Psychiatric Darwinism = Survival of the Fittest + Extinction of the Unfit
Cosman, Madeleine Pelner, Issues in Law & Medicine
ABSTRACT: This article is a critical analysis of the American Health Security Act of 1993. Although AHSA was soundly defeated when first proposed, parts of it have been enacted into law in 1996, with the prospect of further piece-meal enactments in the future. It includes matters of fundamental importance to American mental health practitioners, to vulnerable citizens with psychiatric disorders, to their families, and to their few champions in medicine and law. Utilitarianism is the unstated philosophical substructure of AHSA and its legislative progeny, i.e., whatever cuts medical costs and saves money is good.
The author delineates AHSA's mental health entitlements and limitations of in-patient, out-patient, and other patient care. She enumerates a dozen major imperfections and dangers of this mental health law, especially its medical utilitarianism emphasizing outcomes and quality of life. Dr. Cosman argues that medical cost, outcome, quality of life, and managed competition threaten the essential liberties and the lives of older persons, persons who are chronically ill, fatally ill, and most particularly those who are mentally impaired. She concludes that if limited money, medicine and time are invested only in inevitable medical success, then America's medicine by its medical law will be Medical Darwinism encouraging survival of the fittest by requiring extinction of the unfit.
When was the last time you read the failed Clinton Health Plan of 1993 called The American Health Security Act (AHSA)?(1) AHSA's 1,364 pages of legislation include sections of critical importance to American mental health practitioners, to the vulnerable citizenry with psychiatric disorders, to their families, and to their few champions in medicine and in law. Everyone concerned with America's mental health care should read AHSA. It is astonishing psychiatric cultural history. Analysis of AHSA, however, is more important for providing context for medical legislation directly derived from it and already law of the land.(2) Furthermore, studying AHSA now provides warnings of other AHSA sections proposed for forthcoming medical laws. Utilitarianism is the unstated philosophical substructure of AHSA and its legislative progeny. What is good for the state is good for the patient. Whatever cuts medical costs and saves medical money is good. A patient under capitation payments is simply one head among many hungry heads. Individualism, integrity, and autonomy are out-worn ideas no longer valid for modern America where medical costs are stratospheric, and chronically ill patients live expensively long lives with poor medical "outcomes," and dismal "quality of life." Every American must have equal access to medicine. Those who get too little must get more. Those who get too much must get much less.
Many powerful people lamented AHSA's failure to become American law, especially its mental health provisions. Some politicians still bemoan it as a lost necessity.(3) Other legislators are determined to implement AHSA slowly, surreptitiously, and part by part. Whole sections of the Clinton health plan already have been incorporated essentially unchanged in legislation Congress passed into law in 1996. For instance, the Health Insurance Portability and Accountability Act (HIPAA, familiarly called Kennedy-Kassebaum) contains approximately one hundred pages directly from AHSA of criminal penalties for doctors who minimally, even unintentionally, violate the law.(4) Other AHSA restrictions governing Medicare patients were interpolated into Section 4507 of the Balanced Budget Act of 1997.(5) Moreover, Senator Hillary Rodham Clinton and her adherents know that AHSA is not dead but hibernating, ready for vigorous reawakening, hungry and rapacious, whenever the political season warms and time converges with her opportunity
Dangers to liberty, restrictions of choice, and noxious naivete of AHSA are most dramatic in section 1115 defining Mental Health and Substance Abuse Services.(6) Note that section title. That itself should sound an alarm. Throughout the legislation, mental illness and drug addiction are joined as equals: as if their origins, expressions, requirements, social symptoms, pariah status, and remedies are identical. Moreover, legislation provides mental health care to all Americans, increasing manyfold the citizenry entitled to free or quasi-free psychiatric and or mental health care. Entitlements suddenly open to those who do not need them. Banal and ordinary treatment is provided to those who already have superior treatment plans.(7) Those with will and money to pay for better are required to accept worse care. Lamentably, the poorest, sickest needing most help have severe restrictions on their chances for getting it.(8)
For the mental health community, AHSA and its progeny in the law are obnoxious perversions of an attractive chance to do good. Good intentions, however, can lead to worse evils than sinister intentions. Malignant neglect can murder as effectually as guns or poisons. As the last half century of mental health legislation and litigation in America and in Germany suggests,(9) though we may be alert to obvious wickedness and readily fight it, we easily can be lulled into unwittingly killing precious excellence, suspending moral abhorrence, and encouraging the unspeakable to perform the unthinkable.
Permeating the mental health provisions of AHSA is the Hegelian philosophy that whatever is useful for the country is right for the person. AHSA's mental health sections demonstrate the moral irresponsibility of promising ideally generous benefits whose astronomical, reason-defying costs can be contained only by the cruelest restrictions not only upon those who cannot pay but upon those competent to buy care but who by law are forbidden to obtain it. I repeat: AHSA requires that every American have no more and no less mental health care than any American. People currently thriving with their own private mental health care would be prevented from getting it, even when ready, willing, and able to buy it with their own money. People accustomed to selecting among options their good insurances provide would be forced to take whatever the universal plan elected to provide. Independence, personal autonomy, and integrity of physician and patient choices not only are not permitted but are punished. Since most law guiding and guarding medicine in our nation is no longer civil law but criminal law, the punishments for violating medical law include prison.(10)
Mental health provisions in AHSA are defiant attempts at social engineering. If you have not studied these recently, I will delineate AHSA[sections] mental health entitlements and limitations of in-patient, out-patient, and other patient care. Then I shall list a dozen major imperfections and dangers of this mental health law, especially its medical utilitarianism emphasizing outcomes and quality of life.
Readers familiar with Hegel and medical utilitarianism in prewar Germany will find the mental health sections of AHSA terrifyingly suggestive of psychiatric Darwinism wherein survival of the fittest requires extinction of the unfit.(11) Those of us studying law and old enough to remember utilitarian controlling ideas and their perversions, know well that judging who shall live and who shall die via AHSA'S criteria of cost, outcome, quality of life, and managed competition will pose great inconveniences upon the liberty of the young and healthy. But medical cost, outcome, quality of life, and managed competition threaten the essential liberties and the lives of older persons, persons who are chronically ill, fatally ill, and most particularly those who are mentally impaired. Their costs of care are astronomical, their outcomes are gloomy, and their life quality to those who observe them, not necessarily in the patients' judgment, is life not worth living.
I believe with Justice Louis Brandeis, that our enemies often are our friends innocently trying to help us.(12) But worse are those who posing as our friends pridefully insist they know our minds and our bodies better than we do, and insist upon controlling what is done and not done to our minds and our bodies. The greatest dangers to liberty lurk in the insidious encroachment of people of zeal, well-meaning but without understanding.
Mental Health Provisions in the Clinton Health Plan
Of the twelve titles in the American Health Security Act the most important for mental health care are the first(13) and third.(14) The full Act's twelve titles are:
1. Health Care Security
2. New Benefits
3. Public Health Initiatives
4. Medicare and Medicaid
5. Quality and Consumer Protection
6. Premium Caps, Premium-Based Financing, and Plan Payments
7. Revenue Provisions
8. Health and Health-Related Programs of the Federal Government
9. Aggregate Government Payments
10. Coordination of Medical Portion of Workers' Compensation and Auto Insurance
11. Transitional Insurance Reform
12. Temporary Assessment on Employers with Retiree Health Benefit Costs
The major mental health provisions are found in Title 1, Health Care Security, subtitle B, Part 2, Description of Items and Services Covered, section 1115, called Mental Health and Substance Abuse Services.(15) Other mental health material is sprinkled throughout the legislation, especially in Title 3, subtitle F, Part 1, on Financial Assistance, section 3501, on Authorization on Public Health Services Initiatives Fund.(16)
Examining Mental Health and Substance Abuse Services repays time and effort. Before I suggest a dozen imperfections and dangers of this mental health law, let's review in detail the three separate though interrelated services of which we all would be beneficiaries: (1) In-patient and residential mental health and substance abuse treatment; (2) Intensive non-resident mental health and substance abuse treatment; and (3) Out-patient mental health and substance abuse treatment. Eligibility under the law is not always what it seems. The eligible mental health patient has, or has had during the one year preceding the date of treatment, a diagnosable mental or substance abuse disorder, and is experiencing or is at significant risk of experiencing functional impairment in family, work, school, or community activities.(17) A person under treatment for a diagnosable disorder but not functionally impaired in family, work, school, or community activities, shall be treated as if so impaired.(18)
Integrating entitlements theoretically is logical and case management is AHSA'S reasonable method. But case management for mental health and substance abuse patients under Section 1115(b)(2) is only conditional assistance to an individual in gaining access to needed medical, social, educational, and other services.(19) An eligible American will not necessarily get what he is eligible for.
Eligibility for case management requires the patient to be receiving out-patient mental health and substance abuse treatment.(20) But a health plan administering AHSA benefits (for instance, your local HMO or my state health plan) has the discretion to offer case management or not.(21) An amusing, unanticipated result of case management might be that Americans without mental health problems nor the luxury of an advocate helping them to "needed medical, social, educational, and other" services shall be required to fend for themselves against gatekeepers glad to keep them away from expensive, necessary services. Therefore those suffering mental health and substance abuse problems shall get better medical care than those without mental impairment. Unlike discretionary case management, other outpatient services such as psychiatric screening, assessment, and crisis services are compulsory.(22) Every health plan must provide under section 1115(b)(3) out-patient mental health and substance abuse treatments and services to all enrolled people. Since enrollment in AHSA is obligatory for every American, then, ipso facto, mental health and substance abuse entitlements of screening, assessment, and crisis service would be open to everyone.(23) Collateral services benefit family members of people receiving mental health and substance abuse treatment, serving the wife, husband, father, mother, sibling of a person with a mental or addictive disorder.(24)
Note well the consistent, inextricable linking of Mental Health to Substance Abuse treatment. Every American is considered a public health client. Jostling for space in the same psychiatric life boat are the alcoholic snoring in a downtown doorway, my wealthy neighbor's child with lithium-managed bipolar disorder, your fiscally competent nephew with minor retardation and severe cerebral palsy, the new mother with postpartum depression, all the city's drug addicts, plus you, and I.
By January 1, 2001, seven years after the plan was to become law, mental health care was to be totally integrated with all other bodily health benefits for a person with a health security card.(25) Parity meant equal poverty of benefits. Before parity, the maximum number of residential mental health care days was thirty days in a state-licensed facility legally authorized to provide treatment in a least restrictive setting.(26) A dangerousness exception extends the annual aggregate maximum to sixty days if the individual receiving treatment poses a threat to his or her own life or to the life of another.(27) AHSA gives no clue to what happens after the patient hospitalized for two months is not yet cured, a bureaucratic finality few serious mental conditions obey. Anyone not well in sixty days is out on the street. Inpatient hospitalization for substance abuse treatment covers only medical detoxification associated with withdrawal from alcohol or drugs.(28)
Intensive non-residential treatment, the second form of entitlement, offers diagnostics or therapeutics in non-residential hospitals, day treatment centers, psychological rehabilitation programs, ambulatory detoxification programs, home-based mental health services, or behavioral aid services.(29) But intensive non-resident coverage is discretionary to a health plan, which for philosophical or fiscal reasons may or may not offer it. Intensive non-residential treatment should avert the need for the more expensive residential, in-patient services. Annual limit to intensive nonresidential treatment is an aggregate 120 days.(30) Two days of intensive non-residential treatment equal one day of in-patient treatment.(31)
Therefore, a patient could exchange the maximum annual in-patient ration of sixty days to obtain twice as many days of care via this intermediate method between in-patient and out-patient. Intensive …
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Publication information: Article title: Psychiatric Darwinism = Survival of the Fittest + Extinction of the Unfit. Contributors: Cosman, Madeleine Pelner - Author. Journal title: Issues in Law & Medicine. Volume: 17. Issue: 1 Publication date: Summer 2001. Page number: 3. © 1999 National Legal Center for the Medically Dependent & Disabled, Inc. COPYRIGHT 2001 Gale Group.