the Planning Committee ofthe Thomas A. Pitts Memorial Lectureship in Medical Ethics. He currently serves as the Associate Editor (Ethics) of the Annalsof Thoracic Surgery,as Chair of the Ethics Committee of the American Association for Thoracic Surgery, and as Chair of theStandards and Ethics Committee of the Society of Thoracic Surgeons.

There are many good reasons for dedicating asymposium to issues in mental health and ill-ness, but the main motivation for this one was

first and foremost concern for the well-being of psy-chiatric patients in a health care system that is ill-equipped to meet their needs. The conference from

which this symposium is derived took place in SouthCarolina, which, in company with many other states,has drastically reduced funding for mental healthservices in recent years. The state hospital has elimi-

nated approximately a third of its beds, patients expe-rience increasingly lengthy waits for mental healthservices, and emergency rooms have become the pri-mary source of acute treatment for many psychiatricpatients. The criminal justice system is similarly over-

burdened by competing demands with regard to thementally ill prisons contend with ever increasingnumbers of mentally ill inmates and face complicatedquestions regarding how to establish a proper balance

between treatment and punishment. In light of thesechallenges, both the health care system and societyat large must consider anew old questions about thementally ill what constitutes a mental illness, how

such illnesses should be treated, whether psychiatricdiagnoses should be considered mitigating factors

with respect to criminal behaviors, and whether, how,and under what circumstances respect for autonomyof psychiatric patients should be waived.

The Incarceration RevolutionJoseph Blooms keynote paper in this collection,The Incarceration Revolution: The Abandonmentof the Seriously Mentally Ill to Our Jails and Pris-ons, touches upon on all of those questions. Bloomexplains the shift from federally based programs ded-icated to the care and treatment of the mentally ill tothe relegation of these responsibilities to state govern-ment, beginning with the election of Ronald Regan in1980. Since that time, state hospitals have been emp-tied, community resources have been overwhelmed,the population of mentally ill homeless people hasswelled, and the prison system has become a primary

holding arena for psychiatric patients. Bloom usesthe state of Oregon as a representative case study,and concludes with arguments for a national mentalhealth policy similar to those advocated by presidentsKennedy, Johnson and Carter, as well as reconsidera-tion of revisions to civil commitment laws that weredeveloped by the American Psychiatric Association inthe early 1980s.

The remainder of the symposium is divided intofour sections, each preceded by a vignette designedto focus the discussion on a specific controversy inthe field of mental illness. We provide those vignetteshere, with brief summaries of the papers that discuss

them.

introduction

Conundrums and Controversies inMental Health and IllnessM. Carmela Epright and Robert M. Sade

About This SymposiumThis symposium consists of papers presented at the15th Annual Thomas A. Pitts Memorial Lectureship. Theendowed lectureship, held annually since 1993, is fundedby the MUSC Foundation through a bequest from Dr.

Pitts, who served on MUSCs Board of Trustees for 36years and as its chair for 25 of those years.


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Several of the papers in this collection ask questionsabout the nature and diagnosis of mental illness.No chemical or imaging tests are readily available

to determine psychiatric diseases, so their diagnosisis rife with controversy. Some argue that commonlydiagnosed disorders are not diseases at all, but areevidence of the patients weakness. This viewpoint isnowhere more prevalent than in the field of substance

abuse disorders, including alcoholism. RaymondAnton, in his paper, Substance Abuse Is a Disease ofthe Human Brain: Focus on Alcohol, concedes thatindividuals do have some role in deciding whetherand when to use addictive substances, but argues,nevertheless, that alcoholism and other substanceabuse disorders are, in fact, diseases. He reviews thetraditional conception of disease and concludes thatsubstance abuse meets the formal criteria for a dis-ease state. In reviewing the heritability of substanceabuse disorders, he confronts the commonly held ideathat substance abuse constitutes a moral failing. Hedemonstrates that the brain of an addicted person is

different from that of a non-addict, both before andafter substance use, which results in a loss of control toresist using. The substance abuser has a responsibil-ity to seek and adhere to a treatment regimen, makingsubstance abuse disorders deeply problematic, becausedenial is part of the disease process. Yet, acceptanceof the disease and active participation is necessary fortreatment. Thus, substance abuse is similar to otherpsychiatric illnesses such as psychotic and mood dis-orders, insofar as the disease state itself interferes withthe ability to seek treatment, while healing requiresparticipation in treatment.

Is Substance Abuse a Disease?The U.S. Department of Health and HumanServices (DHHS) is reconsidering whethersubstance abuse ought to be deemed a disabil-

ity under the Americans with Disabilities Act(ADA). Under current ADA regulations, use ofrecreational drugs and alcohol do not qualify ascovered disabilities. Protection is provided, how-ever, to those who have successfully completeda drug rehabilitation program or who are cur-rently enrolled in such a program. Furthermore,employers may utilize drug testing to ensure thatemployees who have completed or are enrolled inrehabilitation programs remain drug free. Thisdiffers dramatically from the ADAs rules regard-ing covered disabilities: employers are forbiddento require medical tests for applicants or current

employees. ADA policies also allow employersto prohibit the use of drugs and alcohol in the

workplace and to hold employees abusing drugsor alcohol to the same job performance criteriaas other employees.

DHHS is reconsidering this policy because theSecretary of DHHS wishes to respond to criticsof the ADA who argue that substance abuse,like other forms of mental illness, is a biologi-cally based condition that lies outside the indi-

vidual sufferers control. The Secretary of DHHSappoints a committee to advise him on whethera change in the ADA is justified. The appointees

are well-known and highly respected individu-als, chosen because they have no preconceptionsabout the nature of substance abuse. From thepreliminary materials provided to the commit-tee, they learn that the ADA defines a disabilityas a physical or mental impairment that limitsone or more major life activities. The commit-tee is charged with resolving this central issue:if substance abuse is a biological condition, asproponents of policy change argue, then it meetsthe Acts definition of disability and thus quali-fies for inclusion.

The committee hears several points of view,most prominently the opposing views that sub-stance abuse is a moral choice made by the userand that substance abuse is a treatable, biologi-cally based mental disease.

Criminal ResponsibilityWilhelmina Sykes had gone to her husbandsplace of employment to confront him about sus-picions of infidelity. They had a fight and she

became very angry. While trying to exit the base,she was held up by a car blocking the exit. Sykeshonked her horn twice, but the driver, Steven

Walker, gestured rudely and continued to blockthe exit. Sykes anger rose still higher, and sherammed his car, damaging it and seriously injur-ing Walker. Sykes was arrested and charged withassault and battery with intent to kill. Sykesattorney filed notice of intention to plead notguilty by reason of insanity, due to a confirmeddiagnosis of borderline personality disorder,for which she had been under treatment for 5

years. Under the states insanity defense stat-ute, a defendant may be acquitted by reason ofinsanity if the jury finds, by clear and convinc-

For related article, see page 735


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INTRODUCTION

The clinical syndromes called Axis I disorders, suchas major depressive disorder, bipolar disorder, andschizophrenia, have become generally accepted by thegeneral public, but the characterological nature of AxisII disorders, such as antisocial, narcissistic, and bor-derline personality disorders, are less widely under-stood. Their symptoms are not easily treated and, atleast on their face, appear to be more attributable tothe individuals choices rather than to a disease state.Using the case of Mrs. Sykes as an example, RobertKinscherffs paper, Proposition: A Personality Disor-der May Nullify Responsibility for a Criminal Act, andthe commentary offered by Richard Bonnie, Should aPersonality Disorder Qualify as a Mental Disease inInsanity Adjudication? consider whether these char-acter-based disorders could mitigate or even nullifyresponsibility for a criminal act. Kinscherff argues thatcurrent advances in neurocognitive science and behav-ioral genetics obliterates the distinction between Axis

I and Axis II disorders both sets of disorders havegenetic and environmental etiologies and predictableclinical courses, so if the diagnosis of an Axis I disordercan justify invoking the insanity defense, no clinicallysound reason justifies not doing so for an Axis II diag-

nosis. Kinscherff further contends that what counts asa mental disease or defect is a social and moral judg-ment, not clinical. He proposes that instead of barringthe not guilty by reason of insanity defense to those

with personality disorders, persons who have commit-ted crimes as a result of these disorders may, undersome circumstances be subject to involuntary com-mitment, if they pose a risk to others in virtue of theirpsychiatric condition.

Richard Bonnie agrees with Kinscherff that properrulings ought not hinge on diagnostic categories butrather on the defendants mental and emotional func-tioning at the time that the offence was committed.

The federal courts and roughly half the states do notinclude a volitional prong of the insanity defense (thatis, they do not focus upon whether the defendant couldconform his or her conduct to the requirements of thelaw); instead they focus only upon the cognitive prong(that is, they focus on whether the defendant couldappreciate the wrongfulness of his or her conduct). Theimpairmentis relevant, not the diagnostic category a categorical exclusion of evidence stemming from an

Axis II disorder would be unfair and arbitrary, notwith-standing the few jurisdictions, such as California andOregon, that make such specific exclusions.

ing evidence, that at the time of the offense, as aresult of a severe mental disease, the defendant

was unable to appreciate the wrongfulness of hisconduct or was unable to conform his conduct to

the requirements of the law.The prosecution asks the court to disallow theinsanity defense and exclude the proffered testi-mony on the ground that a personality disorder,in the absence of an Axis I disorder, does not con-stitute a severe mental disease or defect. Out ofthe presence of the jury, an expert witness for theprosecution testifies that Axis I disorders referto conditions typically characterized by majorabnormalities of a persons thinking or moodthat impair normal metal and emotional func-tioning, while personality disorders refer to clus-ters of personality characteristics that can lead

to problems in the persons life and relation withothers. The prosecutors argue that Sykes attackmight be understandable in light of her person-ality disorder, but that it cannot be excused onthat basis. The expert witness testifying for thedefense asserts that personality disorders have a

basis in the biology of the brain, so should be con-sidered equivalent to Axis I disorders relative todecision making and responsibility for criminalacts, and that excluding them would be arbitrary.In this case, in particular, the expert would beprepared to explain how Sykess disorder affectedher behavior at the time of the offense.

How should the court rule?

Refusal of Medication toAvoid ExecutionRoger White, 48 years of age, awaits execution forthe March 8, 1992, murder of Carol Martin andher 12-year-old son Marcus. White shot Martinand her son during a robbery at the Burger Kingrestaurant where Martin worked. White is afflicted

with paranoid schizophrenia, but was foundguilty of the double murder and faces executiondespite his mental illness. He has suffered psy-chotic episodes including paranoid delusions andauditory hallucinations for most of his life: he wasoriginally diagnosed with paranoid schizophrenia

when he was 19-years-old. His psychotic symp-toms have been well controlled with medication,

which he took willingly most of the time beforehis incarceration. His symptoms were under goodcontrol at the time of the double murder.

Gary Milsap, M.D., is a recently certified foren-sic psychiatrist is employed by the prison system

For related articles, see pages 745 and 760


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Howard Zonana, in his paper, Physicians MustHonor Refusal of Treatment to Restore Competency

by Non-Dangerous Inmates on Death Row, exam-ines the question of how autonomy intersects with theinterests of justice and the roles and responsibilitiesof physicians. The degree to which the mentally illpossess the right to refuse medication is a subject ofmuch debate. The 1986 Supreme Court ruling inFordv. Floridaupheld a ban on executing insane prison-ers on death row, in which Justice Powells concurringopinion has become the de factostandard: I wouldhold the 8th Amendment forbids the execution onlyof those who are unaware of the punishment they areabout to suffer and why they are to suffer it. TheFordcase opened a series of ethical questions regarding theparticipation of psychiatrists in death row cases, suchas whether it is acceptable for them to perform tests

for determining whether inmates are competent forexecution, to treat incompetent inmates in order torestore their competency to be executed, and to treata death row inmates anxiety or depression arisingfrom their impending executions. Ultimately, Zonana

argues against physicians playing any role in execu-tions, because [p]hysician participation in death rowcasescauses role confusion wherein the doctor has totake on the role of both healer and executioner, whichis not only difficult for patients (especially for those

with psychotic disorders), it threatens the autonomyof patient and physician alike.

To the contrary, in their paper, Physicians ShouldTreat Mentally Ill Death Row Inmates, Even If Treat-ment Is Refused, Melissa McDonnell and Robert Phil-lips argue that it is morally acceptable for physicians tohelp restore competency for execution. Capital punish-ment is permissible in the American criminal justice

system, so should be considered morally the same asother forms of just punishment. A psychiatrists duty topatients should not be affected by the physicians opin-ion on social or moral issues or the patients legal status.

A physician is on safe ground as long as he is motivatedby a desire to maximize comfort and minimize suffer-ing, rather than a desire to facilitate an involuntarydeath. When restoring competency for execution, thephysician is not the proximate cause of death; rather,the cause is the justice system, and the death would takeplace regardless of physician involvement. Whether thephysicians involvement is right or wrong is less thesource of the heat of this debate then the proximity of

that involvement to the execution of the penalty.

to provide psychiatric treatment for inmates. Dr.Milsap notes that White is currently aware ofhis impending execution and the reasons for it,and that, without medication, he is highly likely

to experience deterioration of his mental stateand an increase in psychotic symptoms. Thisdevelopment will diminish or negate his under-standing of his death sentence and his execution.Since his incarceration, White has refused medi-cal treatment, but has been forcibly hospitalizedand temporarily medicated on several occasionsto mitigate the imminent threat posed by violent,psychotic outbursts.

The prosecutor asks the criminal court foran order to prepare White for execution byusing whatever forceful means are necessary toadminister his anti-psychotic medication. The

court finds that Whites right to refuse treatmentis outweighed by the states interest in carryingout a criminal sentence, and orders the wardento medicate White forcibly so that he remainscompetent and can be executed.

The warden presents Dr. Milsap with the courtorder and requests that he prescribe appropriatemedication for treating the prisoner, despite theprisoners express refusal of medication to relievepsychotic symptoms when he was competent. Dr.Milsap has not been faced with a situation likethis in his nascent career, and hesitates, won-dering whether his role as a physician precludes

using force to medicate an unwilling patient whois trying to prevent his own death.

Treating Mental Illness by ForceEve Hyde is a 42-year-old woman with a historyof seven admissions to the state psychiatric hos-pital, four of which were involuntary. The police

brought her to the hospital six weeks ago becausethey found her wandering through traffic wear-ing only her undergarments. She had becomeagitated and explosive when police detained her;she attempted to grab an officers weapon whileshouting that she needed a gun to kill you, me,and everyone else.

Ms. Hyde has a history of violent behavior. Hermost recent prior admission, six months ago, wasalso involuntary; at that time, police brought herto the hospital because she used a baseball bat todestroy her apartment in response to the Red Soxlosing a game to the Yankees, and then turned



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INTRODUCTION

Mark Cherry, in his paper Non-Consensual TreatmentIs (Nearly Always) Morally Impermissible, arguesthat a person ought to have authority over his or herown body, a view that is central to nearly all concep-tions of moral theory and is embodied in common law,

which holds that persons must be secured against bat-tery and maintain a right not to be touched. He showsthat other principles, most notably beneficence, arerelevant to discussions regarding forcible treatment.Nevertheless, the right to maintain authority over

ones own judgment and to assess potential risks andbenefits as they relate to ones own person is founda-tional to contemporary secular bioethics. Mental dis-orders might render some individuals unable to makeinformed, competent decisions regarding their own

treatment, so that paternalistic judgments renderedby mental health professionals or the courts mightbe necessary. However, such cases are far more rarethan proponents of forced treatment would admit. Headvocates for greater use of psychiatric advance direc-tives that capture the moral authority of individualsover themselves, permitting these patients to stipulatetheir psychiatric treatment preferences or designate asurrogate to make decisions if they become truly inca-pable of providing an informed consent.

Carmela Epright is similarly concerned aboutmaintaining patient autonomy; indeed, her concern forpatients continuing autonomy leads her to argue that it

would be appropriate, in some cases, to coerce patientswith psychotic disorders to undergo treatment in orderto preserve their future decision-making capacity and toprotect their ability to recognize and respect the auton-omy of others. Because autonomous choice dependsupon certain human functions such as the ability toreason, judge, and assess consequences, patients can-not be said to be making free and autonomous deci-sions if those capacities are compromised. Eprightdemonstrates the ways in which psychotic disordersmay compromise these functions in the long term byexamining current evidence regarding the brain-basedimpact of refusing, rejecting, or delaying treatment.

Without treatment, some patients with psychotic dis-orders ultimately compromise the very brain functionsthat make autonomy and autonomous choice possible,

yet empirical data show that standard treatments forpsychotic disorders generally help to mitigate the lossof these functions. She concludes that coercing treat-ment in the short term might well preserve the possibil-ity of future goods, including insight into the damagecaused by the disease state, greater cognitive function,protection of the brain functions necessary for autono-mous choice, and preservation of the patients ability torespect the rights of other persons.

ConclusionMyriad ethical and legal problems plague the field ofmental illness, and from this plethora we have chosento explore in this symposium a few that are particu-larly controversial. The discussions in the followingpages, we believe, are especially effective in illuminat-ing the complexities underlying the problems posed

by the four vignettes presented above. We trust youwill agree with this assessment.

the bat on her brother when he attempted to pre-vent the property damage. She has had diagnosesof schizoaffective disorder, posttraumatic stressdisorder (PTSD) a result of childhood sexual

abuse perpetrated by her father, and the subse-quent suicide of her father, which she witnessed visual and auditory hallucinations, and delu-sions. She also has a history of non-compliance.

On this admission, a probate court orderedMs. Hyde to undergo treatment by the psychiat-ric staff until she is no longer a danger to herselfor others. Her symptoms have improved mark-edly, so the psychiatric staff is reviewing her hos-pital course and current condition. Her speech isorganized and logical, she is clean and appropri-ately dressed, she denies suicidal and homicidalideation, and she agrees to contact her psychia-

trist if she starts to feel the need to harm herselfor others. The patient wants to be dischargedfrom the hospital.

She understands that she suffers from PTSD,and has agreed to continue treatment with anti-depressants. However, she refuses counseling,notwithstanding her statement in the past thather relationship with her psychologist gets methrough the week and keeps me sane. She lacksinsight into her schizoaffective disorder anddenies that she has ever experienced visual andauditory hallucinations or delusions. Ms. Hydeclaims that she is a victim not psychotic and

flatly refuses to accept any form of treatmentintended to help her acknowledge and preventpsychotic episodes. The patient has a strong his-tory of non-compliance and violent behavior, andshe has no insight into her psychosis; yet, she iscurrently free of psychotic symptoms. Her physi-cians must decide whether to accede to her wishfor discharge from the hospital without outpa-tient treatment for her psychosis, discharge her

with involuntary outpatient treatment, or con-tinue her hospitalization.



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