Health Sciences Librarians and Mental Health Laws BY FREDERIC R. HARTZ, PH.D., Director of Library Services Warren State Hospital Warren, Pennsylvania ABSTRACT Two U.S. Supreme Court decisions, O'Connor v. Donaldson and Bounds v. Smith, hold important implications for health sciences librarians serving in mental health facilities. The first, O'Connor, with its many ancillary holdings, puts mental health personnel on notice that patients have certain basic rights, which courts all over the country will now be required to enforce. In Bounds the court has ruled that prison authorities must assist prison inmates -in preparing and filing legal papers. The ruling will most likely benefit all mentally disabled prisoners, and future litigation may expand this category to include: (1) persons committed under the criminal code, (2) persons under involuntary commitment not related to the criminal code, and (3) persons voluntarily committed. A selective annotated bibliography, consisting of background readings in mental health and the law, basic rights, law library materials, and mental health legal services, has been compiled to help librarians establish and develop legal collections in anticipation of court decisions that will expand the conditions of Bounds to include all mentally disabled patients.

CAN an involuntarily committed mental patient be transferred to a substantially more restrictive facility without first being given a due process hearing? May mentally retarded residents of a school register to vote? The federal district court for the Eastern District of Pennsylvania (Eubanks v. Clarke, No. 76-2491, July 5, 1977) ruled that due process entitles an involuntarily committed mental patient to a hearing when transferred to a substantially more restrictive hospital. The Superior Court of New Jersey, Appellate Division (Carroll v. Cobb, 354A. 2d 355, February 23, 1976), ruled, in effect, that mere residency in such a school does not in and of itself render such a person unqualified for voter registration and that the residency therein does not in and of itself give rise to a presumption of idiocy. A mentally retarded person is not necessarily an "idiot," and a mentally ill person is not necessarily "insane" for voter registration purposes. A unanimous U.S. Supreme Court, on June 26, 1975, opened for judicial scrutiny the locked doors of the many institutions that are euphemistically called "mental hospitals." While the holding in Bull. Med. Libr. Assoc. 66(4) October 1978

O'Connor v. Donaldson is very narrow, its significance is great indeed and its ramifications are only beginning to be felt. O'Connor is one of the very few cases in the Supreme Court's almost two-hundred-year history in which the constitutional rights of civilly committed mental patients have been addressed. The narrow legal holding of O'Connor is that "a state cannot constitutionally confine without more [treatment] a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members and friends." Justice Stewart, writing for the unanimous court, rejected the notion that mental patients may be exiled by a community that finds their presence upsetting: May the state fence in the harmlessly mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the state, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of physical liberty.

The court held further that "mental illness alone" cannot serve as a basis for "simple custodial confinement." May someone be confined because he or she would be better off in an institution? "That the state has a proper interest in providing care and assistance to the unfortunate goes without saying. But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution." While the O'Connor case was decided narrowly, the opinion of the court is rich in ancillary holdings and implications. The court noted that adequacy of treatment is a question of legal principles, that states are under a continuing obligation to review periodically the justifications for individual commitments, and that mental health personnel can be held personally liable for bad-faith violations of a patient's constitutional right to liberty. Moreover, it suggested that dangerousness should be defined narrowly, that the "least-restrictive alternative" principle protects patients against un441

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necessary institutionalization, and that even the term "mental illness" may be unconstitutionally vague. On further reflection, O'Connor v. Donaldson may be just the first step in the development of a consistent and authoritative body of legal doctrine concerning the rights of the mentally disabled. It puts governors, state legislators, heads of mental health departments, hospital administrators, and mental health personnel on notice that patients in their states' institutions have certain basic rights, which courts all over the country will now be required to enforce. More recently, the United States Supreme Court has ruled that prison authorities must assist prison inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law, Bounds. v. Smith, 75-915 (April 27, 1977). The ruling will most likely benefit all mentally disabled prisoners and may extend to mentally disabled prisoners transferred or sentenced to mental institutions. The ruling followed from previous U.S. Supreme Court decisions that have held that prisoners have a fundamental constitutional right of access to the courts. The Supreme Court determined that law libraries or other forms of legal assistance are necessary for inmates to realize this fundamental right. The ruling also reaffirms Younger v. Gillmore, 404 U.S. 5 (1971), a per curiam opinion (a short, generally unsigned opinion, summarily ruling in a lower-court decision) determining that such services are constitutionally mandated. The application of Bounds to other involuntarily confined persons, including the institutionalized mentally disabled, is not clear. Bounds, as decided, deals with prisoners in correctional facilities under the control of the North Carolina Department of Corrections. The constitutional right of prisoners of access to the courts, upon which the holding is premised, is developed from a line of cases dealing with the legality and conditions of criminals' confinement in prisons. Nonetheless, the similarity between such confinement and the confinement of mentally disabled offenders sentenced or transferred to mental institutions suggests reading Bounds to include at least this class of involuntarily confined mentally disabled persons. A definitive statement of Bounds' application to the institutionalized mentally disabled must await future litigation. At this time there may be no requirement in some states that legal reference collections or

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services be provided in any institution that is not a designated adult correctional institution. Likewise, the presence of a forensic unit in a state hospital does not mean that the hospital must provide legal reference materials or services. If, however, the past is any indication of the future, we can expect some judicial directive or precedent concerning the provision of legal reference materials or services to one or more of the following categories of persons in institutions not correctional by designation: 1) persons who are committed under the criminal code, 2) persons under involuntary commitment not related to the criminal code, and 3) persons voluntarily committed. The following titles, including the two selection tools-Recommended Collections for Prison and Other Institution Law Libraries and Guidelines for Legal Reference Service in Correctional Institutions, second edition-should be of considerable value to mental health professionals, and certainly to the mentally disabled patient provided with legal or paralegal assistance. Patrons in both categories will also derive long-term benefits from the titles selected and purchased from the two acquisitions tools used as guidelines in developing the legal collection. BACKGROUND READING

MENTAL HEALTH LAW 1. BRADLEY, VALERIE; AND CLARKE, GARY, eds. Paper Victories and Hard Realities: The Implementation of the Legal and Constitutional ON

AND THE

Rights of the Mentally Disabled; Selected Papers on the Supreme Court Decision, O'Connor v. Donaldson. Washington, D.C., The Health Policy Center, Georgetown University, 1976. This publication is a useful guide for legislators, interested consumers, academics, health planners, lawyers, and mental health personnel. It provides not only an excellent analysis of the O'Connor case itself, but also an exposition of some of the major problems for state and local elected officials that flow from this decision and other litigation in the area. Additionally, the appendixes contain the text of the opinion itself, as well as some selected statistics broadly describing state and local mental health systems, and a survey of the legal opinions of state attorneys general regarding O'Connor v. Donaldson. 2. FORST, MARTIN L. Civil Commitment and Social Control. Lexington, Mass., Lexington Books, 1978. Bull. Med. Libr. Assoc. 66(4) October 1978

HEALTH SCIENCES LIBRARIANS AND MENTAL HEALTH LAWS

3.

4.

5.

6.

Providing extensive historical background, Forst concludes that civil commitment is being used increasingly for persons previously subject to criminal sanction and is thus a major form of social control in modern American society. GIBSON, R. W. The President's Commission on Mental Health: its impact on the future. J. Contin. Educ. Psychiatr. 38:23-32, Feb. 1978. Apprises the reader of the purpose and development of the President's Commission on Mental Health. The fourteen recommendations of the commission are outlined, and the article concludes with an overview concerning the commission and the recommendations of areas that seem to merit additional attention. The complete text is in the Preliminary Report to the President from the President's Commission on Mental Hedlth, Sept. 1, 1977. IRVINE, LYNN M., JR.; AND BRELJE, TERRY B. Law, Psychiatry and the Mentally Disordered Offender. Springfield, Ill., Charles C. Thomas, 1972-1973. 2 v. A number of perspectives and approaches are presented here, including a review of the literature and a discussion of justice in the therapeutic state, the role of the law enforcement officer, determination of competency, mental health personnel from the lawyer's viewpoint, a systems approach to an institution, campus prisons, research in drugs and behavior, therapeutic community, and behavior modification. MILLER, KENT S. Managing Madness: The Case Against Civil Commitment. New York, Free Press, Macmillan, 1976. Documented with primary research and clinical experience-and two highly revealing case histories-this book makes a powerful case against civil commitment and offers important policy recommendations for the courts. Contains an excellent chapter on the prediction of dangerousness in mental patients. PESZKE, MICHAEL ALFRED. Involuntary Treatment of the Mentally Ill: The Problem of Autonomy. Springfield, Ill., Charles C. Thomas, 1975. This review puts the problem of involuntary treatment of the mentally ill into historical perspective and looks at it objectively, recognizing that mental illness cannot simply be legislated out of existence. The

Bull. Med. Libr. Assoc. 66(4) October 1978

author suggests that programs designed to meet the needs of the mentally ill be based on the right of each person to autonomy. Suggestions are proposed whereby no one in our society will be deprived of enlightened and appropriate treatment, while no one is deprived of personal freedom in a thoughtless or arbitrary fashion. 7. SHUMAN, SAMUEL I. Psychosurgery and the Medical Control of Violence: Autonomy and Deviance. Detroit, Wayne State University Press, 1977. Offers a comprehensive examination of the range of legal, medical, social, and ethical issues raised by psychosurgery. Using the internationally reported Detroit psychosurgery case, the author includes the court's opinion and his own legal brief on the fundamental issue of informed consent by prisoners and mental patients. He evaluates the constitutional questions that must be asked about the relationship between such techniques and individual liberties. 8. SLOVENKO, RALPH. Psychiatry and Law. Boston, Little, Brown, 1973. Designed to serve three principal purposes. First, it is intended to serve as a course textbook for psychiatric residents and law students and as a basic reference source for the psychiatrist or lawyer who is only occasionally confronted with problems in law and psychiatry. Second, it is designed to assist those practitioners who regularly work in this area by suggesting new approaches and by providing material to assist them in preparing and documenting their cases. Third, it is intended to provide a critical exposition of many of the practices and basic premises of the terrain of law and

psychiatry. 9. State Responsibilities to the Mentally Disabled. Lexington, Ky., Council of State Governments, 1976. Summarizes the history of society's response to mental disability, the current legal issues being raised, and current efforts to deinstitutionalize treatment approaches at the state level. Among the topics touched upon are federal legislation in the area of mental health and mental retardation; basic definitions and services used with respect to the mentally disabled; and legal issues, including right to treatment, right to least-

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FREDERIC R. HARTZ restrictive alternative, right to education, right to liberty, rights in institutions, and dangerousness. 10. STONE, ALAN A, Mental Health and Law: A System in Tratnsition. Rockville, Md., National Institute of Mental Health, Center for Studies in Crime and Delinquency, 1975. The interactions between the legal and mental health systems give rise to a number of very fundamental questions, such as: Who can be morally convicted of a crime? Who can be committed involuntarily to a mental hospital or similar facility for compulsory treatment, for how long, and with what judicially required standards of care and treatment? What kinds of treatment may be imposed without the consent of the patient§, even if this is supposed to be for their own benefit? To what extent should involuntary interventions in the lives of individuals be closely governed by due process and other constitutiolal safeguards-even when such intervenitions are premised on the individual's need for care and treatment? This monograph provides an outstanding review and discussion of the most salient issues pertaining to the aforementioned topics. 11. SymposiUm: Mental Disability and the Law. Calif. Law Rev. 62:671-1068, May 1974. Scholarship in the field of mental health law has centered largely on three areas: criminal responsibility, civil commitment, and the rights of institutionalized patients. This emphasis is reflewted in the articles in the symposium. The authors, drawn from a variety of disciplines, provide significant insights into the theory and practice of mental hlalth law. If there is one message presented by the symposium as a whole, it is that psychiatry's coercive control should be sharply curtailed. 12. SZASz, THOMAS. Psychiatric Slavery. New York, Free Press, Macmillan, 1977. Theme centers around the decision in O'Connor v. Donaldson. Dr. Szasz examines the lower-court decisions and incisively dissects the reasotis of the U.S. Supreme Court, the legal briefs filed, and the stories and articles written about the case and notes that none of them really comes to grips with the problem as he views it: that involuntary institutionalization is a form of slavery; that superintendents of mental facilities (prisons) are wardens; and 444

that patients are inmates-all part of what he calls "psychiatric renaming," that is, calling things that are harmful to patients helpful to them. Whether one agrees with Dr. Szasz or not, the book is well written, eminently readable, provocative, disturbing, and should be read in conjunction with Bradley and Clarkd4s Paper Victories and Hard Realities (see reference 1). 13. TANCREDI, LAWRENCE R.; LIEB, JULIAN; AND SLABY, ANDREW E. Legal Issues in Psychiatric Care. New York, Harper, 1975. Law students, lawyers, psychigtrists, psychologists, social workers, nurses, and other mental health specialists with a particular interest in this subject should find the information and discussions presented here to be of special value. When psychiatric medicolegal issues arise in medical offices or mental health clinics, a clinician may reach for this book and find ready guidelines without a morass of legal jargon. The illustrative case examples serve as springboards for discussion and provide examples that a clinician may identify as comparable to cases he has already encountered or may encounter in the future. The final section deals with the question of who should ultimately be responsible for an individual's behavior when it is either at odds with his own well-being or at odds with societal conceptions of good.

PERIODICALS OF A GENERAL NATURE DEALING WITH MEDICINE AND THE LAW 14. Bioethics Digest. $60.00, monthly. Information Planning Associates, Inc., P.O. Box 1523, Rockville, Md. 20850. 1 , Journal of Psychiatry and Law. $24.00, quarterly. Federal Legal Publications, Inc., 95 Morton St., New York, N.Y. 10014. 16. Law and Psychology Review. $5.00, annual. University of Alabama, Box 1435, University, Ala. 35486. (The 1977 issue reviewed two important decisions: O'Connor v. Donaldson and Lynch v. Baxley.) 17. Legal Aspects of Medical Practice/The Journal of Legal Medicine.,-$20.00, monthly. GMT Medical Information Systems, Division of MFI Inc., 777 Third Ave., New York, N.Y. 10017. 18. Legal Medical Quarterly. $30.00, quarterly. Jonah Publications Limited, 46 Park Hill Rd., Toronto, Ontario, Canada M6C 3NI. Bull. Med. Libr. Assoc. 66(4) October 1978

HEALTH SCIENCES LIBRARIANS AND MENTAL HEALTH LAWS

tection of the hospital against legal entanglements but also for safeguarding the patient against unauthorized clinical procedures. 23. KINDRED, MICHAEL, ET AL., eds. The Mentally Retarded Citizen and the Law. New York, Free Press, Macmillan, 1976, Sponsored by the President's Committee on Mental Retardation, this work represents a comprehensive summary of the personal and civil rights of mentally retarded citizens, their rights within communities, their rights with respect to institutionalization, and the criminal and correctional process. rights. GERALD P., ed. Children's Rights KOOCHER, 24. 20. ENNIS, BRUCE J; AND FRIEDMAN, PAUL, eds. the Mental Health Professions. New and Legal Rights of the Mentally Handicapped. York, Wiley, 1976. Washington, D.C., and New York, Mental The four sections of this volume focus on Health Law Project and Practicing Law Inissues of professional responsibility in stitute, 1973. 3 v. service delivery to children, institutional Attempts to bring together most significant responsibilities with regard to children's primary source materials on the subjects rights, the question of "due process" for of: civil commitment; rights of the mentally children in the mental health context, and handicapped in institutions; first, sixth, public questions on which professionals eighth, eleventh, thirteenth, and fourteenth ought to speak in behalf of child clients. A amendment rights; right to education; strong theme of the book is that rights to love, marry, bear children, vote, professionals in their daily activities often and hold property; litigation problems, violate children's rights. These violations strategies, and techniques; annotated bibmay be inadvertent or deliberate, done with liography of books, articles, briefs, and the best intentions, or executed simply for cases. the sake of expediency. 21. FRIEDMAN, PAUL. The Rights of Mentally 25. TURNBULL, H. RUTHERFORD, III, Fr AL., eds. Retarded Persons. New York, Avon Books, Consent Handbook. Washington, D.C., 1976. American Association on Mental Deficiency, One of a series of such American Civil Inc., 1977. Liberties Union manuals, the handbook Discusses consent in such specific areas as sets forth in clear, readable language the contracts, medical treatment, behavioral various statutory and case law rights of treatment, educational programming, mentally retarded citizens. It reviews such human experimentation, marriage, child issues as civil commitment and guardianrearing, abortions, and sterilizations. The ship, rights of the mentally retarded in indocument is designed to suggest a constitutions and in the community, and rights ceptual framework by which consumers, of the mentally retarded in the criminal professionals, and other interested citizens process. can approach the consent issue and to 22. HAYT, EMANUAL. Medicolegal Aspects of provide a working handbook that will enable its users to engage in informed and Hospital Records. 2d ed. Berwyn, Ill., Phythoughtful procedures. sicians' Record Company, 1977. An update of Legal Aspects of Medical 26. WILSON, JOHN P. The Rights of Adolescents in the Mental Health System. Lexington, Records, 1964, this edition includes many Mass., Lexington Books, 1978. of the recent significant legal decisions by Explores the rights of adolescents receiving the courts dealing with areas that may have mental health services, placing particular been obscure or undecided in the past. For emphasis on the respective rights of parents example, each form illustrated in the text and children when parents voluntarily comhas legal significance not only for the proBASIC RIGHTS (MENTAL HEALTH) 19. Basic Rights of the Mentally Handicapped: Right to Treatment, Right to Compensation for Institution-Maintaining Labor, Right to Education. Washington, D.C., Mental Health Law Project, 1973. This booklet focuses upon the three recently articulated rights of the mentally handicapped indicated by the title. Specific cases in each of these three areas are presented to acquaint the reader both with the theoretical underpinnings of the rights involved and with the way in which the litigation process works to vindicate such

Bull. Med. Libr. Assoc. 66(4) October 1978

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FREDERIC R. HARTZ mit their offspring to mental institutions. In arriving at a model procedure for admission, treatment, and release, Wilson explores the constitutional dimensions of the relations between parent, child, and the state.

LAW LIBRARY MATERIALS 27. Guidelines for Legal Reference Service in Correctional Institutions: A Tool for Correctional Administrators. 2d ed. College Park, Md., American Correctional Association, 1975. The major body of this manual deals with such questions as why legal service exists and where it is applicable, locating the law library and planning for services, and what materials and services should be available. Additionally, there are three very valuable appendixes. Section I, "Recommended collections for prison law libraries," contains two lists of books recommended for prison law libraries. The first list represents a minimum collection; the second is an expanded list for a reasonably adequate prison law library and should suffice for most legal research by prisoners. Section II, "Law libraries which offer service to prisoners," has been compiled to aid prisoners in obtaining legal materials, including photocopies of needed statutes, cases, and other books on loan. Section III, "Directory of law librarian consultants to correctional institutions," is a list by state and alphabetically by name of over two hundred individuals who have expressed a willingness to provide consulting services to correctional institutions. 28. Recommended Collections for Prison and Other Institution Law Libraries. Chicago, American Association of Law Libraries, Committee on Law Library Service to Prisoners, 1972- . First issued in 1972, this publication has been revised annually. In response to requests that the committee respond to the needs of institutions other than adult correctional institutions, recent revisions also list materials especially suited for jails, mental institutions, and juvenile institutions. The booklet includes general, federal, and state legal materials. The basic materials listed in each of the three areas are those volumes necessary to provide a minimal legal collection for any prison or other institution. The additional or special 446

materials cited should be added to provide a reasonably adequate law library. MENTAL HEALTH LEGAL SERVICES

29. Mental Disability Law Reporter. $35.00, bimonthly. American Bar Association, Commission on the Mentally Disabled, 1800 M St. N.W., Washington, D.C. 20036. A "one-stop," readable, well-documented journal of case law and legislative and regulatory developments in the fields of mental health and mental retardation for both practicing attorneys and mental health professionals. Cumulative (semiannual and annual) index and tables of cases and statutes. 30. Mental Health Court Digest. $20.00, monthly. Juridical Digests Institute, 1860 Broadway, New York, N.Y. 10023. A monthly summary of the reported state and federal court decisions relating to mental health; prepared especially for use by mental health agencies and personnel. Annual subject index. 31. Mental Health Law Project. Free, quarterly. Mental Health Law Project (MHLP), Suite 300, 1220 Nineteenth St. N.W., Washington, D.C. 20036. This publication has a feature called "The Docket," listing new MHLP cases and ongoing actions in which there has been recent progress and covering such categories as: rights in the community, civil commitment and guardianship, deinstitutionalization and right of treatment, and right to refuse treatment. 32. Mental Retardation and the Law. A Report on the Status of Current Court Cases. Free, quarterly. Mental Health Law Project, Suite 300, 1200 Nineteenth St. N.W., Washington, D.C. 20036. Quarterly summary of all litigation relating to the rights of the mentally retarded. To order, write Mrs. Nancy Borders, President's Committee on Mental Retardation, Seventh and D Streets S.W., Washington, D.C. 20201. 33. Patient Rights Digest. $15.00, five times per year. Center for the Study of Civil Liberties and Civil Rights, Box 4361, Montgomery, Ala. 36101. Presents cases, updates and final decisions, related to patients' rights. Discusses issues and trends in patient rights. Received April 19, 1978; accepted May 9, 1978 Bull. Med. Libr. Assoc. 66(4) October 1978

Health sciences librarians and mental health laws.

Health Sciences Librarians and Mental Health Laws BY FREDERIC R. HARTZ, PH.D., Director of Library Services Warren State Hospital Warren, Pennsylvania...
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