Sunday, November 8, 2015

Mad about Rights: Equal Protection in Mental Health

(In progress, very rough, needs updating - comments welcomed)

Recipients of both voluntary and involuntary mental health services have long been the subject of discrimination and social maltreatment. This historic context of discrimination has allowed egregious harms to be perpetuated against recipients of mental health services.  Abuses include involuntary confinement, seclusion, restraint, forced injections of the same medications used to torture soviet dissidents, eletroshock, pyschosurgery, lobotomies, insulin coma, immersion in freezing water, putting shock collars on school children who misbehave, water-boarding, experimentation, sterilization, guardianship, etc.  Documented harms - from the diagnosis/ treatment itself and/ or resultant discrimination - not the so-called illness - include:

  • death (on average 25 years before the general population)
  • physical injury or illness 
  • brain damage 
  • loss of capacity to think, feel, act, relate, work 
  • loss of family and community relationships
  • loss of meaningful social roles
  • loss of opportunity to participate in one's own life and the life of the community at large

The history of such abuses in the United States is well documented and includes over 50 years of strategic eugenics on political and social levels.  Just a few of the numerous resources documenting the above harms and discrimination are listed here:

  • Luhrman, T.M. (Jan 17 2015) ‘Redefining Mental Illness’ in New York Times, ; 
  • Mind Freedom International, “Alternatives to the Traditional Mental Health System”,;
  • Minkowitz, T. (June 13, 2014) ‘Why Do We Say That Mental Health Detention is Discrimination?’,; 
  • Whitaker, R.H (Spring 2005). ‘Anatomy of an Epidemic’ in Ethical Human Psychology and Psychiatry (Springer) 7 (I),; Spiegel, A.; Caplan, P.J.;
  • Whitaker, R. (2010).  Anatomy of an Epidemic.  New York: Random House;
  • Whitaker, R. (2010). Mad in America: Bad Science, Bad Medicine, and the Enduring Mistreatment of the Mentally Ill. New York: Basic Books;

If you would like to add your own experience of being harmed (or say what works), you can complete the following survey anonymously,

To read what others are saying about how they have been harmed, go to:

To see what else you can do to make social change happen, read on!  It's more achievable than you might think if we all work together.

Social Change Strategy

Due to historic and ongoing harms, corrective legislation is urgently needed to protect the rights of those receiving (or at risk of receiving) mental health services.  At least two kinds of legislation are helpful.

1. Consumer protection legislation. 

This kind of legislation protects people from false advertising and shoddy services.  This kind of legislation is urgently needed in mental health to curb the influence of drug companies.  All too often, these companies profit from selling drugs that don't work when taken as directed and frequently lead to more harm than good.

In addition, we need far better accountability from the behavioral health profession for the services it is providing. The reality is that over 90% of service recipients in the public mental system are trauma survivors. We have experienced interpersonal violence, extreme poverty and callous indifference to our human needs.  Yet, very few providers are assessing and treating this as a primary injury.  Rather, they are treating us as if we are essentially 'mentallly ill' - and the trauma we have lived through is just an interesting sideline.

Such practices are hurtful and they need to stop.  As consumers - that is, as people who are actually paying good money for services that are supposed to make our lives better rather than worse in some reasonably reliable way - we deserve competent, intelligent care targeted to the needs and issues that we actually have.  At a minimun, we deserve 'licensed professionals' who ask more of themselves and more of their professions than just continuing to mindlessly process us through the 'evidence-based' treatment protocols designed for mental disoders we do not actually have.  We also deserve a far more principled explanation for such practices than the one we are commonly offered - which is, essentially, that this is the habit they have gotten into based on what the insurance companies have decided to pay for.

To protect against such common abuses, we need consumer protection legislation designed o:
Make assessment for trauma mandatory. The facts are clear: Trauma is highly prevalent.  Yet, almost no providers are assessing for it or treating it as the primary cause of psychiatric incident.  They can and should be.

Prevent professionals from diagnosing us with disorders /mental illness when we are actually experiencing the effects of trauma or other distressing life circumstances.  No one should be labeled with a mental illness unless and until they have been competently assessed, treated and assisted to resolve traumatic / distressing life experiences.

Require truth in advertising/ informed consent before recommending or prescribing psychoactive medications. Many of us have found medications harmful rather than helpful.  The unbiased (non-Pharma) research suggests that as high as 80 percent of us do worse, rather than better, when medications are prescribed.

Prevent systemic re-traumatization.  A painful reality is that far too many of us are traumatized by the very treatment that supposed to be helping us.  This is inexcusable.  To add insult to injury, we get sent a huge fat bill at the end of the process. The only difference between that and highway robbery is that someone actually tells the robbers they can't keep abusing you.  Oh, and sometimes you get your money back.   We should long ago have been receiving trauma-informed, culturally-sensitive crisis intervention, ER, inpatient, outpatient and case management services.  That so many of us continue to be harmed in the name of treatment is sad commentary on the 'ethical standards' of the behavioral health professions.  It's also a sad commentary on the profession's willingness and ability to self-police.  Suffice it to say, it's time to take the policing and regulating to a higher level.  

To see a sample of some consumer protection legislation intended to address these issues, go to:  

2. Equal protection under law

Those who have been labelled mentally ill can and should be entitled to equal protection under US law.  This protection should be applied using the same standards and the same criteria as other citizens.  You can't preventively detain a some one you fear may... rob you, beat their child, give away their life possessions, go bungie jumping, or refuse to take prescribed medications.
The only exception is if that person happens to have a DSM diagnosis.  Then, all too often, you can do it.  What is worse, most of our other constitutional rights go out the window too.  Even more atrocious, this can be made to happen solely on the basis of a psychiatrist who reads the person's chart and does a couple of flyby visits at the pysch ward.  Where else in the world would we sit quietly and allow this to happen...?

This kind of historic and ongoing discrimination against those of us who have been labelled mentally ill has to stop. Furthermore, it does and should entitle us to legal status as a protected class under U.S. law.

Protected class status is a special legal privilege accorded to groups that can prove both historic discrimination and current need - which we can.  Once recognized as a protected class, it will be a lot harder to take away our rights.  Any legislation seeking to curtail our rights will have to be rationally related to a legitimate government purpose.  It will have to be the least restrictive alternative possible. It will be reviewed with strict scrutiny to make sure that it doesn't unfairly impact our rights when compared with other groups.

To achieve our rightful status as a protected class will be no small feat. We will need to change existing law, which will be difficult but not impossible.

To the contrary, this is exactly how the NAACP took on racism in this country.  Before the 1950s, there was over 60 years of established legal precedent saying 'separate but equal' was a.o.k.  Then, the NAACP did its homework.  Under Thurgood Marshall's leadership, the NAACP amassed a volume of documentation, testimony and research showing how separate but equal ..

  • A. Wasn't
  • B. Hurt & damaged black school children
  • C. Perpetuated social attitudes that fed discrimination

As a result of this evidence, the US Supreme Court (in Brown v. Board of Education, 1954) reversed the long-standing the precedent (of Plessy v Fergusen, 1892) saying that it was ok for white communities to engage in open, unapologetic discrimination against black Americans and use public funds to do it.  The Brown case turned the tables on institutional bigotry and set the stage for an entirely new era in American race relations.

We can do the same thing.

For the first time in history, Whitaker's incredible investigative journalism in Mad in America and Anatomy of An Epidemic positions our movement to convincingly argue that mad people have been the systematic targets of discrimination in the United States.

Furthermore, there is now research aplenty demonstrating the correlation between trauma and 'mental illness.' This research has been accepted and endorsed by the premier professional trade organization for behavioral healthcare providers in the United States. National Council Magazine (2011:2): Breaking the Silence: Trauma-Informed Behavioral Healthcare),  We can also show that the symptoms of trauma and what the DSM is calling 'mental illness'  are virtually indistinguishable.

For a work in progress demonstrating this, see:

That means we are well-positioned to argue that the discrimination against us (documented by Whitaker) is now demonstrably:

  • A. irrational and 
  • B. not related to any legitimate public purpose

In other words, even the provider establishment's own lobbying organization recognizes that trauma, interpersonal violence and basic deprivations of human rights are pervasive, and inextricably intertwined, with what we are calling ‘mental illness.’ So why are governments, professionals, insurance companies, and the general public still labeling us, prescribing us 'treatments', and denying us rights and freedom on the grounds that we are 'genetically defective', ''chemically imbalanced' and 'mentally disordered'?

This gives us a firm foundation to argue that the current laws that allow others to oppress us and deny us rights must be changed.  More specifically, those of us who have been labelled 'mentally ill" (whether by the DSM, ICD or public opinion) should be entitled, consistent with current state and federal constitutional law:

  • A. to be considered a protected class; and
  • B. to have any governmental laws or rules seeking to impair our rights reviewed with 'strict scrutiny’ --  and thrown out if they don't pass the test for fundamental fairness.

If this sounds like a long haul and a lot of work, it is.  Nevertheless, just by beginning to make these arguments - especially in pre-emptive briefs that cite the vast amounts of research, analysis and persuasive clinical authority in our favor - we have a lot to gain.  Here is why:

The courtroom rules of evidence allow us to argue (at least creatively) that courts allow - or otherwise admit into evidence:

  • The National Council's public position on the pervasiveness of trauma.  (It is in the nature of an 'admission against interest' by an entire industry, plus the authorities quoted therein are governmental, quasi-governmental, and/ or recognized experts in their fields.)
  • The work of Whitaker and others about the pervasiveness of discrimination (This is the kind of historical fact that courts commonly take judicial notice of.)
  • The work of Whitaker and others about the evidence about the harmful effects of medication  (Arguably, psychiatrists open the door to this - as rebuttal evidence - if they assert that refusing medication is in itself a sign of mental illness)
  • The announcement of Thomas Insel and NIMH throwing out the DSM and the 'chemical imbalance' theory.  (Psychiatrist open the door to this if they assert that denying one's diagnosis is itself a sign of mental illness)
  • The Publications of the British Psychological Society to the effect that there are numerous, reasonably accessible, non-medication-based approaches for addressing both 'mental illness' and behaviors that suggest a risk of harm to self or others.  

Just beginning to make this argument in court is a very good thing for us as a movement -even if we don't win and even if we do nothing more.  Here is why:

If we make this argument, then courts will have to review and decide our argument.  In order to do this, courts throughout the country (i.e., judges, law clerks, defense counsel, government prosecutors), will need to read and thoughtfully discuss:

  • The National Council's position on Trauma, 
  • National Council Magazine (2011:2): Breaking the Silence: Trauma-Informed Behavioral Healthcare),
  • Mad in America and Anatomy of an Epidemic.  

Once judges and law students start thinking seriously about these issues, then legal scholars and law students will soon follow suit.

This information alone will change how courts (and the court system) think about our cause.   To be sure, it may take us many years (as it has for other movements) - and many court cases - to ultimately win our cause under federal and state equal protection laws and get our rights acknowledged and protected at the official government level. However, just generating this new awareness on the part of the judicial system will begin to benefit us now, right away, in the countless individual cases that are going before courts and judges every day

Better yet, every time this kind of novel argument comes up in a court case, it is news.  That means that professional newspaper journalists will be explaining our major points in the clear, concise terms necessary to translate complex legalese to a general public with a middle school reading level.  This, in turn, will create interest among the public at large.  Before long, works like Whitaker's and trauma statements like that of the National Council could become common dinner table conversation.

If that occurs, then finally, finally, finally, we may see intelligent, reasoned dialogue beginning to happen - instead of the fear-driven, socially reactionary, emotional reasoning that passes for 'sincere concern' every time another school shooting lights the wick and another pre-aimed political cannonball comes barreling our direction and blasting large holes.

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