Commentary: On Formulating Mental Health Codes for the World

The World Health Organization (WHO) has distributed for comments the draft of a Manual on Mental Health Legislation as a guide for all the countries of the world. It is to serve as a model for new legislation and as a guide for countries amending their legislation. Given the different legal systems, the cultural diversity and the vast inequalities in economic resources among the nations of the world, one can certainly question the wisdom of the WHO's top-down approach. In addition, everyone who knows the scarcity of competent mental health care professionals and the limited resources in third world countries will recognize that most of the proposals are quite unrealistic. How can nations who cannot feed their poor or meet the basic necessities of public health measures and primary care be expected to provide "incompetent" mental patients with counsel (lawyers) and independent tribunals (courts) before they begin to treat them?

The draft is described as "the collective views of an international group of [unnamed] experts," but it seems rather to be the work of lawyers who have been trapped in a time warp since the 1970s. This draft of the manual would impose on the rest of the world the complex array of legal restrictions and red tape that antipsychiatry ideologues imposed on American psychiatry back in that era.

The chief goal of antipsychiatry legal reform in the United States was to protect the "rights" of the mentally ill, even if that meant that their needs were never met. At that time, there was widespread distrust of psychiatric medications, and many legal rights advocates failed to recognize the medical reality of mental illness. Efficacious treatments for psychotic disorders were portrayed as mind-altering drugs. Reform-minded advocates argued that delusions and hallucinations were protected speech under the First Amendment. They refused to believe that lack of insight was the hallmark of serious mental disorder. Lawyers promoting this rights-driven approach were also distrustful of families, who were constantly portrayed in mental health legislation as acting against the interests of mentally ill family members. Since neither mental health care professionals nor families could be trusted to act in the patients' best interests, lawyers camped on the doorstep of psychiatric hospitals to contest every intervention.

The draft takes the same approach and displays the same suspicious attitude toward families of the mentally ill seeking treatment for a member of their family. Parents and spouses who know the patient best have no standing to request treatment for an incompetent relative. But families are specifically permitted by the draft to protest and appeal against psychiatric treatment, even after two independent mental health care professionals and an independent court-like authority have concluded that the patient is incompetent and that treatment is necessary. This is only one example of many provisions that make it clear that the draft's experts have the same basic goal as the antipsychiatry legal advocates of the 1970s. Every psychiatric intervention is to be contested on legal grounds. One can find lots of verbiage in the draft about the importance of families, about the plague of mental illness and about the need for treatment. But the actual provisions come straight from the most radical rights-driven models of the 1970s. The underlying rationale in the 1970s was skepticism about the reality of mental disorders and the efficacy and risks of psychotropic drugs. Thirty years later, this skepticism, often based on ignorance and bias, cannot be justified. The WHO's own goal is to promote greater access to efficacious mental health treatments. The draft prepared by their experts, if unchanged and implemented, would be the single greatest obstacle to access for the sickest patients who typically have no insight into their condition, but have a real chance of being helped by appropriate medication.

Lawyers may have a different perspective, but physicians usually look to the available empirical evidence and insist on proof that a method works. The legal reforms proposed by the draft for the rest of the world have been tested in America and Europe, and the results are nothing to cheer about. The financial and resource costs of the rights-driven approach have been documented. As one of the original legal advocates of this reform later conceded, "The law is a blunt instrument. We could bring it crashing down on the old system but we could not create a new one."

America is one of the wealthiest nations in the world, but, even here, many jurisdictions cannot afford the costs of the expensive and time-consuming legal procedures that the draft requires. Instead, officials typically abandon the efforts to hospitalize or treat the seriously mentally ill who lack insight into their condition. Since legal barriers have restricted psychiatric hospitalization in the United States, the mentally ill have been increasingly shunted into jails and prisons. This shift has occurred despite billions of dollars in government funding of alternatives to hospitalization: disability insurance, housing subsidies and various other kinds of community-based services. Over 1 million nursing home beds were created to deal with geriatric patients who had previously been cared for in state mental hospitals. What evidence-based health policy would urge third world nations to adopt even the more radically restrictive laws of the draft when they do not have the resources for any of these alternatives?

The most startling example of the draft's radicalism and bias is its prohibition of mandatory outpatient treatment. The draft's experts adopted the U.S. constitutional doctrine of the "least restrictive alternative." This idea is that when the state interferes with an important constitutional right--the "alleged" patient's liberty--it should interfere in the least restrictive fashion. Mandatory outpatient treatment is often the only feasible alternative available in the United States. Its underlying purpose is to provide and insure compliance with antipsychotic medication. There is conflicting empirical evidence about the value of mandatory outpatient treatment, but the outright prohibition demonstrates the draft's bias against psychiatric intervention.

In the United States, the families of people with serious mental illnesses eventually organized the National Alliance for the Mentally Ill (NAMI) to lobby for better care and to modify the 1970s' laws and provisions that prevented patients from receiving treatment. The American Psychiatric Association spent years canvassing its members and preparing a model statute that balanced legal rights and needs. The U.S. Supreme Court and other federal courts have backed away from their earlier support of the radical rights-driven approach. The experts who prepared the draft have dismissed the efforts of NAMI and the APA. They have considered none of the negative consequences of the reforms they propose. And they have ignored the changing legal climate in the United States courts that is most familiar with the rights-driven model. This is not the way the most important health organization in the world should behave.

It is difficult to justify the WHO's decision to allocate its own limited resources to this ill-conceived project of formulating mental health codes for the entire world, but perhaps it can be explained. There is growing international solidarity around the ideal of universal human rights. That progressive effort deserves support and recognition by everyone. However, even John Stewart Mill, the patron saint of human rights, recognized that children and (those he called) the "insane" posed a special problem for any universal notion of liberty and human rights. The U.S. lawyers of the 1970s unfortunately refused to believe in the reality of insanity or mental illness. Instead of recognizing the special problem Mill described, they declared the mentally ill as the paradigm victims of human rights abuse. Success in protecting a client with schizophrenia from appropriate and efficacious treatment was, in their biased view, as much a victory for autonomy and human rights as protecting a political dissident from improper and inappropriate treatment. But delusions and hallucinations are not a manifestation of human autonomy; they are symptoms of a serious malfunction of the human brain. So these legal victories were not a victory for patients with schizophrenia or their families, or for anyone else who recognizes the realities of mental illness. Given the advances in neurosciences and our understanding of the biological dimensions of mental illness, psychiatrists should recognize the fallacy of that outmoded approach. Yet it is the misguided view of these biased lawyers and the outmoded legal precedents they set that the draft is mistakenly following in the name of human rights.

The director general of WHO has recognized that, around the world, most people with serious mental illnesses are not being provided treatment. There is documentation that conditions in some mental hospitals in India and elsewhere are truly appalling and appropriate legal change should begin there. The proposed Manual on Mental Health Legislation should be rejected. It will add to the woes of those suffering people and will divert precious resources away from their care.