Most of the discussion about unequal treatment of the mentally ill focuses on insurance reimbursement for services. But the law has its own prejudices, and it's time we look closer at them.
Pennsylvania's Mental Health Procedures Act, enacted in the 1970's, offers immunity from civil or criminal liability "in the absence of willful misconduct or gross negligence." This section, applied to anyone from psychiatrists to police officers to hospital administrators, now includes even primary physicians who are treating mental illness incidental to a medical condition (See Allen vs. Montgomery Hospital page 20).
Already, it is difficult enough for a plaintiff with a psychiatric history—often with little financial means—to find an attorney to accept a case on contingency. Too often, lawyers conclude the person's credibility would be too insurmountable an obstacle, merely because of a history of a psychotic disorder. Yet, some of these same lawyers will carry the spear for a fired employee with a most inconsistent and disingenuous story alleging discrimination because of the lottery ticket potential of harassment suits. Evidently, an appreciation for the money tree that lies within this ton diverts their attention from some of the apples that fall close to it.
The greatest damage to justice is the self-serving liar.
And what is so wrong with the chronic mentally ill, if not actively psychotic that warrants their exclusion from the equal protection afforded the rest of Americans? Even the antisocials whose sense of truth modifies with the opportunity knocking can attract personal injury representation with endless lawsuits relating to prison care. Psychosis by history has nothing to do with sociopathy. Psychosis is more often than not temporary, and does not preclude the patient from having contemporaneous accurate recollections. No evidence has been presented that the hospitalized are any more likely to be litigious or frivolous. Medicolegal credibility is, however, mistakenly negated in the psychotic, when the greatest damage to justice is in fact the testimony of the self-serving liar under oath—irrespective of mental illness.
I am hauntingly reminded of a psychotic and quietly confused patient admitted to the hospital inpatient unit during my residency. When I was on call one night, she mumbled to the nursing staff that she had been raped by a janitor. We all assumed she was "sexually preoccupied." My heart sank when, upon her recovery, she articulated in coherent and convincing detail how she had indeed been attacked.
In Allen, the issue of gross negligence in psychiatric treatment is debated. The Pennsylvania Mental Health Procedures Act includes a more lenient standard of gross negligence required for malpractice to purposely avoid forcing more restrictive alternatives in order to reduce liability risks. Who thought of that one? Standard medical and psychiatric care is not represented by degree of restriction, but by quality of care. This law professes concern for the patients as it frames the issue through the eyes of the doctors who treat them. In a country whose legal system already protects the mentally ill less than it does convicted criminals, why does the law stack the deck?
Allen is under appeal to the U.S. Supreme Court. Other states may take the cue from the decision of Pennsylvania's highest court and draft similar legislation. Sure my malpractice premiums might be lowered, but there's something about this that just seems unfair. Let's see what the Court has to say.
