Mark J. Hauser, M.D.
Consulting Psychiatrist and Past Chair,
DMH Human Rights Advisory Committee

Archie Brodsky
Chair, Mass. Mental Health Center Human Rights Committee

As published in The Advisor
Notes From The Mental Health Legal Advisors Committee
No.43, Fall 1995

  Until now, the movement for recognition of the civil rights of mental health consumers has centered upon involuntary commitment and coerced treatment. Increasingly, however, the focus is shifting to other issues, such as to what extent clinicians and institutions may restrict the right of hospitalized persons to send and receive mail, visit with relatives and friends, and use the telephone. These issues have been brought to the fore by legislation before the Massachusetts Senate Ways and Means Committee, the "Bill of Rights for Persons with Mental Illness and Mental Retardation" (5.731, H.2013), which would extend rights already accorded people residing in state institutions to those in private facilities.1
 Questions about human rights restrictions figure prominently in the day-to-day work of clinicians and human rights committees, and significantly help to determine the tone and spirit of staff-consumer relationships as well as the quality of care. Tensions inevitably arise between medical paternalism and consumer advocacy. This article tries to provide clinicians and advocates with practical ways to resolve such tensions ethically, legally, in a clinically sound manner, and with respect for the decision-making autonomy and health of persons diagnosed as mentally ill. Perspective-sharing and consensus-building can help clinicians and advocates who find themselves in an adversarial posture develop strategies for working cooperatively out of a shared dedication to the consumer.

Governing Law and Regulations

  Massachusetts law defines the rights of mental-health consumers in state facilities with respect to mail, visits, and telephone calls as follows:

  Any mentally ill person in the care of the department....... shall be provided with stationery and post-age in reasonable amounts and shall have the right to have his letters forwarded unopened to the governor, to the commissioner, to his personal physician, his attorney, his clergyman, to any court, to any public elected official and to any member of his immediate family. The superintendent may open and restrict the forwarding of any other letters written by said person when in said person's best interest.
  A mentally ill person has the right to be visited at all reasonable times by his personal physician, his attorney, and his clergyman, and the right to be visited by other persons unless the superintendent determines that such a visit... would not be in the best interest of the mentally ill person and incorporates a statement of the reasons for any denial of visiting rights in the treatment record of said person.   In addition....a mentally ill person in the care of the department shall have....reasonable access to telephones to make and receive confidential calls.....provided, however, that....[this right] may be denied for good cause by the superintendent or his designee and a statement of the reasons for any such denial entered in the treatment record of such a person.2
  These provisions, restated in the regulations of the Department of Mental Health (DMH),3 leave considerable room for clinicians or administrators to interpret what is "reasonable," "for good cause," or in someone's "best interest." For example, a clinician may determine that it is in person's best interest to prevent her from embarrassing herself or breaking laws. At the same time, this terminology establishes a general standard, however vague, by which arbitrary restrictions on civil rights can be challenged. The DMH Human Rights Handbook makes clear that restrictions of rights must be based on specific, documented clinical judgments made in the here and now, not blanket presumptions based on diagnostic categories or historical generalizations:
The determination to restrict any of these rights is a clinical decision, made by the head of the facility (or designee) in order to avoid serious harm to the consumer or for other good reason in the consumer's best interest. Unless this explicit determination is made for the particular consumer, there may be no restriction. Restrictions should be as limited as possible and still avoid harm to the consumer, and should not occur if there is an alternative, less restrictive way of avoiding the harm.4
Such language legitimizes the sometimes uncomfortable questions raised by consumer advocates.

Clinicians' and Advocates' Perspectives

  Paternalism has both beneficent and controlling underpinnings. The decision-making power which the law still concedes to "the superintendent or his designee" in part derives from the physician's traditional ethical responsibilities toward patients and from the duties which clinicians and institutions have toward society; these are the two major components of "paternalism."5
  Paternalism has its roots in the "duty-driven medical ethic,"6 which confers on the physician the obligation to exercise beneficence, defined as "tile principle that prompts physicians to cite their moral commitments and personal support for patients beyond just respecting their [the patients'] rights."7 Beneficence encompasses the desire to promote health and healing, to protect patients from the consequences of their illness, to enhance autonomy, and to promote personal development.
  In the words of a recent commentary, "The model for medical paternalism is the caring parent who nurtures and protects a child without waiting for permission."8 Only a few decades ago, most people in this country expected physicians to use their specialized knowledge to make treatment decisions for patients. Despite recent revelations of the fallibility of the medical profession, our attitudes and laws are still influenced by this belief.
  The nontherapeutic side of paternalism arises in part from clinicians' personal impulses to exert control. A controlling function is built into clinical work by the responsibility of clinicians and agencies to protect consumers, other individuals, and society from harm done by those in their care. In practice, paternalism extends well beyond this narrowly defined duty as expressed in the statute governing involuntary commitment, which requires a clear threat of serious harm to self or others.9 With clinical decision making increasingly influenced by scarce resources and fear of legal and financial liability, control often is expedient.10 It is easier to say "no" than to spend the time working out alternatives that respect consumers' rights. Inadequate staffing and training, high staff turnover, and the time pressures introduced or exacerbated by managed care can lead to safe, decisive, and arbitrary edicts rather than complex, sensitive, and individualized resolutions.11
  In fact, simply gathering together a group of people who require some degree of care into a caretaking facility brings about a form of custodial control:

Custodialism is not only a response to insufficient resources but also a paternalistic institutional culture based on maintaining a safe and stable status quo. Custodialism socializes patients to the institutional setting, which values "good, quiet" patients who fit into the institution's rhythms..... .. Custodial cultures do not seek improvement in patients' functioning leading to greater autonomy and eventual discharge but rather encourage behaviors and activities that keep the institution a manageable community in which patients can function.12
  Clearly, there is great potential for abuse of the custodial role, just as beneficence can be abused when well-meaning clinicians intrude on the prerogatives of individuals competent to make autonomous decisions. The mental health consumer advocacy movement has arisen to counter such abuses. It should be noted, however, that many psychiatrists support the evolution away from paternalism.13 These psychiatrists recognize that the goals of clinical care must emphasize enhancement of autonomy,14 a major theme of consumer advocacy.
  Clinicians should recognize that the competence to make decisions varies with time and the subject matter of the decision. As one commentary states, "This awareness should help clinicians resist paternalistic responses."15 Thus, rather than responding to the risks inherent in decision-making with paternalism, clinicians should pursue treatment precisely in order to encourage consumer independence: "An alternative to the paternalistic response is to treat factors underlying the variable nature of impaired autonomy to improve the patient's capacity to participate in the informed-consent process."16
  Unfortunately, the very incorporation of respect for autonomy into enlightened clinical practice has led some clinicians to resent consumer advocacy as superfluous and mean-spirited. These clinicians "consider patients' mental illnesses as the greatest constraints on their autonomy and view human rights systems as intruding into the clinician-patient relationship."17 Actually, the role of the consumer advocate is essential, and better outcomes are achieved when there is a healthy tension between psychiatrists and advocates. Without consumer advocates, history has shown that too many clinicians would routinely use beneficent purposes to rationalize intrusions on people's rights.

Typical Scenarios

  Some restrictions of rights immediately would be recognized as abusive by lay people and professionals alike. For example, consumers report that some hospitals routinely withhold all contact with the outside world for the first few days after admission, and then restore contact as part of a graduated behavioral program. In other words, a legal right is being used as a discretionary reward and the consumer essentially is held incognito. This is an outright abuse of human rights.
  However, many conflicts over telephone access, mail, and visits typically involve well-intentioned attempts to reconcile competing principles or interests. These clinical/ethical dilemmas often elude categorization and do not lend themselves to a clearcut breakdown of the two opposing positions. The dynamics of these situations are complex and call for creative synthesis on a case-by-case basis.

Telephone Access

  Whereas hospitalized medical patients usually have telephones in their rooms, those in psychiatric facilities must share a few public telephones (perhaps just one) on the ward. Telephones are placed in public areas because it is assumed that persons diagnosed as mentally ill may require arm's-length monitoring in their use of the telephone.18 Defining the telephone as a scarce public resource can create various kinds of conflict. An individual may make frequent or lengthy calls in violation of house rules, thus provoking other consumers. Or a person may be loud and abusive on the telephone, leading hospital staff to ask that person to lower her voice or get off the telephone.
  These are issues of ward management rather than clinical questions. Maintaining a sense of quiet, comfort, safety, and equity in the community is a legitimate institutional function. It is not, however, strictly related to the individual patient/consumer's best interest - except indirectly, insofar as the collective atmosphere affects the individual.
  Mental health facilities generally assert a duty to prevent residents from harming others. Advocates counter that clinicians do not have a duty to protect third parties from emotional harm and that they have a duty to address behavioral issues raised by the exercise of rights through therapy rather than through control mechanisms.


  The same questions of abuse and harassment arise with written as with spoken communications. Clinicians may also be concerned that consumers will "harm" themselves or others by applying for obviously unsuitable jobs or making other unrealistic commitments. Consumer advocates counter that such behavior is similar to that in which persons in the community frequently engage and should not serve as a basis for denying civil liberties.
  Clinicians also may be concerned when mail from a particular person regularly precipitates regression. Again, consumer advocates counter that receipt of such mail is common in the community and must be dealt with through therapy rather than restrictions.
  Phyllis R. sent her sister daily letters stained with her own blood - hostile, vitriolic letters threatening revenge for the childhood sexual abuse she had suffered. When her sister asked the psychiatrist to stop the flow of letters, he explained that he had no real power and little clinical justification to do so. Instead, he suggested that her sister bring the letters unopened to the hospital, where he would show Ms. R. in therapy sessions that they were unopened. Here the psychiatrist, faced with a demand from a family member that he exert omnipotent control, maintained the clinical stance of fostering autonomy by trying to ally with the healthy side of the person whom he was treating.19
  While actively psychotic, Muriel B. would go through the newspaper and cut out mail order forms which she sent either in her own name or someone else's name. The treatment team prohibited Ms. B. from sending any more mail orders. Her advocate opposed this, arguing that the hospital had no duty to protect direct-mail marketers from minor costs and inconveniences.
  After her psychosis cleared, Ms. B. agreed that the intervention was justified. Some clinicians would say that the episode vindicates an interventionist approach, as with the 'Thank-you theory" of involuntary commitment.20 From a civil-rights viewpoint, however, the outcome was troubling. If the behavior had been a product of Ms. B.'s personality rather than her psychosis, she might have resumed the mailings as soon as she was no longer being monitored. If legal rights were fully respected and clinical resources and patience were unlimited, the clinicians would have explored the issue with Ms. B. in an attempt to dissuade her from mailing the orders, but would not have restrained her from doing so. After all, persons in the community make unwise mail order purchases and default on payment.


  Occasionally, the people with whom a consumer wishes to maintain contact perhaps the only people available for such contact) are those with whom, in the view of clinicians, the consumer has been enmeshed in destructive relationships. When clinicians observe that, every time a particular visitor comes, the consumer is agitated or depressed for the next few days, they may understandably want to curtail that person's visits. Yet their concern for the consumer's developmental progress may clash with a respect for his or her autonomy in intimate personal matters.
  Whenever Claire L. visited her family on a therapeutic weekend pass, she came back in worse shape than when she left. To the advocates, these predictable clinical set-backs had to be accepted as a price of respecting Ms. L.'s autonomy. Her clinicians agreed, but only reluctantly. They believed that supporting Ms. L.'s autonomy and growth in the long run meant encouraging her to accept the painful loss of separation from an enmeshed family. However, they would not do so at the cost of overriding her expressed wishes. Instead, they accepted the visits while exploring with Ms. L. whether she really wanted to go back to her family or was simply acceding to her family's demand that she resume a familiar role.

Tips for Negotiating Conflicts

  Negotiating the clinician-advocate interface is easier when the parties surmount certain common misconceptions. Clinicians and advocates should keep in mind the following points:

  1. People can leave behind rigid ideological positions when aware of the underlying complex reality. Capable, intelligent people who articulate opposing positions vigorously can turn out to be surprisingly reasonable and flexible. Clinicians can ally with consumer advocates in their efforts to foster autonomy and growth, and advocates can find that the clinical perspective coexists comfortably with a commitment to human rights.

  2. The psychiatrist does not act alone. Phrases like "the superintendent or his designee" in the Massachusetts statute underscore the fact that treating physicians do not act independently; rather, they are part of a diverse decision-making team which includes other health professionals, security and other nonclinical personnel, and the hospital administration. These entities - not to mention insurers, attorneys, advocates, involved relatives, and the consumer - weave an intricate web of loyalties around the psychiatrist.

      In particular, the arbitrary restrictions that inflame advocates are often touched off by staff-consumer conflict. A disruption on the ward leads direct-care staff to crack down on one individual, and the psychiatrist signs off on their recommendation. To prevent such escalation of minor disturbances, psychiatrists should help staff recognize and temper their desire to place restrictions, unless those restrictions are clearly justified.

  3. Consider the rationale behind proposed interventions. treatment that appears paternalistic may have various rationales: punitive, behavior-shaping, protective or therapeutic. Clearly, the punitive use of a paternalistic intervention is unacceptable. Whatever the rationale for such intervention, considerations of human rights and autonomy have their own validity and must still be addressed.

  4. Competence assessment is a major factor in deciding between autonomy and intervention, but not a definitive one. As a rule, the autonomy of a competent adult should be respected. However, the following qualifications should be kept in mind.
  First, impairment of decision-making competence is not an all-or-none, totally disabling condition. Rather, it is context-specific - that is, selective, situational, and fluctuating.21 Competence assessment is best undertaken with questions like "Competent to do what? When? With whom?" For example, someone who is incompetent to manage her financial affairs may still be competent to decide whether to telephone her former spouse.
  Second, for ethical and clinical reasons we may frequently choose to respect the autonomy even of incompetent persons to make some decisions - for example, whether to visit with family and friends.
  In summary, respect for the human rights of persons with mental illness is sometimes difficult to maintain, a difficulty that often arises in a complex web of competing interests. However, respect for human rights is essential to quality care. The delivery of mental health care that reflects the democratic values of our society demands from all parties creative thinking rather than a reflexive reversion to paternalism. The authors thank Dan De Hainaut, Massachusetts Mental Health Center Human Rights Office,; and Susan Fendell, Mental Health Legal Advisors Committee, for their helpful contributions.

The authors thank Dan De Hainaut, Massachusetts Mental Health Center Human Rights Officer, and Susan Fendell, Mental Health Legal Advisors Committee, for their helpful contributions.


  1. Supported by Consumer advocates, family members, and mental health professionals, the Bill of Rights streamlines human rights and is an important step forward in protecting the rights of persons with mental illness.
  2. Mass. Gen. L. ch. 123, & 23.
  3. 104 CMR 3.10(7) (inpatient facilities); 104 CMR 15.03(3) (outpatient programs).
  4. Commonwealth of Massachusetts, Department of Mental Health, Human Rights Handbook (May 1993, rev. November 1993), p.11.
  5. See James F. Childress, Who Should Decide? Paternalism in Health Care (1982); Paternalism (Rolf Sartorius ed. 1983).
  6. Surman and Purtilo, Reevaluation of Organ Transplantation Criteria: Allocation of Scarce Resources to Borderline Candidates. 33 Psychosomatics 202, 208 (1992).
  7. Edmund D. Pellegrino and David C. Thomasma, For the Patient's Good: The Restoration of Beneficence in Health Care 35 (1988).
  8. Spencer Eth and Mark J. Mills, Ethical Issues, in 2 Treatments of Psychiatric Disorders: A Task Force Report of the American Psychiatric Association 994, 998 (American Psychiatric Association ed. 1989).
  9. Mass. Gen. L. ch. 123, && 7(a) and 8(a).
  10. See Hauser, Commons, Bursztajn, and Gutheil, Fear of Malpractice Liability and Its Role in Clinical Decision Making, in Decision Making in Psychiatry and the Law 209 (Gutheil, Bursztajn, Brodsky, and Alexander eds., 1991); Bursztajn, More Law and Less Protection: "Critogenesis," "Legal Iatrogenesis," and Medical Decision Making, 18 J. Geriatr. Psychiatry 143 (1985).
  11. "Personal autonomy," it has been noted, "comes into conflict with the concept of parens patriae, the state’s duty to care for persons unable to care for themselves and make competent decisions, and the state’s obligation to avert dangerous behavior." Yank, Lindsay, Barber and Hargrove, Ethical Issues for Academic Participants in State-University Collaboration Programs, 43 Hosp Commun. Psychiatry 1213, 1215 (1992).
  12. Id. (references omitted).
  13. Clinicians may attempt to incorporate a concern for autonomy into beneficence by stating that "both autonomy and paternalism are superseded by the obligation to act beneficently." Pellegrino, supra note 7 at 32.
  14. See Bursztajn and Brodsky, Authenticity and Autonomy in the Managed-Care Era: Forensic Psychiatric Perspectives, 5 J Clin. Ethics 237 (1994); Bursztajn, Gutheil, Hamm, and Brodsky, Subjective Data and Suicide Assessment in the Light of Recent Legal Developments: II. Clinical Uses of Legal Standards in the Interpretation of Subjective Data, 6 Int'l J. Law Psychiatry 331 (1983).
  15. Coverdale, Bayer, McCullough , and Chervenak, Respecting the Autonomy of Chronic Mentally Ill Women in Decisions About Contraception,, 44 Hosp. Commun. Psychiatry 671, 674 (1993)(emphasis added).
  16. Id. At 672.
  17. From this vantage point, "advocates' assertions that they represent patients' interests whereas clinicians represent the system seem counterintuitive to clinicians." Thus, it is believed that "advocacy systems confront clinicians with an adversarial model of conflict resolution." Yank, supra note 11.
  18. See Canning, Hauser, Gutheil, and Bursztajn, Communications in Psychiatric Practice: Decision Making and the Use of the Telephone, in Decision Making in Psychiatry and the Law 227 (Gutheil, Bursztajn, Brodsky, and Alexander eds. 1991).
  19. See Gutheil and Havens, The Therapeutic Alliance: Contemporary Meanings and Confusions, 6 Int'l Rev. Psychoanal. 467 (1979).
  20. See Bursztajn, Gutheil, Hamm, Brodsky, and Mills, Parens Patriae Considerations in the Commitment Process, 59(3) Psychiat. Q. 165 (1988).
  21. See Appelbaum and Roth, Clinical Issues in the Assessment of Competency, 138 Am. J. Psychiatry 1462 (1981); Bursztajn, Harding, Gutheil, and Brodsky, Beyond Cognition: The Role of Disordered Affective States in Impairing Competence to Consent to Treatment, 19 Bull. Am. Acad. Psychiatry Law 383 (1991); Gutheil and Bursztajn, Clinicians' Guidelines for Assessing and Presenting Subtle Forms of Patient Incompetence in Legal Settings, 143 Am. J. Psychiatry 1020 (1986); Gutheil, Bursztajn, and Brodsky, The Multidimensional Assessment of Dangerousness: Competence Assessment in Patient Care and Liability Prevention, 14 Bull. Am. Acad. Psychiatry Law 123 (1986).

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