"Idiots, Infants, and the Insane": Mental Illness and Legal Incompetence

By Szasz, Thomas | Freeman, July/August 2005 | Go to article overview

"Idiots, Infants, and the Insane": Mental Illness and Legal Incompetence


Szasz, Thomas, Freeman


In principle, mental patents are considered competent, free to accept or refuse treatment. In practice, they are often treated as if they were incompetent, forced to submit to treatment in their own best interest. This conflation of mental illness and legal incompetence-and the concomitant transformation of the mental patient in the community into the (potential or actual) ward of his psychiatrist-are relatively recent phenomena.

Prior to World War II, only legally incompetent persons were incarcerated in state mental hospitals. In the aftermath of the war, social attitudes toward mental hospitalization began to change. Journalists compared state mental hospitals to Nazi concentration camps and called them "snake pits." Erving Goffman's book Asylums and my book The Myth of Mental Illness challenged the moral and legal legitimacy of psychiatric coercions, epitomized by involuntary confinement in a mental hospital. Presidents of the American Psychiatric Association and editors of psychiatric journals acknowledged the problem of hospitalized mental patients becoming "institutionalized."

At this critical moment, the psychiatrist's drugs ex machina-like the Roman dramatist's del ex machinaappeared and saved the profession. Politicians and the public quickly accepted the doctrinaire psychiatric claim that mental illnesses are brain diseases, and that neuroleptic drugs are effective treatments for them. Psychiatrists used the fictions of "chemical imbalance" and "neuroleptic drug treatment" as the pegs on which to hang the complexly motivated program of emptying the state mental hospitals, misleadingly called "deinstitutionalization." Thus arose the three mutually reinforcing characteristics of modern psychiatry: psychiatric drugs, deinstitutionalization, and the conflation of mental illness and legal incompetence.

The much-celebrated "deinstitutionalization" of mental patients was a hoax. Some mental hospitals inmates were "transinstitutionalized"-rehoused in parapsychiatric facilities, such as group homes and nursing homes. Others were imprisoned for offenses they were prone to commit, transforming jails into the nation's largest mental hospitals. Still others became "street persons," living off their Social Security Disability benefits.

Today, more people than ever are being committed to mental hospitals. The powers of courts and mental-health professionals over persons called "mentally ill" have been vastly expanded. Before World War II psychiatrists could forcibly "treat" only persons housed in mental hospitals. Today, armed with "outpatient commitment" laws, they can forcibly "treat" persons living in the community.

Medical practice rests on consent. Psychiatric practice rests on coercion, actual or potential. It is the duty and power to coerce the mental patient-to protect him from himself and to protect society from the patient-that has always set, and continues to set, psychiatrists apart from other medical practitioners. Nevertheless, the conflation of mental illness and legal incompetence-defined as "protection of the patient's best interest" or even as "protection of the patient's right to autonomy"-is widely regarded as an important advance in medical and psychiatric ethics.

Obscuring the Distinction Between Mental Illness and Incompetence

In the days of asylum psychiatry, the distinction between mental illness and legal incompetence was unambiguous. If a person was mad enough to merit confinement in a madhouse, then he was manifestly incompetent. Whereas if he was competent, then he was manifestly not a fit subject for incarceration in an insane asylum. To this day, a history of psychiatric commitment remains the most incontrovertible evidence that the subject "has a mental illness."

After World War II psychoanalysis and psychotherapy achieved sudden popularity. A new class of mental patients thus came into being: like medical patients, these persons sought help, paid for the services they received, and were regarded as legally competent. …

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"Idiots, Infants, and the Insane": Mental Illness and Legal Incompetence
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