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To the US Congress: Update our nation’s mental healthcare laws

Update our nation’s mental healthcare laws, and mandate their consistency and constitutionality. These laws pertain to the detention of Americans  – who have not been convicted or even accused of any crime  – on our own soil in psychiatric care facilities, as well as conditions in these institutions, which are currently not even suitable for animals. 

WHEREAS, mental health “emergency detention” laws in many states, as they currently stand[1], are unconstitutional, because they permit a psychiatric hospital to detain and incarcerate a citizen (or lawful permanent resident of the US, or anyone else) based on a subjective assessment of dangerousness by only one psychiatrist.  There does not need to be probable cause – i.e. the detainee does not need to be carrying a weapon, or to have committed any crime, for a psychiatrist to detain him. The doctor signing the form does not need to be very experienced; in many states a junior (i.e. resident) doctor can do an involuntary admission, unsupervised.  And there does not need to be more than one doctor involved for the first two to three days in many states.   

This can hardly be considered due process.  In New York, for example, after two days, a hospital only needs to produce another psychiatrist who agrees with the first one to continue to detain the patient[2], and at fees of $3700+ a day, it is well incentivized to do that.  The detainee's only recourse is to ask the director of the hospital for a hearing, which may or may not be granted, and only after five days of asking for it.  The current system allows such egregious abuse to occur unrestrained, with only rare regulatory sanctions for the hospitals involved.  The loose wording of New York's emergency detention law, and similar laws in other states, encourages capricious decisions by inadequately trained and poorly supervised doctors.  

WHEREAS, when a hospital utilizes emergency detention statutes to detain non-dangerous people who are on Medicaid or Medicare, this constitutes fraud against the federal government, because it is by definition “unnecessary services”[3].  Emergency detention statutes apply specifically and exclusively to individuals who pose imminent, severe physical danger to themselves or to other people, i.e. they must be suicidal or homicidal.   

WHEREAS, there is an alarming variation in state laws governing emergency detention in mental hospitals, from loose and vague provisions which award the most junior doctors with virtual omnipotence to detain people without notice, to more strictly phrased statutes, where for example the facility director must sign off on every emergency admission, doctors must provide more detailed documentation about the necessity of detention, and in some states, no emergency detention without advance notice is permitted at all.   Emergency detention laws must be made more specific and consistent across the country, to ensure that dangerous people are detained but nonviolent ones are not.  

WHEREAS, the police routinely refuse to respond to penal code violations inside a psychiatric hospital,so if a patient is assaulted inside a hospital the police think it is not their problem.  This is untrue, but the law should be made clearer on this point.  How can the American law enforcement establishment complain about violence by mentally ill people, while they refuse to follow up on complaints from psychiatric hospitals about violent staff?  Wouldn't you expect the police to deal with it if you found out your loved one were assaulted in a hospital?  

WHEREAS, we believe there is no justification whatsoever to forcibly strip a non-dangerous human being of his or her clothes in a mental health care context, whether in the guise of a search or for any other reason.  Such psychiatric “treatment” is a violation of our constitutional rights to due process, to freedom from unreasonable searches, and freedom from cruel and unusual punishment.  It is hypocritical for the psychiatric establishment to approve of policies allowing mental health workers to perform a violent act that they refer to as "automatic disrobement" (i.e. forcible stripping) on nonviolent patients. This medieval form of so-called "psychiatric treatment" has no place in 21st century healthcare.  There are other less invasive means of performing a search on a patient, such as a pat-down or wand search.  Furthermore, it may be discriminatory because some patients may be rape survivors, or be physically fragile, or attach religious significance to certain articles of clothing.  

WHEREAS, in addition to being unconstitutional, many state laws allowing emergency detention in mental hospitals also violate the Americans with Disabilities Act[4], because disabled citizens are entitled to the same due process as every other American. Under the ADA Act, mental disabilities such as schizophrenia or Alzheimer’s are as significant as physical ones such as a missing limb.  Psychiatric patients must be shown the same respect of their constitutional rights as medical patients.  

WHEREAS, there is no legislation (U.S. or New York) requiring psychiatric hospitals to have security cameras in their wards, which is carte blanche for staff to abuse patients, and for dangerous patients to attack nonviolent ones. Under current laws, use of force incidents do not need to be videotaped in hospitals, but they do in prisons, at least federal ones.  The use of security cameras should be mandatory, to protect both patients and staff.  The excuse of privacy protection is frequently used in the argument against cameras, but there are modern technological means of dealing with this, for example, concealing another patient’s face by blurring it in video editing.  

WHEREAS, U.S. federal prison policies[5], and the international humanitarian law governing the treatment of prisoners of war (Third Geneva Convention[6]), are more stringent than U.S. laws applying to psychiatric hospitals.  Hospitals aren't required to guarantee patients any fresh air time, visits from their family, freedom of communication, drinking water, appropriate clothing, retention of personal items, and most importantly, freedom from torture, cruelty and corporal punishment.  This means that even Saddam Hussein would have been guaranteed more respect of his human rights than psych patients are.  It's shocking that such egregious human rights abuses could occur in any American hospital, against people who have not been convicted of any crime.  Psychiatric hospitals should be required to grant to their patients – at a minimum – the same rights as prisoners have, and the fact that they currently do not is an embarrassment to our country.  

WHEREAS, the facilities even at Guantanamo Bay are better than the so-called "best" psychiatric hospitals in the country.  And Gitmo is being upgraded too, at great expense, thanks to the federal government.  It will have a soccer field, DVDs, newspapers and library books, while psychiatric hospitals are not required by law to have any exercise, education or entertainment facilities at all.  The so-called "best" psychiatric hospital in metro New York, for example, has none of the features of the new Gitmo or for that matter, any federal prison.  And yet a psych patient’s cost to the taxpayer of $3700+ a day  in that same hospital vastly exceeds the roughly $100 a day that Americans pay to support a federal prison inmate.  (NB: the per diem cost is even higher in state mental hospitals, at over $5000).  Recall that psychiatric patients have not been convicted of any crime, and most are not dangerous at all.  Psychiatric hospitals in the US should be required to have – at a minimum – facilities on a par with prisons, and the fact that they currently do not is a disgrace.  

WHEREAS, no current law exists requiring a hospital to show psychiatric patients its policies and procedures on request.   In other words, hospitals say you must abide by their rules but they are not required to tell you what the rules actually say.  This is akin to a company requiring you to sign a contract to buy its services, without allowing you to read the contract. A hospital’s policies and procedures should be available for a patient’s review at any time.  

WHEREAS, there is currently no specific legislative requirement for a hospital to show patients their own medical records while they are in the hospital – other than the HIPAA 10-day federal law[7], for which allegedly no "private cause of action" exists, i.e. you can't sue hospitals that violate this law. Patients should be allowed to see their medical records at any time, with reasonable notice, and they should be allowed by law to sue a hospital that fails to honor this request.  A lack of availability of medical records can be life threatening for a psychiatric patient.   

WHEREAS, psychiatrists are currently not prohibited from including highly sensitive personal information about a patient in medical records (for example, identity of a patient’s sexual partners or orientation, or sensitive information about a patient’s finances).  This is a violation of HIPAA privacy laws, and of sexual orientation nondiscrimination laws.  Small wonder that patients frequently choose not to share their psychiatric records with other doctors, even when that information could be life-saving.  Readmission rates could be cut by 40% if patients felt more comfortable about sharing their psychiatric records[8].  If there is no compelling reason to include sensitive personal information in medical records, i.e. unless exclusion would pose imminent physical danger to the patient or someone else, it should not be included.  Further, permission should be granted to redact sensitive information from existing medical records which may need to be transferred to another hospital, or which might appear in a public forum, (e.g. judicial proceedings.)  

WHEREAS, legal advisory services provided by the state court system for psychiatric patients should have deadlines clearly defined by law.  This is necessary to prevent hospitals from detaining patients indefinitely without legal counsel or a hearing. Psychiatrists should not provide legal advisory services unless they are trained and licensed to do so.  

WHEREAS, language used by existing legislation to refer to mentally ill people is discriminatory.  Such terms as “lunatic”, “insane”, “feeble-minded”, “mentally defective” and even “mental hygiene” (which implies a lack of cleanliness) are derogatory, outdated, perpetuate stigma and should be purged from our laws.  They unfairly perpetuate the stigma of mental illness.  Even the use of terms like “addiction” is discriminatory, when applied to a patient’s need for non-narcotic psychotropic drugs to keep his illness under control. Such pejorative terminology is not used to refer to, for example, cholesterol-control medications, so why should it be allowed for non-narcotic psychiatric drugs?  Would you want your own child referred to by a court as “mentally defective”? Emotionally neutral language must be employed to refer to or classify psychiatric patients in legislation.  

WHEREAS, laws for humane treatment of animals are more stringent than mental health laws pertaining to patients' rights (New York law is provided as an example[9], but animal welfare laws are broadly similar in other states). Confined animals are required to have drinking water and exercise, and torture is strictly forbidden. Failure to provide food and water to animals is a class A misdemeanor punishable by a year in prison and a hefty fine, however mental hygiene laws fail to make any mention of drinking water, nor do they have any specific requirements about fresh air time and exercise.  This means that your dog is entitled to better protection of his rights in an animal hospital then you are in a psychiatric one.  The definition of torture of animals is laid out clearly in the law, however mental health laws fail to define torture at all. Torturing animals can even be a felony crime. If neither the police nor the state Office of Mental Health takes the responsibility for violent crimes committed against mental patients, then who will do so?  The Governor?  The President?  Mental health laws must be rewritten to ensure that patients’ human rights are protected.

  WHEREAS, the foregoing statements apply to a large swathe of the population.  Fully ONE QUARTER of the country's population is being treated for a mental health disorder[10] – 75 million people – at a cost of over $300 billion.  Just to look at depression, for example: 11% of Americans over the age of 12 are treated for depression (source: CDC[11]).  Additionally, one in nine people suffer from anxiety disorders.  And there are many other common mental health conditions to consider, e.g. Alzheimer's (one in eight older people suffer from it), Alcoholism and drug addiction (1 in 10 people), and Autism (1 in 88 children, and growing). The numbers will grow as the population ages, because seniors are more likely to suffer from common mental illnesses such as dementia and depression than younger people are.  These days, you would be unusual not to have a friend or loved one who suffers from a psychiatric disorder.  Mental illness is not "someone else's problem" anymore.   Most Americans consider terrorists such as the Adam Lanzas of the world to be mentally ill, and 88% of Americans believe that preventing future acts of terrorism should be our top U.S. foreign policy goal[12].  But clearly, given that 75 million Americans are suffering from one mental health condition or another, not all mentally ill people are terrorists, so they should not be treated as if they were.  Our country's mental healthcare funds should be invested in the millions of people who both want and need treatment, not squandered by forcing unwanted, unnecessary and poor quality treatment on non-dangerous people.  Fewer than one-third of adults and one-half of children with a diagnosable mental disorder receive mental health services in a given year.[13]  We must not allow our healthcare system to worsen the mental health of those non-violent Americans who are already struggling, while we let dangerous mentally ill people roam our streets.   We, the undersigned, request that our elected representatives act in accordance with the Constitution of the United States of America, to pass new federal legislation mandating consistency and constitutionality in state mental health laws, pertaining to detention of Americans on our own soil, and to their care in psychiatric hospitals.   

The United Kingdom has recently passed a “Mental Health (Discrimination) Act”, and it is time for the US to make a similar effort.[14]    

We are not demanding special treatment of people with mental disorders; we only ask that they be afforded the same respect of their rights as every other American.   We feel it is our patriotic duty to request such action from you, our elected officials, and your duty to respond in an expedient and responsible manner.

                                                                                                                                                 
[1] Summary of all state emergency detention statutes: http://spooked-blog.blogspot.com/2013/02/summary-of-state-laws-pertaining-to.html

[2] http://www.omh.ny.gov/omhweb/forensic/manual/html/mhl_admissions.htm

[3] http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/Fraud_and_Abuse.pdf

[4] ADA Act: http://www.ada.gov/pubs/ada.htm

[5] Federal Bureau of Prisons – Inmate Policies: http://www.bop.gov/DataSource/execute/dsPolicyLoc

[6] Third Geneva Convention: http://www.icrc.org/ihl.nsf/FULL/375  

[7] HIPAA laws pertaining to a patient’s access to his/her own medical records:http://www.hhs.gov/ocr/privacy/hipaa/administrative/privacyrule/index.html

[8] "Protecting" Psychiatric Medical Records Puts Patients at Risk of Hospitalization, Johns Hopkins, 12/31/2012

[9] refer to N.Y. AGRIC. & MKTS. LAW § 356, 353, 353-a, 359

[10] National Institute of Mental Health statistics: http://www.nimh.nih.gov/statistics/index.shtml

[11] http://www.cdc.gov/features/datastatistics.html

[12] Gallup.com, “Americans Say Preventing Terrorism Top Foreign Policy Goal”, 2/20/13.

[13] source: NAMI (National Alliance on Mental Illness).  http://bit.ly/YiD1M1

[14] NB: The name “Mental Health Nondiscrimination Act” would be more consistent with existing US laws designed to protect other groups from discrimination).

 

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  • To: All members of the Congress of the United States of America; all Senators and Members of the House of Representatives


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