The Right to Treatment as Blackmail

In Rouse v. Cameron (1966), the federal courts found that criminals who had been confined because they were mentally ill had a right to treatment. What are the origins of this right? I did a little digging, and found an article by Dr. Morton Birnbaum, "The Right to Treatment," American Bar Association Journal, 46[May, 1960]:499-505. Birnbaum argued that since the state governments involuntarily institutionalized mentally ill persons, and failed to provide anything more than custodial care, the courts should find that such patients had a right to treatment.

Birnbaum's argument for such a right to treatment was not based on any recognizable Constitutional provision, but simply that if this “right to treatment were to be recognized and enforced, it will be shown that the standard of treatment in public mental institutions probably will be raised....” This was a pragmatic argument; the courts should recognize this right to treatment because of the beneficial effects that it would have on psychiatric care. Birnbaum made no pretense that there was a theoretical basis for this claim, acknowledging that the courts were primarily interested in the questions of whether a patient's rights were sufficiently protected in commitment proceedings. Birnbaum openly stated that if the courts found such a right to treatment, it would act as a stick to force improved care, because the alternative was too worrisome—and that was release:

To release a mentally ill person who requires further institutionalization, solely because he is not being given proper care and treatment, may endanger the health and welfare of many members of the community as well as the health and welfare of the sick person; however, it should always be remembered that the entire danger to, and from, the mentally ill that may occur by releasing them while they still require future hospitalization can be removed simply by our society treating these sick people properly. This is an important reason why the right to treatment is being advocated.

I can't argue with Birnbaum's good intentions, and I don't doubt that state governments were being cheap with spending for mental hospitals. Unfortunately, when you bluff at poker, you are taking the chance that someone will call your bluff. I am beginning to think that the deinstitutionalization movement managed to give us the worst of both worlds: increased risk to the deinstitutionalized patients and to the society.

Birnbaum didn't want patients sleeping on steam grates; he wanted the legislatures to provide more than just custodial care for those patients that could be helped. But once you Constitutionalize a public policy issue--once you claim that the Constitution mandates a certain behavior--it greatly limits the ability of a legislature to cut the sort of compromises that are required when confronting real world questions of resources.

UPDATE: Oh yes, the plaintiff in Rouse v. Cameron was hospitalized because he had been arrested on a weapons charge, and found not guilty by reason of insanity. I haven't been able to find this decision yet (at least, not online) but I get the impression that he was hospitalized for several years not simply because he was carrying a gun and 600 rounds of ammunition.

UPDATE 2: I found an article published in 1969 in Hospital and Community Psychiatry by Judge Bazelon, who wrote Rouse v. Cameron in which he echoed Birnbaum--that finding a right to treatment was a threat to force state legislatures to increase funding for mental hospitals--either they had to provide treatment to violent mental patients, or they had to release them to the streets.