introduction

Conundrums and Controversies in Mental Health and Illness

M. Carmela Epright and Robert M. Sade
About This Symposium This symposium consists of papers presented at the 15th Annual Thomas A. Pitts Memorial Lectureship. The endowed lectureship, held annually since 1993, is funded by the MUSC Foundation through a bequest from Dr. Pitts, who served on MUSCs Board of Trustees for 36 years and as its chair for 25 of those years. with respect to criminal behaviors, and whether, how, and under what circumstances respect for autonomy of psychiatric patients should be waived.

The Incarceration Revolution

Joseph Blooms keynote paper in this collection, The Incarceration Revolution: The Abandonment of the Seriously Mentally Ill to Our Jails and Prisons, touches upon on all of those questions. Bloom explains the shift from federally based programs dedicated to the care and treatment of the mentally ill to the relegation of these responsibilities to state government, beginning with the election of Ronald Regan in 1980. Since that time, state hospitals have been emptied, community resources have been overwhelmed, the population of mentally ill homeless people has swelled, and the prison system has become a primary holding arena for psychiatric patients. Bloom uses the state of Oregon as a representative case study, and concludes with arguments for a national mental health policy similar to those advocated by presidents Kennedy, Johnson and Carter, as well as reconsideration of revisions to civil commitment laws that were developed by the American Psychiatric Association in the early 1980s. The remainder of the symposium is divided into four sections, each preceded by a vignette designed to focus the discussion on a specic controversy in the eld of mental illness. We provide those vignettes here, with brief summaries of the papers that discuss them.

here are many good reasons for dedicating a symposium to issues in mental health and illness, but the main motivation for this one was rst and foremost concern for the well-being of psychiatric patients in a health care system that is illequipped to meet their needs. The conference from which this symposium is derived took place in South Carolina, which, in company with many other states, has drastically reduced funding for mental health services in recent years. The state hospital has eliminated approximately a third of its beds, patients experience increasingly lengthy waits for mental health services, and emergency rooms have become the primary source of acute treatment for many psychiatric patients. The criminal justice system is similarly overburdened by competing demands with regard to the mentally ill prisons contend with ever increasing numbers of mentally ill inmates and face complicated questions regarding how to establish a proper balance between treatment and punishment. In light of these challenges, both the health care system and society at large must consider anew old questions about the mentally ill what constitutes a mental illness, how such illnesses should be treated, whether psychiatric diagnoses should be considered mitigating factors

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

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Is Substance Abuse a Disease?

The U.S. Department of Health and Human Services (DHHS) is reconsidering whether substance abuse ought to be deemed a disability under the Americans with Disabilities Act (ADA). Under current ADA regulations, use of recreational drugs and alcohol do not qualify as covered disabilities. Protection is provided, however, to those who have successfully completed a drug rehabilitation program or who are currently enrolled in such a program. Furthermore, employers may utilize drug testing to ensure that employees who have completed or are enrolled in rehabilitation programs remain drug free. This differs dramatically from the ADAs rules regarding covered disabilities: employers are forbidden to require medical tests for applicants or current employees. ADA policies also allow employers to prohibit the use of drugs and alcohol in the workplace and to hold employees abusing drugs or alcohol to the same job performance criteria as other employees. DHHS is reconsidering this policy because the Secretary of DHHS wishes to respond to critics of the ADA who argue that substance abuse, like other forms of mental illness, is a biologically based condition that lies outside the individual sufferers control. The Secretary of DHHS appoints a committee to advise him on whether a change in the ADA is justied. The appointees are well-known and highly respected individuals, chosen because they have no preconceptions about the nature of substance abuse. From the preliminary materials provided to the committee, they learn that the ADA denes a disability as a physical or mental impairment that limits one or more major life activities. The committee is charged with resolving this central issue: if substance abuse is a biological condition, as proponents of policy change argue, then it meets the Acts denition of disability and thus qualies for inclusion. The committee hears several points of view, most prominently the opposing views that substance abuse is a moral choice made by the user and that substance abuse is a treatable, biologically based mental disease. For related article, see page 735 Several of the papers in this collection ask questions about the nature and diagnosis of mental illness. No chemical or imaging tests are readily available

to determine psychiatric diseases, so their diagnosis is rife with controversy. Some argue that commonly diagnosed disorders are not diseases at all, but are evidence of the patients weakness. This viewpoint is nowhere more prevalent than in the eld of substance abuse disorders, including alcoholism. Raymond Anton, in his paper, Substance Abuse Is a Disease of the Human Brain: Focus on Alcohol, concedes that individuals do have some role in deciding whether and when to use addictive substances, but argues, nevertheless, that alcoholism and other substance abuse disorders are, in fact, diseases. He reviews the traditional conception of disease and concludes that substance abuse meets the formal criteria for a disease state. In reviewing the heritability of substance abuse disorders, he confronts the commonly held idea that substance abuse constitutes a moral failing. He demonstrates that the brain of an addicted person is different from that of a non-addict, both before and after substance use, which results in a loss of control to resist using. The substance abuser has a responsibility to seek and adhere to a treatment regimen, making substance abuse disorders deeply problematic, because denial is part of the disease process. Yet, acceptance of the disease and active participation is necessary for treatment. Thus, substance abuse is similar to other psychiatric illnesses such as psychotic and mood disorders, insofar as the disease state itself interferes with the ability to seek treatment, while healing requires participation in treatment.

Criminal Responsibility
Wilhelmina Sykes had gone to her husbands place of employment to confront him about suspicions of indelity. They had a ght and she became very angry. While trying to exit the base, she was held up by a car blocking the exit. Sykes honked her horn twice, but the driver, Steven Walker, gestured rudely and continued to block the exit. Sykes anger rose still higher, and she rammed his car, damaging it and seriously injuring Walker. Sykes was arrested and charged with assault and battery with intent to kill. Sykes attorney led notice of intention to plead not guilty by reason of insanity, due to a conrmed diagnosis of borderline personality disorder, for which she had been under treatment for 5 years. Under the states insanity defense statute, a defendant may be acquitted by reason of insanity if the jury nds, by clear and convinc-

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ing evidence, that at the time of the offense, as a result of a severe mental disease, the defendant was unable to appreciate the wrongfulness of his conduct or was unable to conform his conduct to the requirements of the law. The prosecution asks the court to disallow the insanity defense and exclude the proffered testimony on the ground thata personality disorder, in the absence of an Axis I disorder, does not constitute a severe mental disease or defect.Out of the presence of the jury,an expert witness for the prosecution testies that Axis I disorders refer to conditions typically characterized by major abnormalities of a persons thinking or mood that impair normal metal and emotional functioning, while personalitydisorders refer to clusters of personality characteristics that can lead to problems in the persons life and relation with others.The prosecutors arguethat Sykes attack might be understandable in light of her personality disorder, but that it cannot be excused on that basis.The expert witness testifying for the defense asserts that personality disorders have a basis in the biology of the brain, so should be considered equivalent to Axis I disorders relative to decision making and responsibility for criminal acts, and that excluding them would be arbitrary. In this case, in particular, the expert would be prepared to explain how Sykess disorder affected her behavior at the time of the offense. How should the court rule? For related articles, see pages 745 and 760 The clinical syndromes called Axis I disorders, such as major depressive disorder, bipolar disorder, and schizophrenia, have become generally accepted by the general public, but the characterological nature of Axis II disorders, such as antisocial, narcissistic, and borderline personality disorders, are less widely understood. Their symptoms are not easily treated and, at least on their face, appear to be more attributable to the individuals choices rather than to a disease state. Using the case of Mrs. Sykes as an example, Robert Kinscherff s paper, Proposition: A Personality Disorder May Nullify Responsibility for a Criminal Act, and the commentary offered by Richard Bonnie, Should a Personality Disorder Qualify as a Mental Disease in Insanity Adjudication? consider whether these character-based disorders could mitigate or even nullify responsibility for a criminal act. Kinscherff argues that current advances in neurocognitive science and behavioral genetics obliterates the distinction between Axis 724

I and Axis II disorders both sets of disorders have genetic and environmental etiologies and predictable clinical courses, so if the diagnosis of an Axis I disorder can justify invoking the insanity defense, no clinically sound reason justies not doing so for an Axis II diagnosis. Kinscherff further contends that what counts as a mental disease or defect is a social and moral judgment, not clinical. He proposes that instead of barring the not guilty by reason of insanity defense to those with personality disorders, persons who have committed crimes as a result of these disorders may, under some circumstances be subject to involuntary commitment, if they pose a risk to others in virtue of their psychiatric condition. Richard Bonnie agrees with Kinscherff that proper rulings ought not hinge on diagnostic categories but rather on the defendants mental and emotional functioning at the time that the offence was committed. The federal courts and roughly half the states do not include a volitional prong of the insanity defense (that is, they do not focus upon whether the defendant could conform his or her conduct to the requirements of the law); instead they focus only upon the cognitive prong (that is, they focus on whether the defendant could appreciate the wrongfulness of his or her conduct). The impairment is relevant, not the diagnostic category a categorical exclusion of evidence stemming from an Axis II disorder would be unfair and arbitrary, notwithstanding the few jurisdictions, such as California and Oregon, that make such specic exclusions.

Refusal of Medication to Avoid Execution

Roger White, 48 years of age, awaits execution for the March 8, 1992, murder of Carol Martin and her 12-year-old son Marcus. White shot Martin and her son during a robbery at the Burger King restaurant where Martin worked. White is afflicted with paranoid schizophrenia, but was found guilty of the double murder and faces execution despite his mental illness. He has suffered psychotic episodes including paranoid delusions and auditory hallucinations for most of his life: he was originally diagnosed with paranoid schizophrenia when he was 19-years-old. His psychotic symptoms have been well controlled with medication, which he took willingly most of the time before his incarceration. His symptoms were under good control at the time of the double murder. Gary Milsap, M.D., is a recently certied forensic psychiatrist is employed by the prison system

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to provide psychiatric treatment for inmates. Dr. Milsap notes that White is currently aware of his impending execution and the reasons for it, and that, without medication, he is highly likely to experience deterioration of his mental state and an increase in psychotic symptoms. This development will diminish or negate his understanding of his death sentence and his execution. Since his incarceration, White has refused medical treatment, but has been forcibly hospitalized and temporarily medicated on several occasions to mitigate the imminent threat posed by violent, psychotic outbursts. The prosecutor asks the criminal court for an order to prepare White for execution by using whatever forceful means are necessary to administer his anti-psychotic medication. The court nds that Whites right to refuse treatment is outweighed by the states interest in carrying out a criminal sentence, and orders the warden to medicate White forcibly so that he remains competent and can be executed. The warden presents Dr. Milsap with the court order and requests that he prescribe appropriate medication for treating the prisoner, despite the prisoners express refusal of medication to relieve psychotic symptoms when he was competent. Dr. Milsap has not been faced with a situation like this in his nascent career, and hesitates, wondering whether his role as a physician precludes using force to medicate an unwilling patient who is trying to prevent his own death. For related articles, see pages 764 and 774 Howard Zonana, in his paper, Physicians Must Honor Refusal of Treatment to Restore Competency by Non-Dangerous Inmates on Death Row, examines the question of how autonomy intersects with the interests of justice and the roles and responsibilities of physicians. The degree to which the mentally ill possess the right to refuse medication is a subject of much debate. The 1986 Supreme Court ruling in Ford v. Florida upheld a ban on executing insane prisoners on death row, in which Justice Powells concurring opinion has become the de facto standard: I would hold the 8th Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it. The Ford case opened a series of ethical questions regarding the participation of psychiatrists in death row cases, such as whether it is acceptable for them to perform tests

for determining whether inmates are competent for execution, to treat incompetent inmates in order to restore their competency to be executed, and to treat a death row inmates anxiety or depression arising from their impending executions. Ultimately, Zonana argues against physicians playing any role in executions, because [p]hysician participation in death row casescauses role confusion wherein the doctor has to take on the role of both healer and executioner, which is not only difficult for patients (especially for those with psychotic disorders), it threatens the autonomy of patient and physician alike. To the contrary, in their paper, Physicians Should Treat Mentally Ill Death Row Inmates, Even If Treatment Is Refused, Melissa McDonnell and Robert Phillips argue that it is morally acceptable for physicians to help restore competency for execution. Capital punishment is permissible in the American criminal justice system, so should be considered morally the same as other forms of just punishment. A psychiatrists duty to patients should not be affected by the physicians opinion on social or moral issues or the patients legal status. A physician is on safe ground as long as he is motivated by a desire to maximize comfort and minimize suffering, rather than a desire to facilitate an involuntary death. When restoring competency for execution, the physician is not the proximate cause of death; rather, the cause is the justice system, and the death would take place regardless of physician involvement. Whether the physicians involvement is right or wrong is less the source of the heat of this debate then the proximity of that involvement to the execution of the penalty.

Treating Mental Illness by Force

Eve Hyde is a 42-year-old woman with a history of seven admissions to the state psychiatric hospital, four of which were involuntary. The police brought her to the hospital six weeks ago because they found her wandering through traffic wearing only her undergarments. She had become agitated and explosive when police detained her; she attempted to grab an officers weapon while shouting that she needed a gun to kill you, me, and everyone else. Ms. Hyde has a history of violent behavior. Her most recent prior admission, six months ago, was also involuntary; at that time, police brought her to the hospital because she used a baseball bat to destroy her apartment in response to the Red Sox losing a game to the Yankees, and then turned

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the bat on her brother when he attempted to prevent the property damage. She has had diagnoses of schizoaffective disorder, posttraumatic stress disorder (PTSD) a result of childhood sexual abuse perpetrated by her father, and the subsequent suicide of her father, which she witnessed visual and auditory hallucinations, and delusions. She also has a history of non-compliance. On this admission, a probate court ordered Ms. Hyde to undergo treatment by the psychiatric staff until she is no longer a danger to herself or others. Her symptoms have improved markedly, so the psychiatric staff is reviewing her hospital course and current condition. Her speech is organized and logical, she is clean and appropriately dressed, she denies suicidal and homicidal ideation, and she agrees to contact her psychiatrist if she starts to feel the need to harm herself or others. The patient wants to be discharged from the hospital. She understands that she suffers from PTSD, and has agreed to continue treatment with antidepressants. However, she refuses counseling, notwithstanding her statement in the past that her relationship with her psychologist gets me through the week and keeps me sane. She lacks insight into her schizoaffective disorder and denies that she has ever experienced visual and auditory hallucinations or delusions. Ms. Hyde claims that she is a victim not psychotic and atly refuses to accept any form of treatment intended to help her acknowledge and prevent psychotic episodes. The patient has a strong history of non-compliance and violent behavior, and she has no insight into her psychosis; yet, she is currently free of psychotic symptoms. Her physicians must decide whether to accede to her wish for discharge from the hospital without outpatient treatment for her psychosis, discharge her with involuntary outpatient treatment, or continue her hospitalization. For related articles, see pages 789 and 799 Mark Cherry, in his paper Non-Consensual Treatment Is (Nearly Always) Morally Impermissible, argues that a person ought to have authority over his or her own body, a view that is central to nearly all conceptions of moral theory and is embodied in common law, which holds that persons must be secured against battery and maintain a right not to be touched. He shows that other principles, most notably benecence, are relevant to discussions regarding forcible treatment. Nevertheless, the right to maintain authority over 726

ones own judgment and to assess potential risks and benets as they relate to ones own person is foundational to contemporary secular bioethics. Mental disorders might render some individuals unable to make informed, competent decisions regarding their own treatment, so that paternalistic judgments rendered by mental health professionals or the courts might be necessary. However, such cases are far more rare than proponents of forced treatment would admit. He advocates for greater use of psychiatric advance directives that capture the moral authority of individuals over themselves, permitting these patients to stipulate their psychiatric treatment preferences or designate a surrogate to make decisions if they become truly incapable of providing an informed consent. Carmela Epright is similarly concerned about maintaining patient autonomy; indeed, her concern for patients continuing autonomy leads her to argue that it would be appropriate, in some cases, to coerce patients with psychotic disorders to undergo treatment in order to preserve their future decision-making capacity and to protect their ability to recognize and respect the autonomy of others. Because autonomous choice depends upon certain human functions such as the ability to reason, judge, and assess consequences, patients cannot be said to be making free and autonomous decisions if those capacities are compromised. Epright demonstrates the ways in which psychotic disorders may compromise these functions in the long term by examining current evidence regarding the brain-based impact of refusing, rejecting, or delaying treatment. Without treatment, some patients with psychotic disorders ultimately compromise the very brain functions that make autonomy and autonomous choice possible, yet empirical data show that standard treatments for psychotic disorders generally help to mitigate the loss of these functions. She concludes that coercing treatment in the short term might well preserve the possibility of future goods, including insight into the damage caused by the disease state, greater cognitive function, protection of the brain functions necessary for autonomous choice, and preservation of the patients ability to respect the rights of other persons.

Conclusion
Myriad ethical and legal problems plague the eld of mental illness, and from this plethora we have chosen to explore in this symposium a few that are particularly controversial. The discussions in the following pages, we believe, are especially effective in illuminating the complexities underlying the problems posed by the four vignettes presented above. We trust you will agree with this assessment.

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