The Twilight of Liberty II: Psychiatric Outpatient Supervision and Control and Diminished Spheres of Personal Autonomy -- an Expanding Front in the War for Personal Liberty

National Association for Rights Protection and Advocacy

The Twilight of Liberty: Psychiatric Outpatient Supervision and Control and Diminished Spheres of Personal Autonomy -- An Expanding Front in the War for Personal Liberty

Dennis Feld, J.D. & Arthur Baer, J.D.

Two trends are occurring in involuntary psychiatric treatment. One portends favorably for personal autonomy, the reduction in the number of inpatient beds for involuntary civil commitments and increased community integration as the Olmstead v. L.C., 527 U.S. 581 (1999) mandate takes hold, and results in greater living opportunities in the community. The second foreshadows a decline in personal autonomy, and an expanding front in the war for personal liberty; to wit, the increased use of involuntary outpatient supervision and treatment,  which may include escalating conditions of supervision, increasing durations of supervision, and new technologies of patient monitoring. Over time, if trends continue, government intrusion, surveillance, and supervision for psychiatric reasons may extend without gap from cradle to grave. It may also include more pervasive means of outpatient supervision, monitoring and control. Indeed, legislation has increased the length of the terms of involuntary outpatient treatment. The government has sought, and jurists have imposed, more onerous conditions governing outpatient treatment and supervision. State and Federal laws have increasingly mandated reporting of mental illness or outpatient commitments. Such information may be used to disqualify the person from rights they otherwise held. And with the advent of electronic records for health related information, data bases are easily accessed and information retained, and legislation has included requirements for the expanded use of health information technologies, including the use of wireless patient technology to improve...patient adherence to recommendations made by their providers.

Will ongoing "integrated" care for those who have "behavioral issues", lead to an expansion of not only of treatment opportunities, but also involuntary treatment? Will such a system become driven by cost savings and provide treatment based on supply side requirements (that is the treatment that is available), rather than patient demand (the treatment desired), once fee for service for care is supplanted by managed care? Will early intervention and screening result in not only additional care, but also a loss of personal and family privacy -- areas previously guarded as the most private and sacrosanct -- regularly recording individual thoughts and circumstances of intra-family relations? And with such information, will an increase in involuntary intervention and/or treatment follow? 

After an initial presentation using case examples, legislative or regulatory examples, and related case developments; the workshop will invite participants to share ideas about possible strategies that may be used to curb the functional use of the mental health and reporting laws for purposes of control and supervision. It is hoped that the session will help begin to develop a long term strategy to prevent the use of mental health laws as a pretext these issues, by surveying some of the recent changes in law affecting the liberty of those who may be subject to civil outpatient supervision. It will illustrate the problems that have resulted in concrete cases, regulations, and legislation, and hopes to facilitate discussion on what may be done to ensure that these forms of involuntary treatment do not merely become civil analogues to probation and parole. What should be done to ensure, for example, that psychiatric screening does not become a regular avenue for compelled psychiatric treatment and thus psychiatric control.

Goals and Objectives

  1. Developing Effective Legal Strategies - Understanding the possibilities  for use of new legal approaches

  2. Developing Effective Advocacy  Strategies - Understanding the possibilities for use of new advocacy strategies

  3. Brainstorming to Begin to Develop An Outline of Long Term Strategies to Overcome the use of Mental Health Laws for Extended Outpatient Control and Supervision.

"Twilight of Liberty" PowerPoint(pdf)

"Smart pills" with chips, cameras and robotic parts raise legal, ethical questions, Washington Post, 5/24/14.

Link to brief presenter bios:

Arthur Baer, J.D.

Dennis Feld, J.D.