Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Griner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:37] Speaker B: Hi, everyone, and welcome to the Access to Justice podcast. My name is Leann.
[00:00:42] Speaker C: And I'm Rachel. And today we have a wonderful guest, Arushi.
Hi, everyone.
[00:00:48] Speaker D: And Leanne and Rachel, thank you so much for having me.
[00:00:53] Speaker B: Of course. Arushi, would you mind introducing yourself? Maybe give us a fun fact?
[00:00:58] Speaker C: Yeah.
[00:00:59] Speaker D: So I'm a 1L at Harvard Law School, and for my fun fact, I will talk about my favorite childhood book series, Nancy Drew. Always amazing.
[00:01:11] Speaker B: I loved Nancy Drew. I think that's a lot of the reason why I ended up going to law school.
But my all time favorite childhood book series series is the Chronicles of Narnia.
[00:01:21] Speaker C: Oh, I love that one.
I really loved Harry Potter as well.
So let's start with some of the basics of your blog post, which I loved reading. How does involuntary commitment work in Massachusetts? And what exactly is that again?
[00:01:40] Speaker D: Yeah, so before we really dive into this, I just wanted to say a really quick disclaimer, which is that this topic is incredibly complex and what I'll be able to explain during this podcast is only going to scratch the surface of the debate that surrounds this issue. But, yeah, I will answer your question now.
So involuntary commitment is the process by which a patient experiencing serious mental illness is hospitalized involuntarily.
Therefore, the term involuntary commitment.
So how this works in Massachusetts is that a psychiatrist first has to determine that the patient has a serious mental illness, A, and B, poses a likelihood of serious harm to themselves or others, or is incredibly unable to take care of themselves at the moment. And this is called the dangerousness standard.
After this determination, the psychiatrist then has to file a court petition for commitment that must be approved by a judge.
[00:02:45] Speaker B: Okay. So the judge has to evaluate whether the person meets the legal standard for hospitalization. But commitment doesn't necessarily mean treatment, right?
[00:02:54] Speaker D: Yes, absolutely.
It's kind of interesting. But being committed does not mean the patient will receive treatment.
Public safety, not public welfare, is what justifies civil commitment. And it's an exercise of the state's police power and Perrin's patriot authority.
[00:03:15] Speaker C: So what is the process to treat someone who is involuntarily committed.
[00:03:22] Speaker D: So something that's really interesting is.
So schizophrenia is an example of a serious mental illness. And a symptom in approximately 50% of individuals experiencing schizophrenia is called anosognosia. This symptom basically leads the person to be unaware of their own mental illness, and consequently, they then refuse treatment. During this period of involuntary commitment.
In order to treat the patient, the psychiatrist then has to request a treatment hearing, which is in Massachusetts called a Rogers hearing because of a supreme court, state supreme court precedent back in the 70s.
[00:04:10] Speaker C: That sounds complex and it's adversarial. Right. The psychiatrist sort of sounds like they're arguing against the patient's attorney.
[00:04:20] Speaker D: Yeah. So this Rogers hearing is adversarial. And during this, the judge has to complete a two step process.
First, the judge determines whether the patient is legally competent to make their own medical decisions.
The judge has to do this because the patient refused treatment. That's why we're here. So the judge wants to figure out whether the patient was speaking from a place of competence when they refused that treatment.
And when the judge then.
Well, if the judge determines that they are legally incompetent, then the judge effectively determines whether and how the patient will be treated. They don't base this decision based on, like, whether the medication is medically in the patient's best interest or on the likelihood of restoring the patient to competence.
Instead, what they do is apply this thing called a substituted judgment standard, which essentially asks, like, what would the patient choose if they were competent?
The standard, interestingly, tends to exclude family input. So the decision is quite distanced from those who know the patient's interests, both personal and medical best.
And so one of the.
Sorry, I'm going to ask him to cut this part out. But.
So although this process is meant to protect patient autonomy in practice, it actually rarely leads to the rejection of treatment plans.
There were a couple studies done that tried to determine what percent of Rogers petitions were approved. So basically, like, what percentage of treatment petitions were approved? And one study showed that they were approved in 99.1% of the cases, and another found an approval rate of 99.2%.
And this raises a really, really troubling question. If judges always or, like, nearly always approve this medication, why do they require an adversarial process, an adversarial legal process at that, before treatment can begin?
[00:06:25] Speaker B: Absolutely. That sounds like it's going to cause a lot of issues.
What do you think this delay means for real people? Are there any consequences of this kind of long waiting period as this process plays out.
[00:06:38] Speaker D: Yeah, so something I didn't mention was that those studies found an average of a 50 day delay from admission to treatment.
During this period the patient is held in a locked setting.
This is really concerning, especially because these people are experiencing serious mental illness and they're held in a locked room and the.
Sorry, they're held in a locked room. And like this delay prolongs their suffering and moreover, it increases the use of chemical and physical restraints, it worsens symptoms and it just obviously leads to longer hospital stays but also higher rates of re hospitalization.
And something that I find really ironic. Well, there's two things. One is that chemical restraints are used on these patients during these delays. Chemical restraints are akin to treatment? Not necessarily, but they just kind of subdue the symptoms and restrain the patient temporarily.
And another thing I find ironic is that these similar autonomy concerns apply during end of life care, but those are addressed through advance directives.
So if patients can preemptively refuse life saving interventions at the end of their life, such as resuscitation through cpr, then why can't they authorize future psychiatric treatment? Under current Massachusetts law, I think that would kind of address the autonomy concern and address the concern that psychiatrists and judges might have about whether the patients who are refusing treatment are legally competent.
[00:08:24] Speaker C: Yeah, that makes a lot of sense. So what can be done? Are there solutions to streamline the process while protecting patients rights?
[00:08:35] Speaker D: Absolutely. And around I thought of a few proposed reforms, but all of them are of course open to debate and should be debated so that we can come to a solution that both protects patient autonomy and ensures that people who need care, receive care.
One of the procedural reforms that I proposed in my blog post was monitoring the reasons that underlie the continuances that are granted during these treatment hearings.
So I guess I'll just first define what a continuance is.
A continuance is a court ordered delay that allows for maybe finding more evidence, et cetera. And there are many reasons that they can be granted. However, under Massachusetts law, or more specifically under district court guidelines, district courts are where these treatment hearings occur. But under these guidelines, a court shouldn't grant continuances unless it states a reason permissible.
However, one of the studies that I was talking about earlier actually illustrated that 25% of granted continuances in the population that they studied did not meet this requirement.
And that is a significant number.
And that is concerning because unjustified continuances increase delays that can be Harmful to patients.
One of the other procedural reforms that I discussed in my blog post was that commitment and treatment hearings could be combined and should be combined.
I understand that there's a lot of concerns for why they are separate, especially because they have different standards that apply to them. As I mentioned earlier, the dangerousness standard is what they use to determine commitment, and then the competency standard is what they use to determine treatment.
But by allowing both to occur simultaneously, maybe it could eliminate the delays in treatment that patients experience while still allowing legal oversight.
I also discuss a third procedural reform in this blog post, and it basically tries to bring in some alternative dispute resolution tactics that, for example, family law courts in New Hampshire have been using to mediate disputes.
And Philadelphia also uses a similar ADR approach in their eviction diversion program.
And I, I think that this could be helpful because I find the adversarial nature of the treatment hearing somewhat concerning.
It's effectively pitting the psychiatrist against the patient. And I think a natural and probable consequence of that is that the patient would view the psychiatrist in a negative light going forward.
[00:11:33] Speaker B: That is really interesting. It sounds like all three of those would make a huge difference.
Could you go over the potential reforms that you proposed in your blog post for the substantive side of the issue?
[00:11:44] Speaker D: Yeah. So one of the substantive reforms that I discuss in my blog post is actually inspired by the process that Italy uses for psychiatric patients that they hospitalize, hospitalize, that they involuntarily commit and then treat.
So under the current dangerousness standard for commitment, access to care is compromised for non dangerous individuals who need but are refusing treatment.
So this is interesting and really sad when you think about the fact that it forces relatives to watch their loved ones go through like progressive stages of psychiatric decompensation before they're allowed to get them any help.
So in contrast, Italy uses a need for treatment standard in addition to the dangerousness standard.
And this could introduce like, more concerns about autonomy because there would effectively be no check on the psychiatrist who decides that a patient like needs treatment. And I think the public doesn't necessarily trust the psychiatrist to make this determination because many facilities are often understaffed and underfunded and these in the moment decisions might end up being negative, might negatively impact the patient that they're treated. And the way that Italy kind of assuages this concern is that, well, first, as I mentioned, they use the need for treatment standard in addition to the dangerousness standard, but also to commit an individual for five people must confirm the decision.
In Italy, these five people include the initiator, so the person who filed the petition for commitment, or the person like a family member, a friend, whoever determined that an individual was in need of some help.
So the initiator, the doctor who creates the proposal, the doctor who confirms the proposal, a mayor and a magistrate.
And I think by coupling the need for treatment standard with this long confirmation process, individuals can receive the care they need while still being protected from unnecessary interferences with their bodily autonomy.
I do think that this five person approval process might be a little bit difficult to implement and expensive to implement in Massachusetts. So I find it interesting that states like New Jersey actually have a two step approval process where it's not just the doctor who creates the proposal, but also the doctor, an additional doctor who is independent to confirm the proposal. And this kind of also gets at one of the issues that comes up during treatment hearings, which is like independent physician evaluations. One of the delays that patients experience in the conclusion of this treatment hearing is that they often seek an individual independent medical evaluation, which again takes time, as I'm sure all of you have experienced, takes a long time to get a doctor's appointment in the books.
But I do think that having multiple people confirming this decision, not necessarily a court, but just some process to ensure checks and balances, is important.
And the second substantive reform that I discuss in the blog post is limiting the substituted judgment standard.
I do think that judges should be allowed to consider the likelihood of symptom relief and the risk of long term impairment from delayed treatment, and also whether the patient's past refusal was made while competent or during active psychosis. One of the state supreme court precedents does indicate that these factors are supposed to be considered by judges and evaluated by judges, but more often than not it's not explicitly considered.
I do think it might be implicitly considered because 99.1% of the time the treatment plans are approved.
But yeah, I guess one question I do have is like why the 99.2% of the petitions are approved? Is it because the judge is just really relying on the psychiatrist's testimony or do they actually consider these factors? But anyway, I'm rambling right now, now, so I'm going to move to the third substantive reform.
So this, this one is actually inspired by a bill that's in the state legislature right now, or that's being considered in the state legislature this session.
It basically proposes that in cases in which a patient lacks insight due to anosognosia and presents an immediate risk of deterioration, psychiatrists should have temporary authority to begin treatment before a Rogers order is finalized.
The bill specific language says that this is authorized if a patient experiences substantial, immediate and irreversible harm due to a delay.
And thinking about this has made me realize that such standards may be impossible to design or yeah, impossible to design and define without over under inclusion.
And while that's true, I do think that such attempts and this sort of consideration of the issue are first steps towards substantive justice for individuals who experience schizophrenia and are in inpatient care.
[00:17:25] Speaker C: Thank you so much for being on the podcast today and explaining all of that so thoroughly.
These reforms could change lives, it seems, but they also raise important legal and ethical questions.
How do we balance due process with the need for timely treatment?
[00:17:47] Speaker D: Yeah, so I guess this is where the legal and scientific kind of interacts. But I think what would be helpful is to go back to the 1900s and give some history on why these two hearings, the commitment hearing and treatment hearing, are completely separate.
So in the, I think 50s or 60s, there were a bunch of public exposes that came out about psychiatric facilities.
One, for example, is Danvers State Hospital in Massachusetts.
These public exposes kind of showed how understaffed and underfunded facilities were treating patients. I don't want to say willy nilly, but somewhat willy nilly. And it became very concerning, especially because the only available psychiatric treatments at the time produced extreme side effects. You might have heard of some of these.
These include lobotomies and ECT and the early antipsychotic called Thorazine.
So I think in response to these scandals that showed how hospitals, driven by a desire for convenience, were over medicating patients, states started shifting away, shifting their involuntary commitment laws away from a need for treatment standard and towards a dangerousness standard.
And I do think that this legal safeguard was incredibly essential at the time, but it's concerning now because this legal safeguard is creating delays that are becoming incredibly, increasingly difficult to justify for people who are experiencing schizophrenia.
It's also important to note that there have been advances in psychiatric medications, especially the extreme side effects that were produced by the older versions.
And in addition, the scientific understanding of serious mental illnesses such as schizophrenia has improved.
I think that these advances should prompt people to think more about how the system is kind of creating these difficult to justify delays and.
Sorry. So I do think that these advances should like trigger people to think more about how we can reform the system to balance patients due process rights with their need for timely treatment.
And I do think that at all times and right now as well, the public needs to reunite like they did in the 70s to address the fact that many hospitals are still underfunded and understaffed. And I do think that that is a very first, important first step to address before we can talk about how to streamline different processes. And to conclude, I do want to note that reacting to such crises is not ideal.
The ideal mental health care system would help individuals before their symptoms escalate to the point where they even need to be involuntarily committed.
[00:21:07] Speaker C: I totally agree, and thank you so much for sharing your insights. You know so much about this topic and you share it in a very digestible way. So thank you.
[00:21:18] Speaker B: Thank you so much. Arushi. Talk to you soon.
[00:21:21] Speaker D: Thanks so much for having me.
[00:21:23] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
Thanks for listening. If we piqued your interest, please subscribe wherever you get your podcasts. Even better, leave us a rating or share an episode with a friend or on social media.
Here's a sneak preview of what we'll bring you next week.
[00:21:47] Speaker D: The effectiveness of such reforms need to be substantiated, and I think that the RCT that I propose could also shed some light on how ALJs promote judicial efficiency in any context, since there are very little studies on that.
So I think that in RCT in this situation, because we're focusing on the effectiveness AKA the approval rate outcomes and the efficiency AKA the time of delay to the conclusion of the hearing, these are the two outcomes that I would like to measure in a proposed RCT.
