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Being Mindful About Mental Illness & Defendants

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Much scholarly debate centers around the conflict between law and mental illness. Numerous commentaries and law review articles decry what is perceived as a gross injustice that has occurred in our society regarding how the legal system treats those with mental illness. This concern is well-placed in many ways, since a decent society should be judged by how it treats those who are ill and cannot fend for themselves. But the issue is not as simple as it may appear at first blush. Fixing the problem entails solving complicated problems that involve competing interests and viewpoints. Moreover, by examining one issue in particular – the involuntary administration of antipsychotic drugs – we can get a glimpse of how vexing these issues tend to be.

Much scholarly debate centers around the conflict between law and mental illness. Numerous commentaries and law review articles decry what is perceived as a gross injustice that has occurred in our society regarding how the legal system treats those with mental illness. This concern is well-placed in many ways, since a decent society should be judged by how it treats those who are ill and cannot fend for themselves. But the issue is not as simple as it may appear at first blush. Fixing the problem entails solving complicated problems that involve competing interests and viewpoints. Moreover, by examining one issue in particular – the involuntary administration of antipsychotic drugs – we can get a glimpse of how vexing these issues tend to be.

Law & Science

For anyone who has worked in the legal field and the world of science, it is well understood that law and science often conflict. The aims of these two disciplines are steeped in traditions that are very different form each other. Law is a discipline of the humanities. There are surely many fine lawyers who disagree, but fundamentally, law operates in an epistemological world where certain vital aspects are held to be true not based upon observation but belief. Free will, a necessary aspect of American criminal law, is not known in law because some laboratory experiment has proven that it exists. Rather, it is through argument and persuasion that the many tenets of law are established as true. On the other hand, science relies on observation and experimentation of material phenomenon to arrive at conclusions. Of course, there are many examples of science being influenced by politics just as there are many good empirical studies examining aspects of law and politics. Nonetheless, in totem, the two disciplines are very different creatures.

Antipsychotic Drugs and Mentally Ill Defendants

As I discuss (here), the involuntary administration of antipsychotic drugs is an enduring controversy. There have been numerous cases, including the recent Sell v. United States, 539 U.S. 166 (2003), that have shown a deep skepticism by the courts regarding this use. Indeed, the forcible drugging of anyone is a serious matter as few other issues invade individual autonomy so illustratively. Yet, the courts get antipsychotic drugs wrong and their decisions have tragic consequences for thousands of people with mental illness, their families, and public policy at large.

To begin with, courts often refer to antipsychotic drugs as “mind controlling” or “synthetic sanity” invoking the notion that psychotropic drugs can somehow control free thinking and intentionality. This is a grave error. Not only is this utterly untrue, the fact is that antipsychotic drugs have been shown repeatedly to be associated with improved cognition in persons with schizophrenia and related psychotic mental illnesses. To understand this better, a brief introduction is needed.

Cognition and Psychosis

A hallmark feature of psychosis is the impairment of cognition. From a scientific perspective, when we talk about cognition, we are speaking of aspects of the brain that are specific and measurable. In terms of psychosis, these include visual processing, sustained attention, memory, and executive functioning. Briefly put, in healthy people, these aspects of cognition allow people to correctly interpret their environment and process that information in a planned, orderly manner. While hallucinations (e.g. hearing things) and delusions (e.g., believing false things) are the most noticed symptoms of many forms of psychosis, impaired cognition is perhaps the most insidious. This is because it often goes undetected and is strongly associated with long-term outcome.

Almost all of the available antipsychotic drugs can improve cognition impaired by schizophrenia and related psychotic illnesses. Even the older generation drugs (known as the typicals) have now been shown to improve cognition. Even slight improvements in attention and memory can have profound effects since psychosis is a terribly debilitating illness. Moreover, emerging research suggests that foregoing treatment may be associated with permanent brain damage since active psychosis is considered by many to involve a toxic effect on the brain. In sum, antipsychotic medications are lifesaving medicines and their use should be encouraged for those with psychotic illnesses.

Legal Relevancy

A fundamental concept of American jurisprudence is that defendants have a constitutional right to be mentally competent during all phases of a criminal proceeding. The uninformed stance of the courts stands in direct opposition to this fact. Antipsychotic drugs do not control people in any sense and go a long way in ensuring competency among those with psychotic illnesses. It is true that these medicines are associated with serious side-effects (most notably diabetes), yet the alternative of no treatment at all is associated with far worse effects. It is time for the courts and legal scholars alike to dispose of their prejudices, which serve only to stigmatize those with mental illnesses further, and embrace the benefits of these brain-saving medicines.

3 Comments

For those trial prosecutors in the crowd who glaze over when reading the phrase "scholarly debate", the take home from the post is in the last paragraph headed "Legal Relevancy."

While it's true that the state may not put someone on trial who is mentally incompetent, that's hardly the same thing as what you seem to be suggesting in this post, which is that the courts are somehow preventing the state from fulfilling an obligation to medicate somebody into competence. In fact, as your paper discusses in detail, just the reverse is true: individuals have a due process right to refuse such medication. Moreover the notion that it is somehow "far worse" for the defendant to remain unmedicated is an assertion that only makes sense from a completely academic point of view, utterly divorced from the pragmatic realities facing somebody in state custody. Why on earth would it be worse, from the defendant's point of view, to be unmedicated and avoid trial than to be forced by the state to become just sane enough to convict and imprison? Whatever sort of "benificence, autonomy, dignity and justice" a defendant may attain through involuntary medication ultimately serves only to allow the state to degrade and humiliate them through their subsequent incarceration.

Even with Sell, the right to refuse antipsychotic medication is limited. Generally, that right is reserved for civil patients. Nevertheless, my view is that the law gets the right to refuse antipsychotic medication wrong. That right, was recognized decades ago was before we knew that foregoing antipsychotic medication (in persons with psychotic illnesses) is likely associated with permanent damage to the brain. Additionally, there is a serious question in whether psychotic individuals are competent to refuse medication now that better understand that lack of insight into illness (i.e., anosognosia) is prevalent and due to the disease itself. We must remember that this is not the case of the state seeking to force medication to silence political dissidents as is commonly portrayed, but seriously ill people refusing important medicine because their illness substantially impairs their judgment. The law gets these medicines wrong as evidenced by their referring to them as “mind altering drugs”. That uninformed stance, has much to do with the misguided right to refuse medication in these cases.

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