Chair, Mass. Mental Health Center Human Rights Committee
As published in The Advisor
Notes From The Mental Health Legal Advisors Committee
No.43, Fall 1995
Until now, the movement for recognition of the civil rights of mental
health consumers has centered upon involuntary commitment and coerced
treatment. Increasingly, however, the focus is shifting to other issues,
such as to what extent clinicians and institutions may restrict the
right of hospitalized persons to send and receive mail, visit with
relatives and friends, and use the telephone. These issues have been
brought to the fore by legislation before the Massachusetts Senate Ways
and Means Committee, the "Bill of Rights for Persons with Mental Illness
and Mental Retardation" (5.731, H.2013), which would extend rights
already accorded people residing in state institutions to those in
Questions about human rights restrictions figure prominently in the day-to-day work of clinicians and human rights committees, and significantly help to determine the tone and spirit of staff-consumer relationships as well as the quality of care. Tensions inevitably arise between medical paternalism and consumer advocacy. This article tries to provide clinicians and advocates with practical ways to resolve such tensions ethically, legally, in a clinically sound manner, and with respect for the decision-making autonomy and health of persons diagnosed as mentally ill. Perspective-sharing and consensus-building can help clinicians and advocates who find themselves in an adversarial posture develop strategies for working cooperatively out of a shared dedication to the consumer.
Massachusetts law defines the rights of mental-health consumers in state facilities with respect to mail, visits, and telephone calls as follows:
Any mentally ill person in the care of the department....... shall be provided with stationery and post-age in reasonable amounts and shall have the right to have his letters forwarded unopened to the governor, to the commissioner, to his personal physician, his attorney, his clergyman, to any court, to any public elected official and to any member of his immediate family. The superintendent may open and restrict the forwarding of any other letters written by said person when in said person's best interest.These provisions, restated in the regulations of the Department of Mental Health (DMH),3 leave considerable room for clinicians or administrators to interpret what is "reasonable," "for good cause," or in someone's "best interest." For example, a clinician may determine that it is in person's best interest to prevent her from embarrassing herself or breaking laws. At the same time, this terminology establishes a general standard, however vague, by which arbitrary restrictions on civil rights can be challenged. The DMH Human Rights Handbook makes clear that restrictions of rights must be based on specific, documented clinical judgments made in the here and now, not blanket presumptions based on diagnostic categories or historical generalizations:
A mentally ill person has the right to be visited at all reasonable times by his personal physician, his attorney, and his clergyman, and the right to be visited by other persons unless the superintendent determines that such a visit... would not be in the best interest of the mentally ill person and incorporates a statement of the reasons for any denial of visiting rights in the treatment record of said person. In addition....a mentally ill person in the care of the department shall have....reasonable access to telephones to make and receive confidential calls.....provided, however, that....[this right] may be denied for good cause by the superintendent or his designee and a statement of the reasons for any such denial entered in the treatment record of such a person.2
The determination to restrict any of these rights is a clinical decision, made by the head of the facility (or designee) in order to avoid serious harm to the consumer or for other good reason in the consumer's best interest. Unless this explicit determination is made for the particular consumer, there may be no restriction. Restrictions should be as limited as possible and still avoid harm to the consumer, and should not occur if there is an alternative, less restrictive way of avoiding the harm.4Such language legitimizes the sometimes uncomfortable questions raised by consumer advocates.
Paternalism has both beneficent and controlling underpinnings. The
decision-making power which the law still concedes to "the
superintendent or his designee" in part derives from the physician's
traditional ethical responsibilities toward patients and from the
duties which clinicians and institutions have toward society; these are
the two major components of "paternalism."5
Paternalism has its roots in the "duty-driven medical ethic,"6 which confers on the physician the obligation to exercise beneficence, defined as "tile principle that prompts physicians to cite their moral commitments and personal support for patients beyond just respecting their [the patients'] rights."7 Beneficence encompasses the desire to promote health and healing, to protect patients from the consequences of their illness, to enhance autonomy, and to promote personal development.
In the words of a recent commentary, "The model for medical paternalism is the caring parent who nurtures and protects a child without waiting for permission."8 Only a few decades ago, most people in this country expected physicians to use their specialized knowledge to make treatment decisions for patients. Despite recent revelations of the fallibility of the medical profession, our attitudes and laws are still influenced by this belief.
The nontherapeutic side of paternalism arises in part from clinicians' personal impulses to exert control. A controlling function is built into clinical work by the responsibility of clinicians and agencies to protect consumers, other individuals, and society from harm done by those in their care. In practice, paternalism extends well beyond this narrowly defined duty as expressed in the statute governing involuntary commitment, which requires a clear threat of serious harm to self or others.9 With clinical decision making increasingly influenced by scarce resources and fear of legal and financial liability, control often is expedient.10 It is easier to say "no" than to spend the time working out alternatives that respect consumers' rights. Inadequate staffing and training, high staff turnover, and the time pressures introduced or exacerbated by managed care can lead to safe, decisive, and arbitrary edicts rather than complex, sensitive, and individualized resolutions.11
In fact, simply gathering together a group of people who require some degree of care into a caretaking facility brings about a form of custodial control:
Custodialism is not only a response to insufficient resources but also a paternalistic institutional culture based on maintaining a safe and stable status quo. Custodialism socializes patients to the institutional setting, which values "good, quiet" patients who fit into the institution's rhythms..... .. Custodial cultures do not seek improvement in patients' functioning leading to greater autonomy and eventual discharge but rather encourage behaviors and activities that keep the institution a manageable community in which patients can function.12Clearly, there is great potential for abuse of the custodial role, just as beneficence can be abused when well-meaning clinicians intrude on the prerogatives of individuals competent to make autonomous decisions. The mental health consumer advocacy movement has arisen to counter such abuses. It should be noted, however, that many psychiatrists support the evolution away from paternalism.13 These psychiatrists recognize that the goals of clinical care must emphasize enhancement of autonomy,14 a major theme of consumer advocacy.
Some restrictions of rights immediately would be recognized as abusive
by lay people and professionals alike. For example, consumers report
that some hospitals routinely withhold all contact with the outside
world for the first few days after admission, and then restore contact
as part of a graduated behavioral program. In other words, a legal right
is being used as a discretionary reward and the consumer essentially is
held incognito. This is an outright abuse of human rights.
However, many conflicts over telephone access, mail, and visits typically involve well-intentioned attempts to reconcile competing principles or interests. These clinical/ethical dilemmas often elude categorization and do not lend themselves to a clearcut breakdown of the two opposing positions. The dynamics of these situations are complex and call for creative synthesis on a case-by-case basis.
Whereas hospitalized medical patients usually have telephones in their
rooms, those in psychiatric facilities must share a few public
telephones (perhaps just one) on the ward. Telephones are placed in
public areas because it is assumed that persons diagnosed as mentally
ill may require arm's-length monitoring in their use of the telephone.18
Defining the telephone as a scarce public resource can create various
kinds of conflict. An individual may make frequent or lengthy calls in
violation of house rules, thus provoking other consumers. Or a person
may be loud and abusive on the telephone, leading hospital staff to ask
that person to lower her voice or get off the telephone.
These are issues of ward management rather than clinical questions. Maintaining a sense of quiet, comfort, safety, and equity in the community is a legitimate institutional function. It is not, however, strictly related to the individual patient/consumer's best interest - except indirectly, insofar as the collective atmosphere affects the individual.
Mental health facilities generally assert a duty to prevent residents from harming others. Advocates counter that clinicians do not have a duty to protect third parties from emotional harm and that they have a duty to address behavioral issues raised by the exercise of rights through therapy rather than through control mechanisms.
The same questions of abuse and harassment arise with written as with
spoken communications. Clinicians may also be concerned that consumers
will "harm" themselves or others by applying for obviously unsuitable
jobs or making other unrealistic commitments. Consumer advocates
counter that such behavior is similar to that in which persons in the
community frequently engage and should not serve as a basis for denying
Clinicians also may be concerned when mail from a particular person regularly precipitates regression. Again, consumer advocates counter that receipt of such mail is common in the community and must be dealt with through therapy rather than restrictions.
Phyllis R. sent her sister daily letters stained with her own blood - hostile, vitriolic letters threatening revenge for the childhood sexual abuse she had suffered. When her sister asked the psychiatrist to stop the flow of letters, he explained that he had no real power and little clinical justification to do so. Instead, he suggested that her sister bring the letters unopened to the hospital, where he would show Ms. R. in therapy sessions that they were unopened. Here the psychiatrist, faced with a demand from a family member that he exert omnipotent control, maintained the clinical stance of fostering autonomy by trying to ally with the healthy side of the person whom he was treating.19
While actively psychotic, Muriel B. would go through the newspaper and cut out mail order forms which she sent either in her own name or someone else's name. The treatment team prohibited Ms. B. from sending any more mail orders. Her advocate opposed this, arguing that the hospital had no duty to protect direct-mail marketers from minor costs and inconveniences.
After her psychosis cleared, Ms. B. agreed that the intervention was justified. Some clinicians would say that the episode vindicates an interventionist approach, as with the 'Thank-you theory" of involuntary commitment.20 From a civil-rights viewpoint, however, the outcome was troubling. If the behavior had been a product of Ms. B.'s personality rather than her psychosis, she might have resumed the mailings as soon as she was no longer being monitored. If legal rights were fully respected and clinical resources and patience were unlimited, the clinicians would have explored the issue with Ms. B. in an attempt to dissuade her from mailing the orders, but would not have restrained her from doing so. After all, persons in the community make unwise mail order purchases and default on payment.
Occasionally, the people with whom a consumer wishes to maintain contact
perhaps the only people available for such contact) are those with
whom, in the view of clinicians, the consumer has been enmeshed in
destructive relationships. When clinicians observe that, every time a
particular visitor comes, the consumer is agitated or depressed for the
next few days, they may understandably want to curtail that person's
visits. Yet their concern for the consumer's developmental progress may
clash with a respect for his or her autonomy in intimate personal
Whenever Claire L. visited her family on a therapeutic weekend pass, she came back in worse shape than when she left. To the advocates, these predictable clinical set-backs had to be accepted as a price of respecting Ms. L.'s autonomy. Her clinicians agreed, but only reluctantly. They believed that supporting Ms. L.'s autonomy and growth in the long run meant encouraging her to accept the painful loss of separation from an enmeshed family. However, they would not do so at the cost of overriding her expressed wishes. Instead, they accepted the visits while exploring with Ms. L. whether she really wanted to go back to her family or was simply acceding to her family's demand that she resume a familiar role.
Negotiating the clinician-advocate interface is easier when the parties
surmount certain common misconceptions. Clinicians and advocates should
keep in mind the following points:
In particular, the arbitrary restrictions that inflame advocates are often touched off by staff-consumer conflict. A disruption on the ward leads direct-care staff to crack down on one individual, and the psychiatrist signs off on their recommendation. To prevent such escalation of minor disturbances, psychiatrists should help staff recognize and temper their desire to place restrictions, unless those restrictions are clearly justified.
The authors thank Dan De Hainaut, Massachusetts Mental Health Center Human Rights Officer, and Susan Fendell, Mental Health Legal Advisors Committee, for their helpful contributions.