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To Treat or Not to Treat

After the tragic and shocking shootings at Virginia Tech University last spring, many wondered whether the mental health and legal systems had failed. Why wasn’t the young shooter, who had received treatment for mental health problems in the past, under the care of a doctor? Why weren’t his problems, so clear in hindsight, treated more forcefully? Why weren’t those around him made aware of his illness?

Such are the questions that USC Law professor Elyn Saks has studied for decades, and, as she told several journalists who consulted her as an expert in the wake of the shootings, there are no easy answers.

“The standard law is that the patient to be civilly committed needs to be mentally ill and dangerous to himself or herself or others, or gravely disabled,” Saks said during an interview on KPCC’s “Air Talk.” “I think an institution like a university has a right to seek treatment and even involuntary treatment for someone in their midst who needs help and is obviously dangerous. There were a lot of warning signs here.”

Still, predicting when someone’s mental illness might turn dangerous – especially when the vast majority of people who suffer from mental ailments are not dangerous – is very difficult. And protecting the civil liberties of the mentally ill, as well as all those who want to preserve the right to refuse medical treatment, is a crucial consideration, Saks says.

As one of the nation’s foremost experts on mental health law, Saks has published numerous articles and several books discussing forced treatment for mental illnesses, multiple personality disorder and criminal law, and the psychoanalytic dimensions of law. She holds joint appointments at the Institute of Psychiatry, Law and Behavioral Science at the Keck School of Medicine of USC and the department of psychiatry at the UC San Diego School of Medicine. She is also currently completing her doctoral thesis in psychoanalysis – all of which allow her to approach the complex issues surrounding mental health law from a unique variety of perspectives.

“Elyn is one of the rare people whose contributions are very solid on both the theoretical and practical levels,” says Stephen Behnke, a lawyer, psychologist and director of ethics at the American Psychological Association who has known Saks since they studied together at Yale Law School. “Elyn has explained how psychoanalytical theories of mind match up with the law, why we think, say and do things that we’re not entirely aware of, and how these ideas can inform our legal understanding of personhood and responsibility.”

In her widely acclaimed third book, Refusing Care: Forced Treatment and the Rights of the Mentally Ill (University of Chicago Press, 2002), Saks questioned traditional views of mental illness and wondered why mental illnesses are treated differently from physiological illnesses. Would we as a society condone forced treatment of cancer? An ear infection? If not, why would we force someone with a mental illness to be treated?

Saks proposes standards for determining a patient’s competency – urging that the standard be applied for any medical treatment, not just those relating to mental illness – and suggests that competent patients who do not pose a danger to themselves or others must be allowed to refuse care.

Consistent throughout her research is a keen analytical approach and a sensitivity to the perspective of people who suffer from mental illness, refined by her own experiences as a mental health patient.

“I know Elyn’s history, but her work stands on its own merits,” says Stephen Morse, a professor of mental health law at the University of Pennsylvania and a former USC law professor. “It’s fair to say that in the field of mental health law, she’s a towering figure.”

Just as her research on the effects of mechanical restraints in mental hospitals helped change laws governing their use, Saks hopes her continued research on the rights of the mentally ill will challenge preconceptions, eradicate stigma and help the legal system and society as a whole develop a deeper understanding of mental illness and the laws that govern medical care.

Toward that end, she’s currently at work on a number of research projects, including a study of laws that allow an appointed proxy to consent to research on behalf of a legally incompetent patient; an article examining the ethical dimensions of longitudinal research; an article developing a way for doctors to gauge whether patients who consent to research truly understand what they are agreeing to; and a new book on competency, to be published in 2008 by the University of Chicago Press. She’s also conducting a study of high-functioning individuals with schizophrenia, a follow-up to her own memoir about living with schizophrenia.

“We must, as a society, be able to protect ourselves from people who pose dangerous threats,” Saks says. “But we cannot assume that everyone with a mental illness is a danger. I hope that my work can at least help illuminate some of the complexities surrounding mental health law and perhaps provide guidance for better ways of thinking about mental illness and developing legal frameworks for protecting both those who suffer from mental illness and those who don’t.”

– Melinda Vaughn



To Treat or Not to Treat

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