Mental Disabilities Law Issues
| Jurisdiction | United States,Federal |
| Citation | Vol. 8 No. 5 Pg. 807 |
| Pages | 807 |
| Publication year | 1979 |
1979, May, Pg. 807. Mental Disabilities Law Issues
(This is the second in a two-part series on the rights of the mentally ill to receive adequate treatment for their conditions. Part I on statutory rights to treatment under Colorado's law was printed in the March 1979 issue on page 403. This month's column discusses the constitutional right to treatment.)
The origin of the doctrine that involuntarily committed and hospitalized mental patients have a constitutionally prescribed right to treatment may be traced to Dr. Morton Birnbaum's seminal 1960 article "The Right to Treatment"(fn1) and to a series of lower federal court decisions, particularly the opinions of Judge David F. Bazelon of the District of Columbia Court of Appeals.(fn2)
Birnbaum stated in his article that judicial recognition of the right to treatment would change substantive mental health law so that three questions must be answered in every case: (1) Is the person mentally ill? (2) If so, should the person be hospitalized or should he be allowed to be placed in a community-based outpatient program? (3) If the person is hospitalized or continues to be hospitalized, will adequate care and treatment be recieved in the institution?
Other commentators, particularly Thomas Szasz, have criticized the right to treatment concept, maintaining that the idea is "naive and dangerous" because it considers the problem of the institutionalized mental patient to be strictly medical, dismissing its economic, social, educational, moral and religious aspects. Szasz also saw another problem raised by the remedy proposed by Birnbaum---in the context of involuntary confinement, treatment would often have to be compulsory.(fn3)
Birnbaum responded to these criticisms by maintaining that recognition of the right to treatment merely requires:
. . . that a public mental institution meet certain minimum numerical standards for staff and physical facilities. This right should be enforced by writs of habeas corpus or equivalent administrative remedies and should require that a minimum number of consultations and physical examinations be conducted on all inmates within a given period of time.(fn4)
Another critic, Charles Halpern, objected to this approach on the grounds that an institution which meets such minimum standards still might not treat a particular mental patient in a manner...
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