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Archive for June 2008

Altruism and the Value of Life: Another Response to Velleman

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Intentionally causing one’s death in order to save another is a type of action often excluded from classification as suicide. Heroic “suicides” – pushing a child out of the way of a train, thereby killing oneself, or undertaking a military mission that benefits one’s country but guarantees death, or jumping out of a leaking lifeboat in order to save one’s companions – do not seem to be of a kind with suicides whose sole end is one’s death. As Jacques Choron puts it,

Heroic suicides are obviously quite different from those brought on by serious illness, grief, or an unbearable situation and in this sense are outside the scope of an investigation primarily for the purpose of preventing suicide as an undesirable psycho-social phenomenon. [p. 17, Suicide: An Incisive Look at Self-Destruction, by Jacques Choron. Charles Scribner’s Sons: New York, 1972.]

Heroic suicides – or, perhaps, “altruistic suicides” – are just not the same thing as “suicide” at all.

The fact remains, however, that altruistic suicides are trading their lives for something else, so that it becomes necessary, in Velleman’s terms, to examine the exchange to see if it undermines dignity. Most altruistic suicides would probably pass muster under Velleman’s terms, because in many cases what is exchanged is life for life – one’s life (and thereby essential dignity) may be exchanged to preserve the life (and thereby essential dignity) of another. The goods exchanged are of the same kind.

However, what about an altruistic suicide that was committed not to save a life, but for some other altruistic purpose? A suicidal act committed to save a child from rape or torture, for instance, or to prevent the release of classified information the leakage of which would result in mass suffering, cannot be said to exchange dignity for a good of a like kind. Suicide undertaken to prevent harm to another short of death must be seen as exchanging one’s life and dignity for “mere” interest-dependent values (such as other people not suffering or not being raped), in conflict with the inherent interest-independent value of life. Of course, we must, in Velleman’s view, allow for an exception where a suicide is committed in order to preserve someone else’s rational faculties – for that purpose, unlike preventing torture, is of a kind with life and dignity (as rational faculties are the condition precedent to dignity).

Three possibilities present themselves. First, we might maintain the strange position that heroic suicide for any purpose other than the preservation of the life of others is wrong – that it is wrong to die to prevent children from being tortured and raped – but that it is not wrong to die to preserve someone’s rational faculties for choosing their ends. Or, in the second case, in recognizing the moral propriety of heroic suicide, we can question whether “exchanging life for mere interest-dependent values” is necessarily a moral harm. Third, we might try to argue that acting in the interest of others in the heroic suicide case is somehow a like exchange after all.

I feel that this response will have little to say to those who see no problem with the first option, and can maintain a position that appears so strongly counter-intuitive and contrived. The more interesting question, for me, is whether an argument can be made that sacrificing one’s life in the mere interests of others – unconnected to maintaining their dignity – is somehow different from sacrificing one’s life in one’s own mere interests.

There seem to be cases where sacrificing oneself in another’s interest would be horrible, perhaps even so horrible as to cheapen the value of human life – such as dying to prevent minor property damage. There cannot be a blanket exception for suicide for the benefit of others. What the distinction seems to me to be is the strength of the interest – dying to prevent or relieve great suffering, in oneself or others, seems to be a morally acceptable option, whereas it’s easy to see how dying to prevent someone from chipping a nail could be morally objectionable.

Velleman indicates that suicide is wrong, even to end severe pain, as long as the pain isn’t so severe as to interfere with one’s rational faculties. I would like to know if it is also wrong, in his view, to die to end severe pain, or prevent serious suffering, in others.

Written by Sister Y

June 30, 2008 at 10:15 pm

More Than Half of Gun Deaths Are Suicides

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In 2005, according to CDC statistics, 55% of gun deaths were suicides. Apparently, suicides have outnumbered homicides and accidental deaths by gun for 20 of the past 25 years. An interesting and surprising statistic. But what’s missing from this article by Mike Stobbe, released in the wake of the United States Supreme Court decision interpreting the Second Amendment as a personal right to bear arms?

First, and most importantly, it’s missing any hint that a perspective might exist recognizing a right to suicide. Second, it fails to provide a single reason justifying the paternalism underlying gun bans enacted to prevent suicide in particular (“You can’t have a gun because you might use it to kill yourself”). And, third, there’s something glaringly missing from the recital of success rates for different suicide methods:

More than 90 percent of suicide attempts using guns are successful, while the success rate for jumping from high places was 34 percent. The success rate for drug overdose was 2 percent, the brief said, citing studies.

“Other methods are not as lethal,” said Jon Vernick, co-director of the Johns Hopkins Center for Gun Policy and Research in Baltimore.

That’s right – no mention of hanging, which has a lethality rate of up to 70%. Mention of this fact might have undermined the political point Stobbe was trying to make. (The article also fails to address the paradoxically high suicide rate in gun-free Japan – over twice that of the United States.)

As I have previously written, there is some evidence that reducing guns correlates to reducing suicides. What I object to is taking the “more guns means more suicide” statistic as license to argue in favor of coercive suicide prevention policies, such as gun bans, without examining in the slightest the philosophical basis for such a policy.

Written by Sister Y

June 30, 2008 at 9:52 pm

Respecting and Erasing

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Ending something does not entail denying its value.

In 1959, the artist Robert Rauschenberg asked the much older and more established artist Willem de Kooning to give him a drawing so that he could erase it. Eventually, de Kooning gave him a drawing, executed in heavy crayon, grease pencil, graphite, and ink. Over the course of a month, Rauschenberg erased the drawing and mounted it in a gold frame. View a large image of it here, on Boing Boing – it’s a beautiful object, evocative and moving in its silence.

I relate this here, first, because it is beautiful, and I don’t want to hear any crap about the decadence of modern art and blah blah blah – it is beautiful, it is moving, it is haunting, that is enough. Second, I relate it in response to J. David Velleman, whose “A Right of Self-Termination?” (Ethics 109 (April 1999): 606-628) presents an ethical argument against a moral right to suicide, at least suicide committed in order to make things better for oneself.

The core of the paper’s argument is that it is wrong for a person to kill himself in his own interest, because by doing so, he devalues that which inheres to him – his dignity, in Kantian terms – that is not his to evaluate, but belongs rather to all of humanity. Velleman thinks that we ought to defer to a person as to a judgment of what is in his interests – he just does not think that killing oneself in one’s own interest is morally permissible “solely on the grounds of the benefits [one] will thereby obtain or the harms [one] will avoid.”

Velleman proposes that there is a special kind of value to every person, that logically must exist if his interests are to matter. It is an answer to the question, why should we act in the interests of other people? The answer is, because people matter. This mattering Velleman equates with Kantian dignity, which is further equated with man’s rational nature. (The capacity to rationally choose one’s ends is what gives a person dignity, in Kantian terms.)

Dignity is the reason we respect people (and respect their wishes). Velleman argues that suicide is a form of rejecting this dignity – and that we don’t have the right to do that, because it is not ours to reject, exactly, but a feature of humanity. This dignity, says Velleman, is “a value that [a person] possesses by virtue of being one of us, and the value of being one of us is not his alone to assess or defend. The value of being a person is therefore something larger than any particular person who embodies it.” Therefore we don’t have the right to destroy it. It’s not just that suicide is failing to treat oneself with the respect due to persons, though it is certainly that, according to Velleman – it’s that suicide undermines respect for persons in general.

The story of the paper is this. Professor Velleman had cancer (in real life). A few years ago he was sitting around after dinner at a philosophy conference with some colleagues and a few people were smoking. One of the smoking professors said something about how he knew smoking would probably kill him, but that his enjoyment of smoking outweighed the probable early death it would cause him. Velleman, fresh from the chemo table, was deeply offended. Over the years, he came to realize that, by joking about trading life for pleasure, the professor was implying that human life lacks serious value (dignity), dehumanizing not only himself but Professor Velleman as well. The core of the paper, as I see it, is this:

My host’s remarks implied that an early death, of the sort he was risking and I was hoping to forestall, would be a loss to him that could be offset by sufficient gains. But what would it matter how much I lost or gained if I myself would be no loss? My gains or losses would merit concern only on the basis of concern for me – which, being the basis of concern for them, could not then be offset by that concern. Hence my gains or losses wouldn’t matter unless I had value that could not be offset by their.

My host was implicitly denying the existence of such a value. For he claimed that death was worth worrying about only in respects for which he could be compensated by the pleasures of smoking. He was thus implicitly denying the interest-independent value of a person, without which it couldn’t really matter whether I lived or died.

In an appendix to the piece, Velleman responds to criticisms from Professor F. M. Kamm, in her article “Physician-Assisted Suicide, the Doctrine of the Double Effect, and the Ground of Value” (Ethics 109 (April 1999): 586-605).

Kamm calls one of Velleman’s arguments the Exchange Argument, and interprets it to mean (correctly, says Velleman) that it is forbidden to exchange the intrinsic value of one’s humanity merely to benefit one’s interests, as in suicide or some kind of voluntary slavery. But, Kamm says,

According to Kant, beautiful things (e.g., art) have a value beyond price, though not the dignity that persons have. Most would say (though perhaps Kant would not, given his theory of beauty) that beautiful things have intrinsic value, even if no one cares about them and they satisfy no human interests. Yet we may permissibly exchange beautiful things for money or food. The permissibility of exchanging them for things that have interest-relative value and a market price does not imply, I believe, that they only have interest-relative value. It implies that what has intrinsic aesthetic value has only finite value and could be permissibly exchanged for what has only interest-relative value (e.g., food). But this does not show that beautiful things have only interest-relative value rather than intrinsic aesthetic value. That we can exchange one thing for another does not mean that they share the same essential nature or type of value. The same might be true of persons.

Velleman responds that the painting analogy fails, because when we sell a painting, we are not destroying it, but entrusting it into the care of another art appreciator. A better analogy, says Velleman, would be burning a painting in the fireplace because one has run out of kindling. “But then,” says Velleman, “burning an artwork for kindling would ordinarily be objectionable. Not coincidentally, it’s also what would be analogous to self-interested suicide.”

But I think that analogy fails as well. I am so glad I heard about that empty, erased de Kooning drawing, because there is the proper analogy for a suicide, and, I think, my greatest objection to Velleman here. The act of erasing or destroying does not imply a lack of respect. There is such a thing as respectful erasing. Rauschenberg could believe heartily in the value of de Kooning’s drawing – in fact, the drawing’s artistic value is key to the work’s success – and still, with the consent of de Kooning, erase it. Similarly, I think it is possible to commit suicide without implying that human life, and even one’s own life, lacks value or dignity.

In many cases, as with the de Kooning, the absence of the thing is what heightens its value. When I saw the erased de Kooning, I immediately thought of Miller Williams’ poem “The Curator,” in which a young assistant curator at the Hermitage in Leningrad comes up with a scheme to ship all the paintings out of the city to avoid their destruction by the German bombs. They ship the paintings out, but leave the frames up to make it easier to put things back in their place when the war is over. Williams says:

Nothing will seem surprised or sad again
compared to those imperious, vacant frames.

Russian soldiers come to the Hermitage from all over Russia, and are disappointed that the paintings are gone, so the staff gives tours despite their absence. And gradually the tour of this “Unseen Collection” becomes more popular:

We pointed to more details about the paintings,
I venture to say, than if we had had them there,
some unexpected use of line or light,
balance or movement, facing the cluster of faces
the same way we’d done it every morning
before the war, but then we didn’t pay
so much attention to what we talked about.
People could see for themselves.

Eventually, blind people begin to come for the tour. Eventually, of course, the war is over and the paintings are replaced, but the blind people never come back, and people don’t pay quite as much attention as before.

Can one erase a person in such a manner? Certainly, many who have been erased by death are still valued. Although rational choosing must cease at death, I do not believe that the thing that causes people to matter ceases at death. It is strange that one’s biological life – and, especially, one’s rational capacity – should be the basis for one’s intrinsic claim to matter.

It might even occasionally be true that killing someone else could be done out of respect for his dignity, as in Sharon Olds’ poem “Things That Are Worse Than Death,” in which the speaker imagines killing her son in order to save him from being tortured by the police. An excerpt:

You are speaking of Chile,
of the woman who was arrested
with her husband and their five-year-old son.
You tell how the guards tortured the woman, the man, the child,
in front of each other,
“as they like to do.”
Things that are worse than death.
I can see myself taking my son’s ash-blond hair in my fingers,
tilting back his head before he knows what is happening,
slitting his throat, slitting my own throat
to save us that.

And in the recent novel by Cormac McCarthy, The Road, a father in a post-apocalyptic horror of a world is constantly aware that he might have to kill his son to spare him from being raped, tortured, and eaten by cannibals. Late in the novel, the father and son find a baby lying abandoned over a smoldering cooking fire. It is certainly reasonable to conclude that the father’s actions, in keeping his son alive in such a world, are wrong – that he has failed to respect his son’s dignity and value by keeping him alive even more than the baby’s parents have failed to respect his dignity by burning him as if to eat him. (In reality, of course, evolutionary biology-minded studies of familicide, especially data regarding the virtual male monopoly of familicide compared with more equal gender ratios in killings of children alone, seem to suggest that real killings of children are generally motivated by proprietary feelings, rather than committed out of concern for the children’s dignity. But the possibility remains.)

And many of us feel that such a world – such an unending stream of horrors – is already upon us, and perhaps has been since humanity’s inception. For many of us, the only way to genuinely respect ourselves is to erase ourselves.

I feel compelled to point out that I’m not a fan of Cormac McCarthy and I think his writing is crap. But his book is important, even if he unflinchingly uses words like “vermiculate” and “torsional” and “wimple” (as a VERB) and never met an abstract noun he didn’t want to turn into a verb. I hate “lyrical” writing and I hate McCarthy’s rhythm. But his miserable writing style only partially detracts from the quality of his novel, in this case.

Written by Sister Y

June 30, 2008 at 1:49 am

The Repugnance of the Forced Life Position

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Washington is considering an assisted suicide measure similar to Oregon’s. Predictably, churches, especially the Catholic Church, have spoken out against the measure. The Most Rev. Carlos Sevilla, quoted in the Yakima Herald, provides one of the most repugnant, cruel, mean-spirited defenses of the forced life position I have yet heard:

Initiative 1000 is an attack on our most fundamental beliefs and teaching, and placing it on the November ballot would contradict our proclamation of the gospel of life . . . Pain and suffering and illness are important parts of our faith experience. [Emphasis mine.]

In other words, suffering people who don’t share his religious beliefs should not have the right to die – in a democracy – because his religious beliefs place a value on suffering! God likes suffering, so suck it up.

Meanwhile, in India, lawmakers consider repealing a law that makes attempted suicide a criminal offense. Its Law Commission offers this compassionate analysis:

If a person has the right to enjoy his life, he cannot be forced to live that life to his detriment, disadvantage or disliking. If a person is leading a miserable life or is seriously sick or having an incurable disease, it is improper as well as immoral to ask him to live a painful life and to suffer agony. It is an insult to humanity. [Emphasis mine.]

Indeed, an insult to humanity in the name of God is exactly what Rev. Sevilla is offering.

Analytically, Sevilla’s position appears similar to Velleman’s, in that a particular value that “belongs to humanity” cannot be violated, even if upholding that value causes great suffering to individuals. Compassionate followers of Christ also recently opposed the right of an 11-year-old Romanian girl who was raped by her uncle to get an abortion. The interest-independent value of life, and all that.

Written by Sister Y

June 28, 2008 at 8:09 am

Oregon’s Law

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Oregon’s Death With Dignity Act succeeds in many ways. The Act respects patient autonomy, from its definition of “capable” to mean that

in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist or psychologist, a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available.

to the way it allows patients to decide for themselves whether to notify family members and when – even if – to self-administer the lethal prescription, once requested. (Some people who request suicide assistance don’t use it until months or years after it has been provided.)

Oregon’s law is wrong, however, in limiting access to death to those with terminal illnesses. Although this flawed version is certainly the only version of the law that would have had a chance of being enacted, the fact remains that it is wrong.

First, restricting access to comfortable means of death to those with a terminal illness is actually demeaning to people with terminal illnesses. The idea that human dignity somehow requires that one be able to walk and talk and control one’s bodily functions is demeaning and wrong, as Felicia Ackerman (see Readings) and disability advocates point out. A terminally ill person must decide for him or herself whether to request suicide assistance; it is not the right decision for everyone. But what possible justification could there be for limiting this right to terminally ill people, except that their lives are somehow less valuable than those lives that will (probably) continue on for many years? The designation “Death With Dignity Act,” of course, hints at the demeaning implication of the limit: some deaths are dignified, other are not. The state will decide for you whether you are undignified enough to be allowed to die peacefully. (The Oregon law does not allow assisted suicide to be provided to non-terminally-ill disabled or merely old people, but the implications of the restriction to terminally ill people are clear enough.)

Second, the Oregon law’s restriction against suicide assistance to non-terminally-ill people is wrong because suicide is an important right for everyone, not merely the terminally ill. In fact, if anything, the right is more important for those who are not terminally ill, because their time of suffering will most likely be much longer than those who will die soon naturally. And, as pointed out by Velleman, terminally ill people are much more likely to be harmed by having the option to die than healthy people are, because they are more likely to be dependent on the care of others and therefore to feel themselves to be a burden. A more sensible restriction might be to allow suicide assistance only to non-terminally-ill people! I am not, of course, in favor of this restriction, but it makes more philosophical sense than Oregon’s law, which makes political sense, if anything.

Meanwhile, Switzerland recently extended suicide rights to those with incurable mental illnesses. Jacob Appel, writing in the Hasting Center Report, explains the basic ethical issues:

Another set of objections are from those who support a basic right to assisted suicide in certain situations, such as those of terminal disease, but do not wish to extend it to cases of severe and incurable mental illness. This resistance may be inevitable, considering the increased emphasis that contemporary psychiatry places on suicide prevention, but the principles favoring legal assisted suicide lead logically to the extension of these rights to some mentally ill patients.

At the core of the argument supporting assisted suicide are the twin goals of maximizing individual autonomy and minimizing human suffering. Patients, advocates believe, should be able to control the decision of when to end their own lives, and they should be able to avoid unwanted distress, both physical and psychological. While these two principles might explain why a victim of amyotrophic lateral sclerosis or cancer would choose assisted suicide, they apply equally well in many cases of purely psychological disease: a victim of repeated bouts of severe depression, particularly in cases where treatment has consistently proven ineffective, rationally might prefer dignified death over future suffering. [Hastings Cent Rep. 2007;37(3):21-23. Via Medscape. Emphasis mine.]

Written by Sister Y

June 24, 2008 at 3:40 am

That Statistic that 90% of Suicides Have a Diagnosable Mental Illness

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There’s a widely reported statistic floating around, unquestioningly reported (often without noting its source) by groups with a stake in its truth, such as the National Institute of Mental Health and the American Foundation for Suicide Prevention. The statistic is this:

Ninety percent of all people who die by suicide have a diagnosable psychiatric disorder at the time of their death.

The statistic is used to imply that, first, mental illness, and not individual choice, is the cause of suicide, and is often cited to justify coercive suicide prevention policies; and, second, that money invested in mental health treatment will reduce suicides. I wish to question the reliability of this statistic, as well as the two implications that are often drawn from it.

What is the source of this alarming statistic? It may surprise advocates of evidence-based medicine to learn that many of the source studies hardly qualify as scientific studies at all, in that many of them are entirely uncontrolled. The studies rely on a technique known as a “psychological autopsy,” which tries to diagnose mental disorders in a deceased person based on interviews with family members. The so-called first generation of studies simply chose a study group of known suicides, and tried to identify mental disorders within the study group, with no control at all. This 1996 study, for instance, has no control, but purports to find that 90.1% of suicides have a diagnosable Axis I mental disorder. This is the study that the National Institutes of Mental Health cite as their basis for the figure!

A new generation of studies “during the last decade” has attempted to apply basic scientific control procedures, however. In these studies, a group of known completed suicides was matched with a control group of living people with similar characteristics. Interviews, medical records, and “information from the coroner” are collected and evaluated by psychiatrists who are often supposedly “blind to outcome” – that is, they are not supposed to know who is a suicide and who is alive. If an evaluator knew someone was a suicide, he might be predisposed to look extra hard for information indicating a psychiatric disorder.

Keeping evaluating psychiatrists outcome-blind seems like a particularly difficult task, especially given that “information from the coroner” is included in the case reports. More importantly, those preparing case reports are necessarily not outcome-blind. The idea that their preparation would not be influenced by knowledge of outcome (suicide or living) is rather hard to swallow.

At any rate, one (dubiously) controlled study of young men found that 88% of the suicides, compared with 37.3% of the non-suicides, had a diagnosable mental disorder. To report this study as finding that “90% of suicides have a diagnosable mental disorder” is to ignore its more important implications: well over a third of this population of young males has a mental disorder! But 37.3% of young men do not commit suicide. Clearly, mental illness is not much of a “cause” of suicide. Some scientists characterize it as a necessary but not sufficient condition.

It is also important to point out what counts as a mental disorder in these studies. Depression counts, but also alcohol or drug dependence, and often any Axis I or even Axis II disorder (as in the study of young men). It is instructive (and suspicious) that the percentage of suicides found to have a “mental disorder” does not seem to vary depending on the investigator’s definition of “mental disorder.”

It is also important to think about the vague, unscientific definitions of mental disorders found in the DSM-IV and its earlier incarnations. Given the vague definition of depression, for instance, is it really any surprise that people who commit suicide would meet the criteria for depression? (Actually, studies vary extremely widely in how many suicides they find to have been depressed – all the way from 30% to 90%. Personality disorders vary even more widely – from 0% to 57%. This variance should make us very suspicious.) What person deciding to end his life wouldn’t, for example, experience a loss of pleasure in ordinary activities, or changes in sleep or appetite, or feelings of hopelessness or guilt? As for drug and alcohol use, what person, faced with the desire to die, wouldn’t try to assuage his pain by any means available – including alcohol and drugs? In my own case, as a suicide, I view alcohol and drugs as a temporary suicide prevention device. Recent research in nicotine use, for instance, has revealed that nicotine may help symptoms like anxiety and depression, and help people with ADHD to function:

An even more important reason for the link between depression and smoking may stem from the pleasure that smoking can bring. As Dr. Fowler’s research suggests, smoking triggers higher dopamine levels in the brain; elevated levels of dopamine have been linked to feelings of well-being and pleasure and have been found in users of heroin and cocaine. Such emotions may be particularly welcome by individuals suffering from depression.

I would like to point out that I do not smoke. But it is easy to see how this logic would apply to alcohol and other drugs. We should expect suicidal people to be more willing to experiment with illicit ways of promoting happiness, compared to the general population. To say that people who commit suicide are likely to have used drugs or alcohol is not to say that alcohol or drug use caused suicide.

Does investing money in mental health care prevent suicide? The relationship is shaky at best. The Japanese government’s recent efforts to reduce suicide, through both coercive and non-coercive means, including increased mental health spending, have failed miserably. A 2005 study published in JAMA found that “despite a dramatic increase in treatment, no significant decrease occurred in suicidal thoughts, plans, gestures, or attempts in the United States during the 1990s.” While the frequency of treatment of individuals who engaged in suicidal behavior more than doubled, the suicide rate dropped only 6%.

The statistic that 90% of suicides have a diagnosable mental illness, so gleefully reported by those in the anti-suicide industry, is questionable. Even if it has some basis in fact, vagueness of diagnostic criteria and other special factors detract from any conclusions that can be drawn from it. What is most uncertain is whether investing in mental health treatment actually reduces suicide. (This is made even more uncertain by the failure of mental health treatment even to, well, treat mental illness.)

A more realistic and ethical route would be to accept suicide as a relatively rare but natural and acceptable way to end life, to provide means of suicide that are effective and not harmful to bystanders, to allow competent adults to opt out of coercive suicide “rescue,” and to focus any government or private spending on alleviating suffering, rather than preventing suicide.

See also: What the DSM-II Got Right, my examination of changes in the diagnostic taxonomy for depression since the DSM-II and their implications for suicide rights.

Update: Jason Malloy points me to this 2004 meta-study, studying suicides in North America, Australia, Europe, and Asia. “Twenty-seven studies comprising 3275 suicides were included, of which, 87.3% (SD 10.0%) had been diagnosed with a mental disorder prior to their death,” say the authors. This is far superior to the studies that attempt to backwards-infer mental illness. My main problem with this study is that it’s tracking any and all “mental disorders” and even crap like “alcohol use” is coded as a disorder, not to mention “intermittent depressive disorder” and “neurotic depression” (i.e., they’re not even using the piss-poor standards of the DSM-IV).

(See Malloy’s admirably tolerant responses to my increasingly drunken arguments here.)

Written by Sister Y

June 20, 2008 at 3:14 am

Sources of Coercion: A Review of California Law

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Since I ultimately hope to make policy proposals, in the form of proposed changes to the law, to end coercive suicide prevention practices (though, of course, with no realistic hope of these being implemented in this generation), and now that I have the philosophical basis for the project at least outlined, it might be helpful to review exactly what the law is, in California at least, regarding coercive suicide prevention.

The single worst document in California law, from the anti-coercion perspective, is Kockelman v. Segal, 61 Cal.App.4th 491 , 71 Cal.Rptr.2d 552 (1998), which I will describe below in Section 2.

1. Forced hospitalization

California’s Lanterman-Petris-Short Act, located in the California Welfare and Institutions Code, is actually a relatively progressive law for people subject to mental health treatment, and regulates (but ultimately allows) forced hospitalization.

The most relevant provision of the act is the famous Section 5150, which allows the involuntary detention, for up to 72 hours, of a person when there is probable cause to believe that, as a result of mental illness, he is a danger to himself, a danger to others, or is unable to care for himself (gravely disabled). (The 72 hour hold can be extended to a 14 day hold upon an administrative hearing; longer holds, up to and including conservatorship, require increasing court involvement.)

The specification that forced hospitalization may only take place if the “danger to self” is a result of a mental illness appears to allow for the possibility of rational suicide. But, of course, in the context of a suicidal person, is it difficult to determine whether the suicide attempt or suicidal intent occurs “as a result of a mental illness.” In practice, any suicide attempt, behavior, or intent is automatically treated as if it were the result of a mental disorder, despite the obvious lack of evidence to support this practice. The most rational suicide in the world, if discovered before the attempt was completed, would certainly be hospitalized. (Socrates would be issued hospital pajamas and slippers, have his jewelry removed, and be given Prozac and group therapy.) This practice fails to accord both with the requirements of the law, important philosophical principals of self-determination, and, as I have mentioned before, the interests of non-suicidal “signalers.”

There is no opt-out. A competent, rational adult has no right to refuse to be “treated” (imprisoned and forced to remain alive).

Another important provision of the Act is the immunity it provides for people who detain and forcibly hospitalize those they think have a mental illness and are either dangerous or gravely disabled. Section 5278 provides that “Individuals authorized under this part to detain a person for 72-hour treatment and evaluation pursuant to Article 1 (commencing with Section 5150) . . . shall not be held either criminally or civilly liable for exercising this authority in accordance with the law.” This has been interpreted to mean that, as long as the detention is supported by probable cause according to a court, the person detaining the individual alleged to be mentally ill may not be sued or prosecuted for imprisoning him. This law essentially encourages police and health workers to detain people, assuring them that there will not be any consequences for interfering with another person’s freedom.

2. Duty to prevent a suicide (by coercive means if necessary)

To explain the duty to prevent a suicide under California law, I will link to the major cases and, as I have time, explain the relevance of each one to the development of a duty to use coercive suicide prevention methods.

  • Meier v. Ross General Hospital, 69 Cal.2d 420 (1968).

    An early case establishing the liability of a hospital for the wrongful death of a patient who commits suicide while involuntarily committed to the hospital’s care.

  • Nally v. Grace Community Church, 47 Cal.3d 278 , 763 P.2d 948; 253 Cal.Rptr. 97 (1988).

    The California Supreme Court found that a member of the clergy, as a “non-therapist counselor,” owed no duty to prevent the suicide of a congregation member he was counseling by referring him to a licensed counselor, even where the suicide was foreseeable. Nally seemed like a victory against coercive suicide prevention practices; Chief Justice Lucas, in his opinion, even quotes an earlier case, Bellah v. Greenson, 81 Cal.App.3d 614 , 146 Cal.Rptr. 535 (1978), in which the court (in dicta) explicitly recognizes the reasons that coercing counselors to use coercive suicide prevention methods could be harmful to patients:

    Similarly, Bellah recognized that creating a duty on the part of a psychiatrist to breach the confidence of a doctor-patient relationship by revealing disclosures made about the suicidal intent of his patient would unduly extend the Tarasoff holding, and “could well inhibit psychiatric treatment.” (Bellah, supra, 81 Cal.App.3d at p. 621.) Bellah reasoned that in Tarasoff, we held only that “where a therapist knows that his patient is likely to injure another and where the identity of the likely victim is known or readily discoverable by the therapist, he must use reasonable care to prevent his patient from causing the intended injury. Such care includes, at the least, informing the proper authorities and warning the likely victim. However, [Tarasoff] did not hold that such disclosure was required where the danger presented was that of self-inflicted harm or suicide. … Instead, [Tarasoff] recognized the importance of the confidential relationship which ordinarily obtains between a therapist and his patient, holding that ‘… the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others. … (Tarasoff, supra, p. 441, italics added.)'” (Bellah, supra, 81 Cal.App.3d at pp. 620-621.) [Nally at 295, quoting Bellah. The Tarasoff case mentioned is the famous California case imposing liability on a psychiatrist for failing to violate confidentiality and disclose his client’s intention to harm a third party. Emphasis mine.]

    Nally, however, interpreted Bellah (again in dicta) as recognizing a duty owed by a psychiatrist or licensed counselor “when a psychiatrist’s (or hospital’s) treatment of a suicidal patient falls below the standard of care for the profession, thus giving rise to a traditional malpractice action.” (Nally at 296). Presumably, the “standard of care” could include coercive means.

  • Kockelman v. Segal, 61 Cal.App.4th 491 , 71 Cal.Rptr.2d 552 (1998).

    The locus of the duty to use coercive means to prevent a suicide is most clearly found in Kockelman, one of the most harmful opinions in the State of California for purposes of counselor-patient relations. Any hopes raised in the Nally opinion were dashed in Kockelman.

    The Kockelman court allowed a woman whose husband committed suicide during the course of outpatient treatment to sue his treating psychiatrist for wrongful death, apparently for failing to prevent his suicide. The court reasoned that whether the doctor had violated the professional standard of care was a question of fact that would have to be determined at trial. Given the facts of the case, it is difficult to see what the court could mean that the doctor could have done, short of using coercive means (forced hospitalization) to prevent the suicide. An excerpt from the factual background:

    Kockelman kept his appointment on September 2, 1993. He reported he was not doing much better, although he appeared neatly dressed and clean-shaven. Dr. Segal wrote that it was “mysterious” to him how Kockelman could rouse himself when needed and at other times could not get out of bed. But again he found it impossible to engage Kockelman in any psychodynamically oriented dialogue. He recommended increasing the Prozac dosage and restarting the lithium, but noted he did not feel “very optimistic” that this would make a difference. He discussed the possibility of ECT with Kockelman and noted he would see what could be arranged.

    Kockelman died on September 5, 1993, three days after his last appointment with Dr. Segal, from an overdose of desipramine. Valerie Kockelman stated that her husband was feeling more energetic and cheerful the last week before his death and had gone to work each day. She said “it was like he was a new person.” They were planning a car trip to visit their daughter in Santa Rosa on the Saturday of a Labor Day weekend, and he was looking forward to it. On Saturday morning Kockelman told her he wanted to stay home and he urged her to go by herself. He did not seem depressed to her and appeared to be in good spirits. He told her he just wanted to “rest up.” She left Saturday and when she returned home the following evening she discovered her husband’s body. [Kockelman at 497. Emphasis and link mine.]

    Apparently, psychiatrists must not only be their patients’ jailers; they must also be mind readers. Also: be sure to hospitalize anyone who looks cheerful!

  • Cruze v. National Psychiatric Services, Inc., 105 Cal.App.4th 48, 129 Cal.Rptr.2d 65 (2002).

    A terminally ill woman was involuntarily hospitalized by her physician after she discussed the possibility of committing suicide. The court denied her right to sue her physician for malpractice, basing its decision on the immunity granted by Section 5278 of the California Welfare and Institutions Code (explained above).

  • Jacobs v. Grossmont Hospital, 108 Cal.App.4th 69, 133 Cal.Rptr.2d 9 (2003).

    The California Court of Appeal confers a bit of hope, this time by determining that the grant of immunity in Section 5278 of the Welfare and Institutions Code (explained above) is not absolute, and does not protect a hospital from claims resulting from improper care. This is still not terribly good news, as it might be used to sue a hospital or other person for failing to use means that were coercive enough. But at least it imposes a duty of care on people who involuntarily detain others.

  • Hernandez v. KWPH Enterprises, 116 Cal.App.4th 170 , — Cal.Rptr.3d — (2004).

    In Hernandez, a recent California Court of Appeal case, the court found that an ambulance service owes no duty of care to a voluntary patient its employees are transporting when the patient exhibits bizarre behavior and then runs away from their custody. (The patient in this case ran onto a highway and was hit by a car and killed.) In my opinion, the court was correct in refusing to impose liability on ambulance personnel for failing to coercively prevent a suicide (or perhaps accidental death). The case does not go far enough, of course, but it signals a good trend. It could have been much worse.

Written by Sister Y

June 18, 2008 at 9:45 pm