Cross Currents; Panel on Mental Illness with John Ives, William Dalton, and Arthur Kuflik, Part 2 of 3

Cross currents is made possible by a grant from the Vermont Council on the humanities and public issues. The legal forces trials forced treatment and the question of responsibility. Today on cross currents you'll be hearing the second of a three part series on mental illness presented by the Church Street Center for community education in Burlington and the Vermont Association for Mental Health participating in the program. Our John Olive's a forensic psychiatrist from the University of Vermont's medical school. William Dalton an attorney with the State Department of Mental Health and Arthur cup like a professor of philosophy at UVM. Here now is John Kerry comments on what forensic psychiatry is and also where I'm coming from ideologically so you'll know kind of how I warp the data in advance. The first thing to know is well first that I'm not altogether a forensic psychiatrist I do a whole variety of other things this is one of the numerous things I do so I'm in no sense a

specialist as Woodruff for example is a specialist but forensic psychiatry is primarily is different from ordinary psychiatry. And you can summarize it in the phrase that a forensic psychiatrist does evaluations for the court. It's not treatment and it's not for or with a patient. It's not to help the patient at all it's rather to help the legal system deal with some particular question that's on their mind. So that's what you have to keep in mind basically all of the people I see I see only once or maybe two or three times depending on circumstances but this is not a matter of longstanding involvement or treatment. The second kind of thing is sort of well there are couple of three basic premises on which I offer aid. First is that I've always tended to see life in terms of a variety of

cruel moral dilemmas that no matter what you do in life you're bound to be doing something wrong to somebody and the social equivalent of that is a rule that I have which is that there's no social system that doesn't screw somebody somehow. And I think you'll see how that operates in the mental health sphere in a number of ways. One of the main problems we have in this particular area is that we're always dealing with conflicts between the values of health and freedom. And there are some people who take doctrinaire positions on this. Thomas away soon you will read has specifically said that whenever there is a conflict between those two values the values of liberty or freedom are to be considered more important and should supersede the value of health. I naturally do not agree but I would not go to the other extreme and say that health should always be considered more important than liberty rather than in each case you're dealing with a cruel choice in which something is bound to be lost as well as something is to be gained.

I have a particular aversion to the kind of evangelism we often get into in this country where we pursue an abstract value not regarding the human costs of that pursuit. A corollary to that is that I don't really see that there's any villains of the piece that we're dealing with three forces. There are the forces of the community and basically the community would like to see its members quote unquote healthy and quote unquote law abiding and also would like to have a certain amount of peace and quiet in the area. This is the sort of thing that the community is concerned with. Then we have different persons different your MIL adjusted he's crazy however you want to regard this group there are certain people who are in some way or other different maladjusted or crazy depending on how you look at it. And these people also have their own interests quite often interests of maintaining their

liberty and maintaining their difference. And finally we have the mental health establishment whoever it is be it a forensic psychiatrist like myself be it community mental health centers be it any number of advocacy groups. They also represent a particular position and all in everything we deal with each one of those three groups has has a position. OK finally let me talk a little bit about models. I don't think you can deal with psychiatry without To some extent dealing with the disease model and also dealing with the social model. And in everything I talk about I will be dealing with the concept that anything a psychiatrist works with will have a biological element and also a social element. For example I would say fairly well outright that I believe schizophrenia. I believe first that there is a set of conditions which we

label now schizophrenia. It's not one disease but I think it is it's a group of diseases some of which we will learn more about in a future time but I believe that these are basically undiagnosed neurological illnesses. That does not mean however that the social factors in the in the illness quote unquote schizophrenia are crucially important. Anybody who has anything to do with the care of patients that are considered psychiatric knows that you can never ignore social variables and that they're crucially important in helping anybody who is said to have a psychiatric illness. Now take a converse point every day. Most people would say that in dealing with the things we call character and behavior disorders we're dealing primarily with social conditions. And if you go to St. Alban's jail as I do and talk to people about their past lives and what led them there you will find out a fairly consistent pattern.

Economic deprivation socio cultural deprivation however you want to regard it that. There is a fairly consistent pattern of the culture of poverty in the people who finally wind up at St. Alban's jail. So that's where I stand on models now shifting. I would like to talk first about legal responsibility. I deal with the issues of legal responsibility and issues of medical responsibility legal responsibility I'll talk about first. It is a little bit hard for some people to understand that the state of mind of a person that is accused of a criminal act is at least as important as the act itself that he's performed. That under the law as it stands you cannot be charged with many crimes in less you meant to commit that crime. There's a phrase called men's rights which I believe means evil mind in

order to have committed certain crimes I believe for example first degree murder. You have not only you'd not only have to have done the act act a cereus I think they call it but also have to have the evil intent mens rea. Now the problem comes in that a person with a psychiatric condition of sufficient severity is regarded as not having or not being capable of the evil mind that is required to be. That is necessary for the person to be charged with that particular offense. Now take the famous example of Daniel but not heard of. He somehow believed that he was persecuted by the various Tory politicians and therefore he went and I forget where to attempt to shoot Robert Peel. He unfortunately did not fortunately or unfortunately shot the wrong man. He shot people successor and his secretary and killed him and was

found to be. Acting on the basis of various delusions that the act was the direct result of this presume the mental illness that McNaughton had. Now that was a famous case but this is the kind of case that we deal with nowadays to some extent. But it's an atypical case and it's important to understand that that in the practical work that I do I do not see Daniel McNaughton that it's a public myth that persons with psychiatric illnesses commit violent crimes they don't. Or they do very very rarely. That's myth number one and while I'm on myths let me also label Myth number two and that is that the insanity defense is widely used to let off obvious criminals. In fact the insanity defense is very rarely used. And when it's tried it very often fails.

But the important thing to realize that the state of mind of a person accused of a crime is really quite important and that's what I'm called upon to deal with. The current phrase and I assume you know the McNaughton rule which is that I could read off the antique version of your version of it for you but what it mainly says that the person has to know that the act that they did was wrong. And if the person does not know that the act was wrong then they cannot be blamed for it. It's a very restrictive rule if you want to apply it literally. The thing I think most people don't realize was that it was never really applied as literally as it could have been. So I've read various texts that say the McNaughton rule is not in practice as bad as it was supposed to be. The present rule seems to go like this that a person cannot be blamed for a an act. If as a

result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the rules of law. That is I believe in Vermont law it's a law in many states now. Now what actually happens. Well I'm called upon to go to the Vermont State Hospital and there I see two classes of people. One are a class of people who have if anything what we call character disorders. And I say I do not believe that you have a mental disease or defect which makes you unable to appreciate the criminality of your conduct. You do not need to remain here so you can see in some sense I'm a psychiatric umpire on the basis of the evidence I can collect collect I call them as I see them. Now I also will occasionally see people who I believe as a result of mental disease

or defect they lack substantial capacity to appreciate the criminality of their conduct. What's important to realize is that they almost inevitably haven't been accused of very much unlawful trespass is the usual thing. In fact I can tell what I'm going to say in a report by the initial letter that I get. If the crime is a crime of any. Considerable severity something like aggravated assault I have I'm operating on about 4 to 1 odds that I will consider that person to be sane. If the crime is a very minor one something like disorderly conduct to run lawful trespass I can bet that that person is going to have a major mental illness. Now what does that mean in practice. Well let me raise a term that I invented which I call cop commitment. Commitment laws in this state have become over the years somewhat more strict. Doctors by and large do not commit patients in voluntarily. Well what then happens if the local community say of St. Johnsbury is

being disrupted by a person who walks into the lobby of the local hotel and just stands there staring at everybody and refusing to leave and say he does this for 4 or 5 days running. They take him to the kindly general practitioner who says Sorry I can't help him he doesn't know that he has a problem and it's one of those commitment things and Lord knows if I ever try and commit somebody else spend the rest of my life in court testifying about it. So what happens is that the local policeman will arrest him on charges of unlawful trespass. The judge will then see him send him to Vermont State Hospital for a 60 day evaluation. I will see him and I will say oh yes this is the seventh time you have been admitted to this hospital. You have previously been diagnosed as having chronic undifferentiated schizophrenia. I find out that they have lapsed in their treatment in various ways. And then there is a court hearing and what happens in the course of this court hearing is that the charges of unlawful trespass are dropped. There were

really a pretense to begin with and then we go through with a standard commitment proceeding which I'll talk about in a minute. But you can see what actually happens. We are not dealing with people with major mental illnesses who commit major crimes. That does not happen. What we're dealing with is what has been called the criminalization of the mentally ill. I think that's an untoward consequence of the fact that commitment proceedings have gotten somewhat more restrictive in recent years. But that is in fact what happens. Now let me talk a little bit about commitment since I just brought that up and here we're dealing not with legal responsibility but with I suppose what you'd have to call medical responsibility. Now that's come sort of a concept that most people don't really deal with too much is sort of

assumed that most people are competent to deal with their own medical needs. But there are of course certain segments of the population that everybody knows they aren't small children. Patients who've sustained brain injuries the mentally retarded or certain mentally retarded people are considered not capable of dealing for their own dealing with their own mental and medical needs and people with major psychosis are considered along the same category. Now. Let me tell you something about the ways in which people can get committed. People are committed to a state hospital if they fulfill certain requirements and here we have to say a person has to have a mental illness and they have to be in need of treatment now for commitment purposes a mental illness is descent defined as a substantial disorder of thought that deals with schizophrenia

mood that deals with psychotic depression perception that could be either schizophrenia or organic mental syndromes orientation and memory that deals with organic mental syndromes. Any one of which grossly impairs judgment behavior capacity to recognize reality or ability to meet the ordinary demands of life. Now one thing you should know about that. That is a legal definition of mental illness and not a medical one. But we are you have to understand that in all these matters the judge is the one who makes the final decision. OK well what happens in practice commitments seem to happen by three routes. One if a person comes to the emergency room or is more properly brought to the emergency room in the middle of the night they can be committed to a state hospital provided they have both a severe mental illness and some tendency to do harm

to themself or others. Now one of the things I tell residents in practice is that you have to have a really flamboyant example of one or the other but that you don't have to have both. Like for example if a person stands in the middle of Church Street and points a gun to his head he may have any number of good reasons for doing it. He is still committed. Because that is a really good danger to himself. OK now a person also if they have truly florid mental illness something that makes the judge fall out of his chair they don't have to be overtly suicidal. But you've got to have a very good case for one of the other or else you shouldn't bother even trying to do an emergency commitment. OK so that deals with the question of emergency commitments. There is a non-emergency commitment proceeding which works in theory but does not work in practice and quite frequently I have members of the family

come to me and they say I am concerned about my mother my wife whatever. She stays at home all day. She does peculiar things with the electrical appliances and the phone calls she hasn't been out of the house in five years. She'd starve to death if I didn't deliver her a sack of groceries every Thursday. We've been separated for a long time but I can't bring myself to completely abandon her. She has unusual beliefs regarding the electrical companies in the city and so forth. Here is a person who most people would consider to be mentally ill but is not a clear and present danger to themself and obviously is not a candidate for any sort of emergency commitment. It is possible to attempt a non-emergency commitment but the procedure in fact is so cumbersome that it never works and when it does work it tends to tear apart the family who has to after all apply for it to such an extent that they usually repent of having done it.

So that's the nonemergency process and I think the thing to be aware of is that that involves a certain amount of a toll on the family of the patient that I have seen a lot of families split up over a non-emergency commitment proceedings. And finally the kind of commitment that I was talking about before also applies this business of cop commitment. And this is primarily done with people who both do things that the community won't tolerate and who also don't have a family. I testify in these hearings that I believe that the person does indeed have a mental illness and that they are not capable of taking care of themselves according to that definition I just read you. And these people are then usually sent back to the state hospital. Now the law also allows and this is something that we wind up doing more and more by the time the court has its hearing. The patient is usually improved to such an extent that we can release them on a non

hospitalization order. That is that the judge will say I order you not to go to the state hospital but to attend the community mental health center and receive medication there. And that is a practical procedure if you've done your homework. You have to have a patient is ready for release and you have to have a community mental health center that will play ball with you and you have to have a judge that understands the proceedings and public defenders who will help you out. That was John lives a psychiatrist from the UVM medical school. Attorney William Dalton now discusses the issue of protecting the rights of the mentally ill. I agree with an awful lot of what John I just said. I do believe at this stage of the game however that while it may be that we are not doing all that bad in terms of this somewhat irreconcilable conflict between the treatment or medical model or approach to things

and the legal shenanigans or the motions that you go through to attempt to assure the somebodies individual rights are not necessarily abridged and that in fact that whole process made may be very very healthy dialogue. It's no question about it there are people who fall between the cracks but on the other hand it is that kind of a conflict that brings out a lot of stuff sounds very traditional for a lawyer to talk about the adversarial proceedings but if you really understand what's happening in particularly civil commitment procedures it is the legal process leaning heavily upon the professional judgments. Of of the mental health community to determine whether or not the degree of that gross disorder of thought or mood perception etc. etc.. And so they are pinned upon by attorneys and by the judges to try to really come down with something that's that may be what's really going on with this particular individual. Granted sometimes it does not work as well as it

should. But I used to represent clients in the early 70s and I can tell you that there is no question that the quality of legal representation that they get now is far greater and their rights are clearly protected. Far more than they used to be and the quality of medical or treatment analysis that has produced has increased by leaps and bounds. On the point of the old law the old law used to say that you if you did not appreciate that you were mentally ill and refused to accept treatment that that was enough of a criteria for you to be involuntarily committed. And it was a really it was a classic Catch 22. If you were crazy enough to say I don't have a thing to do with the system and I'm all right. Then then there was a very good chance that once you got into that system you could you could very easily be committed. And so I

think that the narrowing of the definitions and John spent a lot of time talking about a fairly lengthy lengthy definition of mental illness talked about a fairly lengthy definition of what it is in terms of the danger of harm you need to show before somebody will have a substantial amount of civil rights taken away from them. And that in the long run that has been of great benefit to to a number of people who have had lengthy stays at the Vermont State Hospital for example when not accomplish much. I think it I'll step over the bounds and talk about the medical thing I think it's fair to say that there are a fair number of people who at least in the past have ended up at the Vermont State Hospital who who really could not be cured or had billeted or managed in any fashion by isolation in other words if you were to come to grips if they are to come to grips with their problems it needed to be dealt with somewhere near where their

jobs were where their families were something like this. If you understand that a great majority of the individuals that are down there are poor or they're financially poor and they they come from families who cannot travel for family therapy to the Vermont State Hospital for for assistance of any kind. If they're going to come to grips with their problems it's got to be done in their local communities and that's something that the current legal standards push and try to get the courts to analyze. Again it varies greatly from court to court and from judge to judge. And that's that's troublesome and that's that's not good. But but a lot of the stuff is there. All right is currently there from a more fundamental point of view it seems there are two or three two or three things that we're we're trying to deal with. One is a sort of a criminal justice system that says that the society is not going to accept some sorts of violent behavior or a social behavior and we will punish people for it and we will restrain

them in some fashion. And I guess that I personally think that the idea of mens rea is that it is a little scary when we use that device to. And I know the public feels very badly about the fact that that device is used to. To permit someone to what they view to get off the hook. And when you're talking about people who have perpetrated violent crimes where normally they would if convicted spend a number of years in prison or whatever. That's that's next. That's very understandable. The countervailing aspect is as John has said that that's one out of I don't know how many most of them are. A subterfuge for getting people into the. Civil commitment process and getting them into an involuntary treatment situation because they refuse refuse to do it. What happens to just refine a little bit of what John said is that the court orders an observation for 60 days right. It doesn't have to be done

in 60 days but they invariably take 60 days except in a situation where John doesn't he's pretty fast about it. But there are other people who take a long time and ask for extensions. That person is incarcerated at the Vermont State Hospital. There is no more maximum security prison in the state of Vermont. And. And they're there for a period of time that very often is much longer than any sentence would have been had they been convicted of the original offense. OK so so that there is a there is some balancing that needs to be done there. And so so in if you look at that initially you say then that cop commitment is really the criminalization of the mental health system. On the other hand there may be other ways to deal with that and they would be to ensure that those observations are done in the community when they can be done in the community and that the courts are educated to ensure to make sure that they don't send people to the Vermont State Hospital when the observation can be done in

a local correctional facility or if the person can make bail and is innocent until proven guilty of that crime can be done based on an appointment. Dr. Rice's office is worth so that they're there is that there are many many defects in the criminal justice system that have a profound effect upon how the mental health system works and particularly upon how the Vermont State Hospital is forced to deal with people many times who they don't want to deal with. Most importantly if you think that treatment is essential for that individual the Copp commitment process does not get them treatment because they are not found to be mentally ill and subject to involuntary treatment. They're just in another prison waiting an observation so that no treatment occurs unless they themselves decide that they want to seek treatment. All right. Unless there's some sort of an emergency where they where they've had some violent acting out and that's not really treatment that's just using seclusion or medication as a control device to protect protect themselves or other people from them. So so there's a there is a

very fundamental problem with the cop commitment process from almost anybody's point of view. I would say. The other two procedures by which you get people there just to refine again a little bit are the emergency admission process. It's not a commitment here only emergency admitted and you'll get your hearing 10 days later two weeks later or whatever. And then there is the non-emergency route where you're free until such time as the court says in the case of the lady or man with the strange beliefs about the electronic electrical equipment in the house until such time is that criteria that we discussed as has been established. And in both of those situations that's where I'm suggesting that healthy conflict may be maybe the best thing going. I would argue it has tilted in either direction too much and that there is a great deal of very very healthy friction at the present time.

It is a painful process and I think it's particularly painful and as you say for families on the other hand it's also extremely painful those people who are subject to the whole process because if they do not feel as though they are getting adequate representation and if they do not believe they're being confronted properly by the prop by the therapist or in fact by the family. You know there's a little sort of reality testing that goes on in that whole court process where people really do are forced to look each other in the eye and say this is what we believe is in your best interest in that sort of thing. In that latter category there's something that that society in general just hasn't hasn't really come to grips with and I'm sure it's a social question that that people could treat better than I can and that is that it seems we keep getting further and further away from the idea of taking care of our own and that there are a lot of people who society is just not willing to accept

in the streets or in other situations when they are perhaps not dangerous and have chosen to to not seek any kind any kind of assistance if we want to deal with those individuals. Then I would suggest that there are other alternative ways of dealing with them. And what we're ultimately coming down to is the question of what control do you have over them. Right. What is the control factors that you do that you that you need to deal with. And there are alternatives. Within the commitment process again John alluded to a thing called an order of non hospitalization which has a fantastic amount of potential and a risk that needs to be worked through very very carefully again as he suggests so that people understand that there is somebody who is in fact controlling them in their community. But again if you come from the principle that a vast majority of the folks who are going in this position already exist in the 1900 for

their existence is nine thousand nine hundred four where there are social services systems whether it's the criminal justice system whether it's at the Vermont state hospital or whatever they are already controlled and the question is how do you control them classics. Statement of a less restrictive setting the least restrictive setting. But there is within the law now the possibility to do that and to do it very effectively there. Even the even the legal system has come to the point where there are some fairly rapid more or less turnaround times when there are notice that people are complying with those orders of non hospitalisation so that so that within a matter of a few days somebody who's starting to slide can be brought up short. And I say it's a control device because I think even John would agree that what we're really talking about is the point that somebody is being involuntarily committed is taking him and grabbing him and making him do whatever it is that that a group of people within society decided has got to be done on their behalf. Finally there are even more subtle ways of doing it.

Not the least of which is to control people particularly poor people through controlling their funds. There are within the public benefits sector a number of ways where someone else can control the resources of an individual and I have seen very very clearly how that very effectively. Maintain somebody in the community and he gives them just enough personal freedom so that they're you know not in an extremely restrictive setting and yet you know you pay for their room and board and give them just a limited amount of funds and in folks surviving that in that setting and that's a very unpleasant situation for those all of for them all of those control devices are very unpleasant. But society has already made the decision that they're going to they're going to do something about individuals like that in that setting in some setting like that. And you just have to decide what it is that you can that you can get away with in this whole balance. And finally just.

There's a there is another aspect of it again and I think John has talked about that I that I wholeheartedly agree with and that is that is that the state of the art the medical state of the art in many many situations is nowhere near as sophisticated as whether or not it's time to take out somebody's appendicitis or appendix because they have appendicitis. And in those circumstances I think we have to be particularly careful about overreacting and saying well just because we can't cure that individual that person will be there is the substantial controls will be placed on an individual. And again this is why he is doing it as much if not more than in the medical profession. Attorney William Dalton Arthur coupler now gives us his philosophical viewpoint on mental illness. Commitment and treatment procedures. So when I said psychologist I've never been as sold on the adversary system as a method for attaining the truth as have lawyers

and the like. Just a small philosophical point I think it is sometimes said that the purpose of the adversary system is not exclusively the attainment of truth but something else. Fairness protection of rights or whatever. Now you might wonder well gee. How could anything be fair or protective people's rights it doesn't have something to do with the truth and getting at the truth. And I think the point is that if if inevitably whatever method of inquiry you engage is imperfect no matter how you go about it there's always a chance you come out with the wrong conclusion or a false conclusion. There is some moral point to earning. Taking a procedure which you have reason to believe is skewed in the direction of erring on the side of you know the familiar line letting the letting the innocent persons off or letting the guilty off rather

than. Sending the innocent persons up the river and similar with civil commitment. Perhaps there's some virtue in earning on the side of letting a few people who really should be under say Catterick control and care off rather than sending I mean it's god awful thing of somebody who isn't who isn't worthy of being controlled and cared for by psychologists sending that person away. As is sometimes done quite deliberately and maliciously in certain political systems where that's a convenient label for somebody who's politically dangerous or unpopular whatever send him off with that's a horrible thought to us I think maybe more horrible to us than the thought of a person innocent of a crime. Sitting in a jail more often than that is the thought of a sane person or a person who is reasonably functional anyway being treated as though he or she isn't. So much for the adversary system. Something that could bother me but I think I was relieved a little bit by some of the

things that were said. Pressurized brought out the point of the criminalization of mental illness that certain standard procedures non-criminal commitment procedures don't seem to get too many people committed so protective Are they as it were are so skewed in favor perhaps of making sure somebody who doesn't belong there doesn't get there. That's something he calls a cop commitment has has has come into into operation. I think one would like to know what criteria are employed in that whole process either either at the beginning or later on when the commitment actually does occur such that they managed to succeed in getting people committed. Whereas in the non emergency procedures. People don't get committed. Presumably it should be ultimately the same. The same criteria should be should be at. At work there or else something is something is awry or else or else

the the one process doesn't really serve the implementation or application of the criteria as well as the other can you comment on why there should be any difference there. OK there is a very simple straightforward difference that the little old lady who is afraid of electric waves on the outside of her house and who stays inside the house has not committed any kind of a crime for which the cop can use cop commitment right now if she went outside her house and committed some sort of public disorder. Then cop commitment would come into play but there are a certain portion of people who are considered by their families and perhaps by others to be mentally ill who are simply very quiet about it. Their families are concerned for them. Non-emergency commitment is the only possibility. OK with this I guess raises the very classic question of paternalism in respect to adults. Presumably the judgement is these people aren't endangering others nor is there reason to believe if you carefully describe a situation where Doesn't sound like a person is

anti-social exactly although something of a social nuisance perhaps. On what grounds do you interfere in a person's affairs and take away some of their liberty if not to protect other persons from harm or injury. At at their hands well the best ground that people come up with is where you interfere for their own good for the good of the very person who is being taken away. And this of course raises a very subtle and difficult question how not to insinuate or impose our conception of what's a good or meaningful life when it does seem to some people at least that there are there's quite a variety of meaningful lives possible and somebody might be idiosyncratic. To put it in the you know I'm a medio Socratic you are weird right. And he's really out of off this planet altogether. A Somebody might be idiosyncratic and others might in their intolerance as it were think that this is this is

this is sick this is crazy this person needs for his own good that he be taken away and so forth. And what you get is some you know this is that this would be the extreme case rights. It's it's easy it's facile of me to bring it out. Turns out this person is really one of the great geniuses artistic or scientific or whatever and he's been misunderstood or whatever. Well I do believe I'm optimistic I do believe that the mental health professionals could define for us more carefully what they have in mind they could enumerate at least by enumeration of concrete cases we would get the feeling that there is a category of. Not being all there which is not to be confused with being ahead of one's time. But from again from the moral and moral hyphen legal point of view one wants to see that spelled out. Now another tricky point I think that comes up is the issue of a kind of under the heading of criminalization of mental illness something like preventive detention somebody hasn't committed a crime but we want to we want to protect ourselves from that person anyway not protect the person from himself but protect the

rest of us from that person. There's there are a lot of questions here of course. What would the criteria be I mean the best evidence we have that somebody is going to commit a crime is that he has or that he's attempted a crime he's already a criminal. And so we're protecting ourselves from his or her future criminal conduct. But in the absence of that what's good evidence what's what what are reasonable criteria. We don't again want this to become a pretext for a for the abuse of power we don't want the thing to be so vague that it's such a matter of discretion that any of us could simply be carted off on the ground that he or she poses a threat to society. We want to we want that spelled out now in the definition you read to us. I was again very comforted to hear it. It sounded to me on that that branch of the definition that dealt with danger to others sounded to me that it wasn't pure preventive detention that the three things you mention I'll go over them all sort of added up to me

to actual criminality. What you said was and maybe we can go back over that. That the person has inflicted or attempted to inflict or placed others in reasonable fear of he's inflicting some harm or injury upon them now inflicting harm or injury as a car. It is already you know the person is already a criminal in some sense even if he isn't fully responsible for what for his criminal act has attempted it while attempting a crime is a crime or placed others in reasonable fear of. Now that's close to being the technical definition of assault to assault somebody is to put them in reasonable fear. But I believe it's of reasonable fear of immediate or imminent harm is that it in the technical. Not here. Doesn't say here but in the technical definition of assault I believe this to be some kind of criminal's criminal assault I mean is I suspect that's true or not. Sure. Actually I think the idea is it's not just the general fear that somebody might harm you.

Now here we don't have the notion of imminence or of present ness of a clear and present danger. I wonder if you could comment on the kinds of people that you said mostly to people get committed are not for made they have major mental disorders are not associated with major criminal conduct. Is there a very small category small class of such individuals though who have not committed a violent crime but you would bet your bottom dollar that if they were left out there for five or ten years they would use it. Is there such a category of mental dysfunctioning. We do we try to skip over that because as many people point out psychiatrists aren't any better than laymen in predicting dangerous behavior. Everyone is capable of violence. That is not just people with psychiatric illnesses they could commit murder just as well as any schizo furnace I've ever known. So we try to avoid that in point of fact item number two here by threats or actions has

placed others in reasonable fear is very rarely invoked because how could you how could you say what reasonable fear is. It's perfectly legal for anybody to threaten anybody else. I could say by God I'm going to kill you and you can't commit me for it and you can't charge me for it. Not unless we're in the Army in which case the laws are different. Threats well by actions I suppose you could work on that because I could take a gun and pointed at us. Yes but then I think they're you getting into something that is defined as assault and that is going to get a loaded gun at somebody is because of the imminence aspect of the present a clear and present notice of it. It is the problem with a mental disorder I imagine is that is that if there is no telling whether the lever happened or not now here's the catch which perhaps you could address for our benefit. It's sort of there's an unfortunate factor inherent in the way this is done. If you are

a mental health professional I'm afraid you consciously or subconsciously would prefer to err on the side of of detaining people. Because if you don't detain somebody and they later commit a violent crime there's a big uproar. Why didn't these mental health professionals see this coming. Why is this person walking the streets why isn't this person still under care. If however you detain somebody say indefinitely for the rest of their lives put them under care well they're not that we don't know. You don't look like you've made any mistakes. It's hard to tell. Now I'm not saying this is a conscious motivation but subconsciously it's more convenient now. Can you address that danger that potential danger to our to our civil liberties that it's that it you get a better track record. In the eyes of the general public when when you win when in doubt you just put some you trot you testify in favor so you put them away but you you come out in favor of putting him away because you don't want to have either on your conscience or at least on the public's

record of grievances against you that you testified there was no way I mean the public will understand it's later on that it was not reasonable to expect a crime from this person. And how does that how do you feel that that's actually works contrary to my experience yet with people I consider to be mentally ill. That by and large the people who I have known and considered to have an illness that I call schizophrenia are by and large quiet gentle people who cause little harm to anyone. Right. That if I am from the standpoint of danger I am more anxious in the company of the sane than I am in the company of the insane and I mean that quite literally. The general public does not quite understand that. And very often I get calls of the sort of I'm worried about my relative my relative his muttering and glowering and making vague and unspecific threats. And my comment to that is well many people do that and there's not much that can be said about it. But if you're really concerned and here's where the cop commitment comes

in you could at least wait to lay commit unlawful trespass and they can be arrested for that. That's the way things like that are often dealt with and I think it's a bit of a shame I'm myself not so much. I'm here we. Well last week we had Marshall true saying we all want to be a little more tolerant. Well I think he's got a point but then. How tolerant. I myself can tolerate a certain amount of muttering and glowering. On the other hand don't like loud noises that disturb the quiet of my home I don't like people walking onto my property and peering in my windows. But we've all got tastes as far as that tolerance I think is often a matter of taste. This is a question that I present is kind of a cruel dilemma. How much deviant behavior are we as members of a community prepared to put up with before we say to our friendly local policeman I want to tourist that man

for unlawful trespass. When I think you're crossing the line from paternalism over to something else protecting the rest of us not from anything not from familiar concrete crimes as well but from something subtle or some of that is crime I mean peeping tom. Trespassing a person making a nuisance of himself that goes beyond just being not particularly charming and most of us would look the other way or walk the other way. I think you can get over into the realm of a persistent nuisance Witchboard which is a kind of minor criminality. I guess we're afraid of is again just pure deviants. Which is which which offends us offends our sensibilities and want to get rid of the person in defense of the general public's misconception about about mental illness and crime. I guess I'd have to ask you to comment on people like the Boston Strangler and Charles Manson and and Speck I forget his first name.

I think that's what the lay public in its naivete and ignorance thinks it thinks of these people who. Are incarcerated there presumably under under observation and some kind of care but I think the best of my knowledge the mental health professional world would have to concede that it doesn't fully have the power to to to correct the conditions that these people are what is the nature of those cases. From the standpoint only regressive on this point I even go so far as to agree with Thomas Yes I think there are some people who aren't crazy but evil just evil. Yeah that's quite interesting and I think Charles Manson was not crazy but evil from the best I know of him. Or for that matter. So what if they are crazy that they have something that offended society to the extent that they are. Think back to the shots and that's for sure. In fact the thought that somebody like Manson would be let off on parole I think is horrifying to everybody.

We'd rather see his indefinite detention on grounds that he's not encompass mantis in some suitable sense and I think we've dealt with the problem by having him charged with murder and convicted of it as far as I know no insanity defense worked in the case of Manson. Judge same tried found guilty and I presume he will remain where he is which is probably all for the best because I wouldn't trust him the matter how long he lives right the danger but whatever the basis with their just be his evilness would he wouldn't be a safe bet for parole. Yeah of course that again is just applying a different word than I do. I think I know what is meant by mental illness I have a good idea but I have a much less clear understanding of what is quote unquote evil in this. I think that such a thing exists but I'd be hard put to define it. I can't help but I have to comment on this despite my specialities moral philosophy. There are people who do wrong and who know that they're doing wrong and perhaps we wouldn't want to characterize them as evil. There is a challenge to us to say what we might mean by someone's being evil.

It seems to me that among the things we might have in mind I don't think it's hopeless to try to define this. If someone. Knows that something is wrong. Hat is capable of resisting doing it but is fully intend upon doing it anyway and continues to do such things. Delights in doing the wrong thing because it is wrong. Then we have a kind of perverseness as it were which we call evil. What worries me though in trying to exclude this from at the same time from the realm of mental dysfunction. What do we do with such a person should we try to give this person a moral education should as they should we should we call upon this person to think more carefully about how it feels to be the people he or she is victimizing in this way. What might turn out that the person thinks about it a lot and delights in it delights in the very in the thought of the suffering of these other people. Now I think we're sort of we're out of the realm of ethics. We've we've got somebody who

doesn't seem to learn the lesson that we think a person. Who's in working order. Moral cognitively speaking. Whose powers of moral knowing are in working order. Isn't getting that isn't getting the lesson isn't getting the. Conclusion. It seems to me that ordinary processes of moral reasoning in arguing and educating and sensitising aren't working and that's when the the the layman says well this person is sick. This is a person's dysfunction I mean if you took a child and you gave him the best kind of mathematical education or scientific education Mr Wizard all the greatest educational talents came out there and the cleverest devices and illustrations and so forth and the kid just wasn't getting it we'd say the kid had a some kind of cognitive deficiency or dysfunction. I think we were trying to say something analogous to that in regard to moral moral development and moral education. There are moral developmental psychologists Kohlberg who seem

to think that there are five standard faculties here that have to get developed and training seems to me it's conceivable that some people have are deficient or defective in those faculties to the empathetic faculty. But in particular. But again now I'm crossing the border back over to your field could you comment on that at all. Yeah it's a vexing area. Let's first take it away from Charles Manson because he's pretty rare and deal with every man there are. But I go to St. Albans jail and I see people who do not control their behavior. I see kids who commit endless breakings and entering and have gone through week school and gone through this or that probation program and finally wind up with a healthy long sentence at St. Alban's jail. Well they can say I cannot control my onus of my impulses. OK. And I say how do you know. And then well because I didn't control my impulses. Well how do you know you couldn't. Well because I didn't maybe didn't try hard enough. I tried honest I tried.

Well if. And we go around and around the bar and I don't know too much about them except I do not consider this population to be mentally ill in the same sense that I consider a schizophrenia to be mentally ill or a psychotic depressive or a manic to be mentally ill these things are diagnoses that I can make in this group is excluded from it but it's quite common. There are large numbers of people like this who say that they cannot control their impulses and in which you can observe that they do not control their impulses. Now what what would you say about them. Well one thing I can say about them is that the correction system doesn't work in any predictable sense to help them. And that psychiatry has nothing to offer to them either that or it is well-known that character disorders exist and that the psychotherapy that is applied to them is comparatively ineffective. I'm not a total psycho therapeutic nihilist but most of us are taught early in our training to be relatively pessimistic about this particular population that if a person

doesn't control their impulses there ain't much you're going to do to change that process. Now what does happen. Well the natural history of such people is that they commit a lot of breaking and entering sin they finally wind up with ever longer sentences to say Goldman's jail and eventually they get older and get tired and do what we call burning out which again is a process that we absolutely do not understand. But they get old and presumably tired stop doing it. Well let me ask you when you when you interview such people I could imagine different scenarios one scenario shows that they have some moral sensibilities and in fact their misdeeds reflect their moral sensibilities or as they feel whether rightly or wrongly Maybe it's it's it's like psychotic depression psychotic persecution or something or since a person they feel they're getting back. There are things they feel deeply wrong somehow or unfairly treated as compared to other children other teenagers whatever and they're getting back to getting back to good that's one possible scenario where there is some kind of moral ground on which to operate with them. Another

possibility is that they don't see it they just don't seem to. They don't acknowledge for example that they're treating others in ways they wouldn't want to be treated or they're acting on principles they wouldn't want to see prevail and wouldn't want to have been brought into a world which in which he's in prison. Another scenario is where they agree that what they're doing is wrong but just don't but keep doing it I just don't understand it can't give any explanation at all. The devil made me do it. Whatever. Yeah yeah. Do you want all of these any of these or is this just all I see in the first part. There are a number of people who act as if they had nothing of what you call moral sensibility you ask them about it though and they'll claim they have moral sensibility and won't ever do it again. And then there are those who sort of say I don't know quite come over me or the devil made me do it or demon rum or whatever it was and then say will you do it again of course I will not do it again I have learned my lesson.

I think the point I'm trying to make is that I and everybody else in my opinion are absolutely incompetent to make any kind of a judgment about anybody's moral sensibilities. Why. Well because people simply lie to us. I can make judgments about a person's presence or absence of symptoms of mental illness and that's all I can do. I can't evaluate anybody's morals nor can anybody else. That was Arthur coupling a philosophy professor at the University of Vermont Dr. couplet was part of a program which also included attorney for the State Department of Mental Health. William Dalton and John Olive's forensic psychiatrist at the UVM medical school. You've been listening to the legal forces trials force treatment and the question of responsibility a program presented by the Church Street Center for Community Education in Burlington and the Vermont Association for Mental Health. Cross currents produced by Joshua Landis and Marion a bike is available on cassette from

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