Reconsidering Care and Coercion in Psychiatry: Kathleen Flaherty, JD

April 21, 2021
Awais Aftab, MD
Awais Aftab, MD

A lawyer discusses how the legal system treats (and mistreats) those with mental illnesses.

Conversations in Critical Psychiatry is an interview series that explores critical and philosophical perspectives in psychiatry and engages with prominent commentators within and outside the profession who have made meaningful criticisms of the status quo.

Kathleen Flaherty, JD, is a lawyer and currently serves as the Executive Director of Connecticut Legal Rights Project, Inc., a statewide non-profit agency that provides legal services to low-income individuals with mental health conditions on matters related to their treatment, recovery, and civil rights. She is a graduate of Wellesley College (’88) and Harvard Law School (’94) and has devoted her legal career to advocating for the rights of individuals with psychiatric disabilities. She is the recipient of many awards for her advocacy and legal work, including the 2021 Charles J. Parker Legal Services Award, recognizing excellence in career-long dedication to the delivery of legal services to the disadvantaged in Connecticut, and the 2017 Board of Directors Award by National Alliance on Mental Illness, CT.

Given her personal experience of receiving mental health services as a patient/service user and long career as a lawyer providing services to disadvantaged individuals with mental illness, Ms Flaherty is well-placed to recognize the deficiencies in our current psychiatric and legal systems, particularly when it comes to involuntary psychiatric care and treatment. Debates regarding social justice, disability and human rights, involuntary detention and treatment, expectations regarding safety and risk, and the carceral nature of inpatient psychiatric care are increasingly entering public consciousness. This exchange with Ms Flaherty delves into some of these intricate issues.

Aftab: Your experience in providing legal representation to low-income individuals with mental health conditions in matters concerning their civil rights, including involuntary commitment and involuntary treatments, offers you a unique perspective on the challenges facing individuals with mental illness that may not be readily apparent to psychiatrists. What sort of systemic difficulties and obstacles have you observed in this regard? What issues do you think are being overlooked by the current systems of mental health care, especially by psychiatrists?

Flaherty: Thanks for inviting me to have this dialogue with you. As the Executive Director of Connecticut Legal Rights Project (CLRP), I lead a team that represents clients who are eligible for mental health services from the State of Connecticut Department of Mental Health and Addiction Services. Many of the challenges faced by our clients are the same challenges faced by others in Connecticut and around the country: a lack of decent, safe, affordable, and accessible housing; insufficient voluntary services and supports because of chronic underfunding of the community-based system of care; and unequal opportunity when it comes to education and employment. You have asked about systemic issues I have observed in my legal work, and there is a long list.

The systemic difficulties and obstacles experienced by our clients subjected to the state actions of involuntary treatment and involuntary civil commitment are longstanding and pervasive. Systemic inequity and poverty are layered over discrimination that stems from disability.

Many police departments reflect the larger prejudices of their communities and use infractions and laws to criminalize disability, instead of providing accommodations and diversion into health care and meeting basic needs. Systemic problems within the state judicial action of involuntary commitment include ineffective assistance of counsel, lack of adequate due process, lack of access to independent expert witnesses, and treating judicial hearings like treatment team meetings in how they look at behavior and outcomes.

The judicial system does not have a realistic and accurate understanding of mental health conditions, which results in almost complete deference to proffered diagnosis and risk assessments, both of which lack a robust foundation in empirical science. The judicial system has limited awareness of the complicated efficacy (to the extent that it exists) of psychiatric treatment and medication, especially for the cohort of patients subjected to commitment. Once committed, the problems include unsafe conditions of confinement, police presence at hospitals, inadequate system response to allegations of patient abuse and neglect, and forced psychiatric treatment. The system often fails to provide adequate information about the risks and benefits of psychiatric medication so that patients can give truly informed consent. Finally, discharge planning is inadequate; patients’ rights to be discharged into the most integrated setting as soon as they are stable and ready for discharge is routinely violated.

Community supports and services necessary to discharge patients to the most integrated setting have not been measured, planned for, budgeted, and put in place. Tax cuts for the rich have been universally endorsed over adequate supports and services for individuals with mental health conditions to live in the community. Too often, NIMBY (“not in my back yard”) responses to proposals to build low-income subsidized housing for individuals with disabilities means a lack of opportunities to live in the community of one’s choice.

I recognize this is a lot; these are the issues we at CLRP wrestle with every day. They are the systemic issues that affect our clients’ lives and place barriers in the way of their opportunities to build great lives in the community. I hope that once more individuals realize all these other things are going on, they will recognize some of what they label as hostility towards psychiatry is not necessarily that—it is a railing against these profound systemic inequities and a call for psychiatrists to stop playing into them.

Aftab: You also have personal experience of mental illness as well as psychiatric hospitalization, and it appears that those experiences, difficult as they were, have provided a fuel for your legal and advocacy work. Can you share with us what your own experience of being under psychiatric care was like?

Flaherty: Sure, I would be happy to do so. First, it has been a while since I was in the system as a patient, but the last time I was, I remember having a 15-minute med check every 3 months. That is clearly nowhere near enough time to have any kind of in-depth conversation with a patient about all the things that may be contributing to their distress. I cannot help but wonder if we collectively have unrealistic expectations of psychiatrists. Are we expecting them to do something yet providing neither the time nor resources for that to happen?

As I relate my story, your readers must keep in mind that I am in my early 50s. Looking back on my childhood, I was depressed and anxious, but in the 1970s no one cared, especially if you performed well in school. I first went to a therapist my senior year of college when I was so depressed and anxious that I could not get out of bed and walk into the science center (which made it impossible to complete my senior thesis). That first counselor suggested to me that I could just drop the thesis, which was rather a mind-blowing concept to me at the time. Between college and law school, I started seeing a psychiatrist and was first prescribed antidepressants. My first year of law school, I experienced my first—and to date, only—full-blown episode of what was labeled as mania. I was civilly committed to McLean Hospital for up to 6 months, discharged after 60 days when my insurance ran out, took a medical leave from school, and returned the next year. The law school put conditions on my return to campus which included staying on medications. The medications kept me from being manic but locked me into a permanent depression.

With the help of my psychiatrist, I tapered off (but not incredibly slowly, to the best of my recollection) the medications after graduation. Although he did not agree with me on that course of action, he respected my choice and helped me do it. I moved overseas for a teaching position, but a confluence of factors led to my restarting medication in Ireland and returning home after a semester to a hospital admission for a medication change (it was a different world then).

That led to more than 15 years of trying every new medication that came out from the mid-1990s to early 2000s. Every single new drug. During my last hospitalization, the attending resident prepared a chart of all the medications I had been on. At the end of the day, it was 32 different prescriptions over the course of 20 years (not all at the same time, of course.) When I would do presentations for the National Alliance on Mental Illness’ In Our Voice Program, I would always explain the highs and lows of bipolar disorder; in my case, where I got locked in was somewhere below whatever the line for “normal” is. I made several suicide attempts and lived with suicidal ideation for years. I got to a point where I was not going to throw myself in front of a bus but would not have been disappointed if the bus jumped the curb in a freak accident and took me out. Does that make sense or sound familiar? After an attempt, they suggested electroconvulsive therapy (ECT). I consented, mostly because I did not care anymore.

In terms of the deprivations of rights, I not only know the theory of the law but what it is like to have it happen. I know what it is like to be grabbed by cops and put in the back of an ambulance. I know what it is like to sign in as a supposedly “voluntary” patient and immediately revoke the voluntary but not be allowed to leave. I know what it is like to be restrained and secluded. I have experienced being forcibly injected with medication.

I am fortunate in that I never have seemed to experience some of the worst cognitive adverse effects of ECT or the multiple medications I was prescribed. However, I have been labeled “treatment-resistant,” including when I was doing everything the doctors told me to do, taking all the medications that were prescribed, and it was not helping. Ultimately, about 8 years ago, I decided I did not want to be on meds anymore. I talked to my clinician, and we did the slowest taper ever of the last medication I was on. It was not an easy decision.

Aftab: How has your understanding of your own psychiatric issues changed over the course of your life? This is an area where we see a lot of diverse ways in which individuals relate to their mental illness, whether this is understood as medical disorder, as psychological reaction to life circumstances, as disability within a social model, or even as a form of identity.

Flaherty: When I first received a diagnosis of bipolar disorder, it explained a lot of things that were going on. It certainly made it easier for my parents to understand. When those first doses of lithium kicked in, they stopped the constant whirring in my brain that did not let me sit still, did not let me sleep, did not let me focus in class. When I was able to read the various brochures and information that were available when I was in the hospital, I realized I checked every box. And at that time (1990) the mainstream recommendation was medications for life, just like diabetes for insulin.

I had no reason to doubt the doctors. I grew up in the suburbs, went to prep school and college, and was in law school. I believed what authority figures told me, and I did what they recommended. I thought I had an illness, just like any other illness (I truly fell for everything hook, line, and sinker. There is proof of that in one of the first pieces I ever wrote—a guest column for the law school newspaper . . . I cringe when I read it now).

Time passed. I got connected to peer support groups. I saw individuals living their lives with the same diagnosis that I had been given, but not taking meds. That concept at first did not make sense to me, because I only knew what I had been told: The medications corrected some kind of “chemical deficiency” in my brain, so why would I give that up? Problem was, I was not happy with how I felt. So I started doing some of the things that my friends were doing: getting enough sleep, getting more exercise, eating better. I was not ready to let go of the medication yet, but I started realizing that maybe some of the things I had been told were not entirely accurate.

I started reading more. That made me a lot more skeptical of everything I had been told before, to be honest. However, I know friends who rely on medication, because it does for them what they need it to do, without significant adverse effects. I do not begrudge their choice, and in fact, I support them in exercising that choice. I figure that they weighed the pluses and minuses for themselves and made their choices accordingly. I do not think it is particularly helpful or persuasive for either side of the medication debate to operate from an absolutist position. I do think that the system response of placing diagnostic labels on all distress and thinking that writing a prescription will solve every problem, or using certain diagnostic labels to deny care, is misguided.

Once I got more involved in cross-disability advocacy work, I learned a lot more about the social model of disability and political theory. I identify as disabled, but no longer describe myself as having bipolar disorder. I will sometimes say I am living in recovery from a psychiatric label.

Aftab: Can you say a bit more about identifying as disabled, as experiencing a disability, yet not identifying as an individual with a psychiatric disorder? The reason I am asking is that for many readers the notion of disability without disorder would be rather counterintuitive. What does it mean to say, “I accept that I am disabled, but I do not describe my disability with a diagnostic label”?

Flaherty: That is a good question; I can best answer it by explaining that I am a lawyer. The Americans with Disabilities Act defines an individual with a disability as someone who has a physical or mental impairment that substantially limits 1 or more major life activity. This includes those who have a record of such an impairment, even if they do not currently have a disability. It also includes others who do not have a disability but are regarded as having a disability. I qualify under all these prongs: I certainly have a record of such an impairment, and others have regarded me as having an impairment.

I also happen to be experiencing long-haul COVID; at the time of this conversation, I have just crossed the 1-year anniversary of getting sick. I think it makes a difference when individuals who live with chronic illnesses (whether physical or mental, if they identify with the medical model) claim the identity of disabled, because there is nothing inherently negative about it. I am part of a fabulous community, so why would I not describe myself that way? There was a time in my life when I claimed the identity of being someone living with bipolar disorder. It was a big part of my life, and I found a community of others as a result. Over time, especially once I made the decision to continue my recovery without medications, the diagnostic label became a less useful descriptor.

Another way to conceptualize this is to make parallels to the conversations we have about other issues. There is not a significant biological distinction between individuals of different races; some say that race does not exist but is instead a social construct that has been used for the justification of heinous institutions such as the trans-Atlantic slave trade. But both individual and systemic racial discrimination continue to exist. Gender does not exist as gender qua gender. It too is a social construct. But individual and systemic gender discrimination exists; it was created by the patriarchal capitalists to perpetuate power and property.

Some argue that disability does not exist and is a social construct. I do not agree entirely with this perspective, because disabilities do exist and pretending that they are only a social construct means we will fail to provide the accommodations and the services and supports that some disabled individuals need to live in the world. However, I do think that this perspective does help to explain why I say that I am an individual labeled with a mental health condition. There is no blood test, genetic test, x-ray, or lab work for bipolar disorder. We all have moods and behaviors. Society, doctors, lawyers, police, and judges need mental health labels in order to keep normative-minded individuals safe and satisfied in their own perceptions of the world.

Therefore, I believe that “disability without disorder” is a bit of a false disjunction. I am human. Mood is human. Experiencing a full range of thoughts, perceptions and mood is human. I believe that disorder is a contestable judgment we impose on it. If there is a disorder, I would posit that the disorder exists in the so-called normal individual’s perception of their own normality and limiting their own conception of normality to their perceptions, relationships, experiences, and religion rather than recognizing the breadth of human experience.

Aftab: In our communication before this interview, you commented on the lack of spaces for meaningful conversations between the mainstream psychiatric community and critics such as yourself advocating for reform. I certainly share your impression, and this series is a part of an effort to enable such discussions to take place. In your opinion, why has this been so difficult?

Flaherty: I wish I knew the answer to that. What has always bothered me is that individuals from all camps (this is not about sides—I can think of at least 3 or 4 different groups here) are not truly intellectually curious about the perspectives of others. I am frustrated most by professionals who (seemingly) refuse to listen to those who have had negative experiences within the psychiatric system.

Here is something I have always wondered about, both as a patient myself and as a lawyer representing clients who are psychiatric patients: Why does it seem that no one questions the capacity of an individual who consents to treatment when they are consenting to the treatment, but the second he or she demonstrates the least bit of unwillingness to go along with a psychiatrist’s recommendations, all of a sudden the individual has anosognosia (my least favorite word), lacks insight, and lacks capacity to refuse to consent to treatment? Am I imagining that? I can understand how frustrating it must be as a professional with years of training to make recommendations to patients about what they should do and then have them not do it.

Everyone makes lawyer jokes all the time. They talk about how much they hate their lawyers and the legal system. We do not go around labeling individuals “anti-lawyer.” We understand that clients are not coming to lawyers to seek legal help when everything is going right in their life. We also recognize our system is far from perfect and rarely results in justice. It is a problematic system with all of the biases inherent in any system that relies on precedent for how it moves forward.

So, I ask psychiatrists: Are patients coming to you when their lives are going well? My guess is no. If we accept as our starting premise that the system does not give you as much time as you need to attend to your patients, do you think it is possible that there are things going on in your patients’ lives that you do not understand? And that if patients are saying that the help you are offering is not all that helpful, that is not an attack on you, but simply a statement of fact? I am not saying that is easy, because believe me, it is still hard for me when people reject the legal advice I offer—but I do not have to live their lives and I do not know everything that goes into the choices they make. All I can do is say that the likely consequences of choice A is X, choice B is Y, and I will advocate for whatever you tell me your preference is.

Aftab: You are bringing up important issues and I am quite sympathetic to your arguments. Regarding the question of why psychiatric clinicians do not seem to question the decision-making capacity when an individual is consenting to treatment, I think you will get a variety of answers from medical professionals (eg, a possible answer would be that the threshold for incapacity is different for accepting treatment vs refusing treatment because the risks of accepting and refusing are different, but such answers are less relevant for us at the moment). My suspicion is that there are 2 major reasons. The first is pragmatic: the legal system is already so strained that there is little to no appetite among stakeholders—including physicians, hospital administrators, patients, families, lawyers, judges—to go to court when an individual is already complying with recommended treatment. The second is risk, and I mean that very broadly. Forced medications are often sought in situations when the behavior is socially disruptive, or the individual is impaired to a degree that they cannot control their behavior, or the families/caregivers are unable to care for them, and forced medications are less likely to be sought in situations where such considerations do not apply.

This is also relevant because forced medications are sought within the context of involuntary commitment, and the criteria for involuntary commitment are based on considerations of risk, so in practice these considerations are highly relevant to clinical decisions about forced medications. The formal argument is presented using the language of incapacity because that is the language the system has decided on, but the considerations behind such decisions typically extend beyond incapacity.

Society has tasked psychiatrists with managing various problematic behaviors that society is not willing to tolerate outside the walls of hospitals (or prisons). It has told psychiatrists that the pharmacological tools they need to use to manage such behaviors are available to them if an argument is made along the lines of incapacity. It has also told them if they do not use these tools and some adverse outcome happens, they can be held liable.

An example that comes to my mind from clinical experience is that of a man with persecutory delusions. He has ruined his business, has been increasingly agitated, has been threatening his family, and has destroyed his house looking for imaginary persecutors hidden in the walls and the vents. His family is scared to death, for his safety as well as their own. They initiate the process for civil commitment, and he ends up in the hospital. He has no insight into the delusional nature of his thinking; he believes he is really being persecuted and that his family is refusing to see the evidence. It is easy to say in the abstract that we should respect his preferences, and we can debate at what point his lack of insight into delusions constitutes incapacity, and we can debate the construct validity of the diagnostic label “delusional disorder.” The real-world reality is that there is no way to discharge him safely to his family (or anywhere else, for that matter) unless his persecutory delusions are at the very least attenuated.

How can we do that in the inpatient setting without the use of medications? Even if you discharge him in this paranoid state, he will end up in the hospital again in a few days, or worse, he will end up in jail. This is a rather extreme example, and I concede that there are many, many examples that are far more debatable, but it does highlight the sort of considerations that go into clinical decision-making in the inpatient setting. I do not think anyone will argue that there should not be robust checks and balances. All power is at risk of being abused, and the power of commitment and forced treatment is no different. In my experience, however, I have found the judges to often be just as conservative and risk averse as physicians, if not more so.

So, I guess, my question to you is how do you take these additional considerations related to risk, safety, ability to function in the community, and the responsibility placed onto psychiatrists by the society into account? How should we approach these situations differently in your view? Should society have different expectations regarding who should assume risk and liability? Who should families turn to if their loved one is paranoid and unraveling, and is unwilling to get help?

Flaherty: These questions are difficult ones. I can appreciate the challenges faced by psychiatrists who have these responsibilities placed upon them by a society that limits the tools they have to use. Fundamentally, I think the system puts too much trust into psychiatrists and relies on them to control risk, which, as you say, they mostly do by keeping someone locked up and tranquilized with powerful drugs. I have had many conversations with concerned family members who feel like they are powerless to help someone they love. I tell them that psychiatry imposed by force may have some short-term results, but often leads to longer-term trauma and distrust. I have told them that, based on my experience as both a patient and a lawyer representing clients who are patients, seeking to superimpose the legal control of a conservatorship may complicate already fraught family relationships.

Neither the medical profession, the legal profession nor the judicial system can fix everything.Liberty, civil rights, due process, agency, and self-determination must be balanced with public safety, family safety, and professional risk. We agree that families, psychiatrists, and society have legitimate interests in their own professional security and family security. Our position is that the systems are all out of balance. First of all, society needs to stop looking to psychiatry, psychiatric medication, forced treatment, and the police to solve what they perceive as a problem individual and/or problem behavior. Society needs to invest in safe, affordable, accessible, readily available housing. Second, society needs to invest in an inviolable affirmative entitlement to a broad array of culturally competent, voluntary mental health treatment. Third, psychiatrists should not be liable for conduct of a patient. The duty to warn is a folly. No one knows what any other individual is ever going to do. I think a psychiatrist should be allowed to warn anyone thought to be at risk, but at the same time, should never be liable if they fail to warn.

The therapeutic alliance is the single most important factor to keeping patients in treatment and keeping them and others safe. Society should demand a much higher standard of care and improved conditions of physical facilities where individuals are confined for involuntary treatment. It is an outrage and inhumane to involuntarily commit someone to a 19th-century psychiatric ward with 20 strangers or more per unit locked up, most with preexisting trauma, sleeping 2 or more to a room, with institutional food, and a complete lack of autonomy over things like the room lights. I think the public is unaware of what the inside of an inpatient psychiatric ward looks like and would have a hard time contemplating the shocking lack of dignity and respect with which psychiatric patients are often treated. I think if more of the public understood the reality of these environments, they would be joining us in our efforts for system change.

Aftab: One of the biggest failures of American health care and legal systems has been, so to speak, the criminalization of mental illness, such that jails and prisons are now the largest institutions providing psychiatric care in the country. It is astounding to me that we have accepted this as the new normal. The conventional story we hear is about the closure of asylums and lack of resource for community mental health care, but we hear much less about the other side of the story, the manner in which law enforcement has criminalized homelessness and poverty, and how, instead of providing decent living conditions, the social response has been to either ship them to the jails or ship them to the hospitals using some form of civil or forensic commitment. What is your perspective on all this?

Flaherty: This is not acceptable, and this is not anything that any of us want. I do not understand how we have not been able to figure out how to effectively align on this, because I think this is an area where mental health professionals and civil rights lawyers have identified the same fundamental problem. The difference may lie in what we think is the best solution to that problem. I think we agree that criminalizing disability-related behavior and poverty-survival behavior is wrong. No one should go to jail or prison for being homeless. We need to provide decent, safe, affordable, and accessible housing to all. I believe that housing (not just shelter) is a human right. I think we should have an adequately funded, community-based system of voluntary services and supports. I do not believe forced psychiatry leads to anything we would call “recovery.” It causes trauma and makes it really difficult for anyone to want to engage with the system. I do not think we can use the excuse of the closing of the asylums anymore. That was decades ago. It is the choices we have made in the decades since that have led us to where we are today.

Policymakers need to make better choices. Here in Connecticut, when they closed 2 of the large state hospitals in the 1990s, they promised to reinvest the savings in the community-based system of care. They have never done that. That is why the Keep The Promise Coalition was established in 1999, after the Supreme Court issued the decision in the case brought by Lois Curtis and Elaine Wilson to get their freedom from a Georgia psychiatric facility (you probably recognize the case by the name Olmstead v L.C.1 We want everyone, including those with psychiatric labels, to be able to build great lives in the community. That means, we, collectively, may have to provide some individuals, including some with psychiatric disorders, additional services and supports to make that happen. I wish systems would listen more to the individuals who are most impacted by policy decisions when making those decisions. Those folks need to be at the table from the beginning, not consulted after the fact.

We have to come up with a better system than calling the police on individuals in crisis, and that is an issue I have been working on. Police should rarely, if ever, be involved in welfare checks or arrests of individuals in distress experiencing mental health conditions.

I do not think we can automatically say that having mental health professionals respond is the best solution, because that often results in a trip to the hospital, where one can be subject to forced psychiatric treatment, and to many of us who have been on that side of the locked door, it does not feel all that different from jail or prison. For those who are already trapped in the criminal legal system, we need to provide better medical care (both physical and mental health) to incarcerated individuals. We need to develop re-entry plans that allow for support for return to the community, since most who go to jail or prison do get out. We need to provide opportunities for individuals to succeed once they have served their time: They need access to housing, to income (whether through employment or benefits), to education, and to voting and participating in community life. We need to include forensic mental health in our discussions about criminal legal system reform. We need to talk about re-entry for folks who spend decades in a state psychiatric hospital under the jurisdiction of a group of political appointees (the psychiatric security review board) whose mission is solely to protect so-called “public safety.” We have joined others in proposing we change that mandate to replace it with a balancing test that requires the board to consider both the protection of society and whether or not a less restrictive placement is available along with respect for the rights of patients under the Patients’ Bill of Rights.

I have really enjoyed the opportunity to talk with you about these issues, and I hope we have demonstrated it is possible to talk with, rather than simply past, each other. You have raised thoughtful questions, and I hope I have provided thoughtful answers. Clearly, needed far more than 280 characters to do this!

Aftab: Thank you!

The opinions expressed in the interviews are those of the participants and do not necessarily reflect the opinions of Psychiatric TimesTM.

Dr Aftabis a psychiatrist in Cleveland, Ohio, and clinical assistant professor of Psychiatry at Case Western Reserve University. He is a member of the executive council of Association for the Advancement of Philosophy and Psychiatry and has been actively involved in initiatives to educate psychiatrists and trainees on the intersection of philosophy and psychiatry. He is also a member of the Psychiatric TimesTM Advisory Board. He can be reached at awaisaftab@gmail.com or on twitter @awaisaftab.

Dr Aftab and Ms Flaherty have no relevant financial disclosures or conflicts of interest.

Reference:

1. Olmstead v. L.C., 527 U.S. 581 (1999).