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- In the Matter of Alberta Lessard-VI
by Jeffrey L. Steingarten
NOT FOR PUBLICATION WITHOUT WRITER S CONSENT INSTITUTE OF CURRENT 7ORLD AFFAIRS JLS In Matter Alberta Lessard VI West Street New York New York 10011 May Mr Richard H Nolte Institute Current World Affairs Fifth Avenue New York New York 10017 Dear Mr Nolte On October almost after Alberta Lessard dropped window ledge West Greenfield Street committed North Division Mental Health Center federal district court reached decision Lessard Schmidt It afternoon Bob Blondis Tom Dixon heard waited central office Milwaukee Legal Services friend bring advance opinion At clock evening courier arrived I cotuldn believe Blondis recalls Just going through believe everything Dixon We couldn believe We really ecstatic The federal district court granted Alberta lawyers practically everything asked something Jeffrey Steingarten until recently Institute Fellow interested relationship among psychoanalysis psychiatry These final newsletters Friends telephoned purchased fitting plenty drunk night Alberta alone evening herself evenings After committed recently friends automatically always stuck But thirds people afraid associate either because stigma placed someone tally because might affect their affect socially People But always accept things I would I depressed I I I I I wouldn depression It party Blondis recalls But Alberta night person So after party celebrated coffee donuts Alberta house Of course Alberta happy outcome The federal court order invalidated commitment North Division which Judge Seraphim renewed month after month since previous November though Alberta allowed return conditional leave within hearing Now medication drowsy mouth cotton obligation report Day Care Center mental hospital whose staff could there stepped Alberta restored citizenship For first Ws empowered contract privileged could serve could marry In weeks Ele ction Day Alberta could against President Richard M Nixon Now again Alberta hesitated I feeling would later I still going picked somehow The defendants questioning decision saying would appeal But I think I anyway nobody challenged I Nixon I But I think I either Neither deserved there The anything today wealthy socially prominent politically astute They taken liberties combination unions It unions practically taking government And I fighting strongly You Teachers Association dismissed As Alberta discover entry hospital record Conditional Leave The administr ators North Division refused demand change Illegally Unconstitutionally Committed though federal court Eastern District Wisconsin voided commitment Alberta spent years trying clear herself public trying prove sanity The federal court landmark decision Lessard Schmidt course occasion declare Alberta It unanimous decision Circuit Judge Sprecher writing twenty opinion himself District Judges Reynolds Gordon After describing facts Alberta story discussing jurisdic tional issues Judge Sprecher signalled colleagues inclined merely tinker Wisconsin commitment procedures would undertake fundamental review traditional persons accused mental illness treated century And tically every point Dixon Blondis raised three federal judges thebenevolent purposes forced hospitalization cannot excuse disregard Constitutional safeguards Summing Judge Sprecher repeated familiar words Mr Justice Brandeis dissent Olmstead Experience should teach guard protect liberty government purposes beneficent The greatest dangers liberty insidious encroachment meaning without understanding The court found Wisconsin commitment procedures constitu tionally defective particulars failing require effective timely notice prospective patient charges against legal rights permitting commitment hearing which represented adversary counsel which hearsay evidence introduced which psychiatric evidence given without prospective patient having right remain silent ychiatric interview which proof beyond reasonable doubt required Rather traumatizing patient Judge Sprecher wrote panoply procedural formalities safeguards therapeutic effect He referred medical evidence indicates patients respond fvorably treatment being treated fairly treated intelligent aware human beings This declaration primarily article faith Judge Sprecher because medical evidence cited hardly impartial testimony Senator Sam Ervin hearings constitutional rights mentally Dr Thomas Szasz famous demanding abolition involuntary commitment moral grounds Bruce J Ennis A C L U lawyer favors abolition But Judge Sprecher quoted Dr Kevin Kennedy testimony Alberta commitment hearing Judge Seraphim chambers Alberta involvement lawye environmental influence accounted improved condition month spent North Division The federal judges decided prospective patient given probable cause hearing counsel present within forty eight hours detention reasonable grounds exist taining first place Even brief detention mental hospital Judge Sprecher wrote lasting effects individual ability function outside world stigma attached illness A hearing short notice observe rules evidence strict formality final commitment hearing afford prospective patient right notice counsel opportunity heard And added detainee appears hearing incapacitated medication accorded meaningful right heard Here Judge Sprecher cited testimony Senate hearings Often drugs themselves which responsible crazy behavior Tran quillizers often people blank starey ponding questions Replying argument hearing after detention mentally judge pointed until hearing there reason believe indeed mentally The federal judges placed strict outside limit amount person accused mental illness hospital before final hearing commitability weeks Against argument needed assemble psychiatric evidence hearing Judge Sprecher reasoned facilities state hospitals permit xamination within period because inadequate personnel difficult continued detention beneficial patient In their Blondis Dixon attacked commitment Chapter mental illness proper subject custody treatment vague overbroad constitutional suggest alternative Here would become among contro versial holdings opinion Judge Sprecher strict criterion Henceforth commitment would limited mentally dividuals judged imminently dangerous themselves others And immediacy danger proved Beyond reasonable doubt evidence recent overt attempt threat violence themselves others No longer could individual hospitalized against simply because others needed treatment hospital The protection perhaps protection property surely compelling enough reason justify deprivation liberty But parens patriae doctrine state hority guardian children mentally longer enough For thing mitment based mental illness treatment seemed Judge Sprecher objective commitment based dangerousness Here judge quoted review article written lawyer psychia trist psychologist pointed inherently arbitrary nature label mentally Obviously definition mental illness largely dependent norms adjustment employs Usually phrase mental illness effectively masks actual norms being applied And because unavoidably ambiguous generalities which American Psychiatric Assocfation describes diagnostic categories diagnostician ability shoehorn mentally diseased class almost person wishes whatever reason there For another thing commitment mental hospital peril experience Judge Sprecher wrote He reviewed length drawbacks being committed Wisconsin devastating civil rights serious accompanying criminal conviction social stigma following release attendant difficulty finding buying house statistics showing Wisconsin nationwide death among resident mental patients times population large difference explained advanced average patient chilling doctor patient ratio mental hospitals lower ratio outside Under circumstances Judge Sprecher wrote difficult rational choice instances would forgo treatment The power incarcerate harmless mentally seemed Judge Sprecher accord quite ferent treatment physically violation Equal Protection Clause Fourteenth Amendment Persons hospitalization allowed choice whether undergo hospitalization treatment reasoned The should persons treatment mental illness But Judge Sprecher completed sentence oddly revival parens patriae power unless state prove person unable decision about hospitalization because nature illness Nowhere opinion Judge Sprecher amplify qualification gerousness standard closing summary But these twenty three words almost casually inserted opinion would years permit judges throughout Wisconsin violate inclined spirit Lessard Schmidt As final check state power deprive harmless person liberty Judge Sprecher persons suffering condition being mentally alleged committed crime cannot totally deprived their liberty there draatic means achieving treatment He cited Supreme Court Shelton V Tucke_r basic concept American justice though governmental purpose legitimate stantial purpose cannot pursued means broadly stifle fundamen personal liberties narrowly achieved The breadth legislative abridgment viewed light drastic means achieving purpose Accordingly Judge Sprecher state committing authority itself burden showing whether restrictive modes treatment available patient treatment treatment hospital placement friend relative these incarceration mental hospital At opinion Judge Sprecher effect invalidated commitments every patient eighteen years older Wisconsin mental hospitals He state Department Mental Hygiene ninety review every these cases Some wrote might persuaded consent voluntary status others would released posed immediate danger themselves others For patients still seemed dangerous state would arrange judicial hearings which newly decreed procedural rights would observed hundred thousand hearings coming months And those patients gained their release Judge Sprecher ordered state Wisconsin assist their readjustment outside Throughout opinion Judge Sprecher indicated simply transferring wholesale fashion rights criminals individuals accused mental illness Instead balancing Supreme C criminal cases On balance benefits prospective patient exercising given procedural right other costs state granting right particularly danger given protection frustrate state helping mentally afflicted In their brief Blondis Dixon urged example prospective patient counsel present psychiatric interview But using process balancing federal judges decided whatever benefit accrue patient having lawyer sLurely outweighed potential cripple commitment process While patient counsel should access psychiatric reports Judge Sprecher wrote unable point certain assistance counsel prove merially beneficial psychiatric interview determine right effective counsel tweighs interests state meaningful consultation Besides transcript recording psychiatric interview should patient lawyer adequate basis challenging examining psychiatrist conclusions court This claim which federal court found against Alberta lawyers The court declined their claim person accused mental illness should provided independent chiatric witness provided counsel The court since Judge Seraphim repeatedly offered consider whatever pendent medical testimony Alberta lawyers might produce sequently standing raise issue Perhaps difficult question court resolve process balancing whether patient should granted right remain silent psychiatric interview On patient dictates principle Judge Spre quoted Mr Justice Fortas Gault decision characterized Fifth Amendment guarantee command which Court broadly applied generously implemented accordance With teaching history privilege great office mankind battle freedom On state however practicality allowing patient refuse speak medical examiners Th prospect seriously individual being prevented obtaining needed treatment appears ludicrous Judge Sprecher acknowledged But resolved balance favor right remain silent supposition choice It expected patients Miss Lessard present desire person believe trust Only years experience would prove whether Judge Sprecher guess correct It would psychiatric community voice outrage In defendants appealed Lessard decision again twice Supreme Court United States remanded technical jUrisdictional grounds The essential legal issues still unresolved Meanwhile decision service Wisconsin courts The local Milwaukee judges claimed abiding years commitment hearings continued perfunctory lasting minutes With court appointed counsel rarely cross examining witnesses introducing testimony their judges still paying massive deference hasty opinions psychiatrists Blondis Dixon contemplated contempt action against local judges frustration Not until summer federal Constitution Milwaukee mental hospitals And state county Judges claimed Lessard apply urged other state attorney general twice Supreme Court Psychiatrists alarmed Lessard decision progeny other staes narrow dangerousness criterion commitment procedural safeguards designed curtail profession ditional power commit without judicial control One psychiatrist sounded battle It issue mentally place growing tyranny Even Harvard Dr Alan Stone criticized those colleagues committed people because maaies thing anxious Lessard would followed exactly virtual involuntary commitment There psychiatric sabotage Wisconsin elsewhere profession protect autonomy judges still willing judges their courtrooms For Blondis Dixon covered thing another enforce But Lessard extremely influential outside Wisconsin It became rallying point patients advocates comparable cases Kentucky West Virginia Alabama Pennsylvania Michigan suaded legislatures other states write rights Lessard decreed Alberta become milestone history mentally A Due Process revolution begun revolution whose ambiguous consequences lives patients practice chiatry still unfolding Tom Dixon sense Alberta elated toric victory October Blondis She began while extremely important decision gotten She institutionalized never money damages And other cases where messed still fruition She proba gotten whole thing maybe Blondis Dixon promised Alberta would right wrongs claimed beendone West Allis elementary school firing without proper hearing Marquette Uni versity letting complete doctoral degree education dismissing Reading Clinic Between interviewed Alberta fifty hours began collecting records schools They almost strike compromise West Allis Alberta roster teachers possible future But Alberta balked minute As Dixon remembers She could class students again Their parents might telling their teacher wacko might coming school complaining their being taught crazy Alberta couldn For another thing Albert scale demands public redress wrongs against It Alberta lawyers known esteemed attorneys pushed enough relief sought But enough lawyers found themselves position I remember precise relief Alberta wanted against Marquette Dixon problem It difficult believe could complete vindication And times seemed wanted complete vindi cation which legally attainable after events occurred Initially probably strong cases against West Allis Marquette But passed potential reaolving legally became caught It longer possible detail cases without being never completely satisfied Alberta intense sense personal justice She wanted cases pursued vindicating entirely particular position taken I suppose there ought But unfortunately quite impos sible legally And achieving immediate goals getting being readmitted Ph D program Bob I never facts straight The details become muddled intervening years But I somebody I Alberta On forty February issue American Medical Association Prism magazine photograph human skull There sockets where rolled triangular cavity between between teeth parchment scroll words Bill Rights antique lettering The skull appears again following times larger takes words illuminates The article Dying With Their Rights On attack decision Lessard Schmidt Darold A Treffert M D At forty Dr Treffert director Mental Health Institute Winnebago Wisconsin President Wisconsin Psychiatric Association Associate Clinical Pro lessor Psychiatw University Wisconsin Medical School Dr Treffert collector cases around country which mental patients phrase their rights For instance Rene Angela stand several hours streetcorner silently gazing other The police station house where women refuse speak gazing still The police telephone local prosecutor advice getting Rene Angola local hospital Release prosecutor dangerous themselves others Thirty hours later police summoned apartment where Rene Angola immolated themselves butcher paper Although percent burned writes Dr Treffert including chest upper upper Angola lived Rene But rights A woman admitted general hospital because condition psychiatrists sometimes an6rexia nervosa She fuses psychiatric treatment The local judge orders released grounds woman psychotic condition immediately dangerous Three weeks later starvation A attempts suicide swallowing pills signs psychiatric hospital against medical advice wishes family protesting never again The family lawyer advises under Lessard commitment impossible because there xtreme likelihood immediate herself others Next hangs hersel Two these tales horror Wisconsin aftermath Les Michigan where Dr Treffert wrote Dying With Their Rights On Bell instituted similar danger ousness standard relying Lesa precedent By April Dr Treffert article reissued Psychiatric Annals under quieter title without illustrative deathhead author collection stories grown A thirty California ordered released hospital court found imminent danger kills three children himself Michigan B2 shoots kills small after police refuse pleas locked Pregnant mother children decapitates front after repeated attempts commit failed Dr Treffert sources varied The S Bee personal communications Detroit Memphis Police Departmen testimony before California Senate committee There reason doubt these events happened Dr Treffert relates What Lessard another matter entirely Did Lessard decision result release large numbers violent hopelessly dependent mentally Was Dr Stone correct predicted Alberta would virtual involuntary commitment For years after federal court decision judge entire state Wisconsin seemed seriously Charles P Jones Dane County Court Madison affluent liberal university community Judge Jones courtroom laboratory looking consequences decision And provides starting point understanding ethical issues raised forced hospitalization mentally Commitment hearings before Judge Jones which average hours detailed I previously atten Psychiatric testimony perfunctory Milwaukee where Lessard service testifying psychiatrists county prosecutor appear appreciate reasons running commitment hearing rules other court business The patient always present permitted speak rights waived competent consent And while limits caused difficulty Judge Jones clerk Stu Schwartz generally workable Of special concern Dr Stone others patient right remain silent psychiatric interview But according Judge Jones Fifth Amendment guarantee crippled commitment process Jones estimates detainees refuse speak court appointed psychiatrists though warned their right lawyer Of according Ju Jones wouldhave refused speak evenwithouthavin beengrantedthe right refuse either because their condition coherent speech impossible because suspicious doctors And estimated refuse speak appointed psychiatrists because legal right sufficiently evaluated basis their behavior alone This leaves about detainees released because Lessard granted right remain silent these probably commitable As Circuit Judge Sprecher uneasily predicted Fifth Amendment guarantee sense dignity commitment proceedings without causing problems government And besides before Lessard prospective patient refused speak chiatrists judge recourse issue contempt citation meaningless gesture rarely Nor stringent requirements Les virtual involuntary commitment Dane County Here comparison disposition there Milwaukee revealing although still inconclusive In period January June example cases trial Milwaukee resulted commitment while Dane County cases This would confirm fears psychiatrists Drs Treffert Stone othera predicted Lssard would cause wholesale release irresponsible violent But further statistics shows roughly percentage received chiatric places The reason detainees avoided forced hospitalization Dane County chose undergo voluntary treatment either hospital outside agreed enter hospital voluntarily compared Mil waukee cases Dane County dismissed excha promi patient accept specified oUtpatient Thus safeguards Lessard patients released without Dane County Milwaukee where business conducted usual These statistics raise questions answer If threat commitmentdid Judge Jones courtroom would detainees Dane County voluntarily offered enter hospital patient treatment On other since threat Milwaukee greater werentt there voluntaries Dane County Can consent given institutional court setting considered voluntary One Soviet Union B mental patient population claimed involuntarily committed But several psychiatric writers recently observed enough effort rarely necessary court treat patient hospitalization indeed thepatient usually persuaded voluntarily In Well women considered mentally treated autonomous responsible individuals believed capable making decisions which their interests And presumption responsibility itself therapeutic value These conclusions throw question entire practice forced hospitalization For challenge ethical premise underlying notion mentally capacity responsible choice determination autonomy By American Psychiatric Association estimates voluntary hospital population considered violent dangerous majority harmless hospital treatment In other areas Anglo American generally abided familiar ethica precept J S Mill The purpose which power rightfully exercised member civilized community against prevent others His either physical moral sufficient warrant But mentally taken different stance It principle insane their wrote Justice Lemuel Shaw ordered Josiah Oakes McLean Asylum first American forced hospital though posed danger community For hundred twenty years medical profession delegated supply But doctors health itself important Mill concern individual respon sibility On guided injunctions Hippocratic corpus particularly Hypeos Lacking professional training patient ignorant comprehend information upset being information manner rational responsible Here Hypeos speaks physically Imagine rationality responsiblity would accord those considered mentally little freedom would prescribe decide their fates And battles between psychiatry Alberta provoked merely territorial struggles professional dominance control They heart madness henceforth morally ethically understood Jeffrey Steingarten Received New York June