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Running head: COERCION TO CONTRACT

Law and Human Behavior, in press.

From Coercion to Contract: Reframing the Debate on Mandated Community Treatment for People with Mental Disorders Richard J. Bonnie and John Monahan

Electronic copy available at: http://ssrn.com/abstract=1758839

From Coercion to Contract

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Abstract Approximately half the people receiving treatment in the public sector for mental disorder have experienced some form of ―leverage‖ in which deprivations such as jail or hospitalization have been avoided, or rewards such as money or housing have been obtained, contingent on treatment adherence. We argue in this Essay that framing the legal debate on mandated community treatment primarily in terms of ―coercion‖ has become counterproductive and that the debate should be re-framed in terms of ―contract.‖ Language derived from the law of contract often yields a more accurate account of the current state of the law governing mandated community treatment, is more likely to be translated into a useful descriptive vocabulary for empirical research, and is more likely to clarify the policy issues at stake than the currently stalemated form of argumentation based on putative rights. Our hope is that adopting the language of contract may help to identify those types and features of mandated community treatment that are genuinely problematic, rather than perpetuating the unhelpful and misleading assumption that all types of leverage amount to ―coercion.‖

Electronic copy available at: http://ssrn.com/abstract=1758839


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Mandating adherence to community-based mental health treatment is one of the most contested human rights issues in mental health law in the United States at the beginning of the 21st century. While 42 American jurisdictions have statutes nominally authorizing outpatient commitment—a legal order to adhere to prescribed community treatment—until recently few states made substantial use of these laws. With the enactment of outpatient commitment statutes in New York State1 in 1999, in California2 in 2002, and in Florida3 and Michigan4 in 2004, scholarly interest in the topic has increased.5 We are among those who have suggested that outpatient commitment is best seen not as a free-standing legal phenomenon, but rather as one of several forms of ―leverage‖ by which negative events, such as incarceration or hospitalization can be avoided, or positive events, such as placement in subsidized housing or the receipt of disability benefits, can be experienced, contingent on whether a person adheres to treatment in the community.6 An integrated approach to mandated treatment in the community has several advantages. Cross-cutting empirical questions, such as whether patients feel that they have been treated fairly

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N.Y. Mental Hygiene Law §9.60 (C). A.B. 1421 (2002). 3 S.B. 700 (2004). 4 Public Act 496 of 2004. 5 See Marvin Swartz and John Monahan (Eds) (2001). Special Section on Involuntary Outpatient Commitment. 52 PSYCHIATRIC SERVICES 323 (2001); John Petrila, Susan Ridgely, and Randy Borum. Debating Outpatient Commitment: Controversy, Trends, and Empirical Data. 49 CRIME & DELINQUENCY 177 (2003). 6 John Monahan, Richard Bonnie, Paul Appelbaum, Pamela Hyde, Henry Steadman, and Marvin Swartz. Mandated Community Treatment: Beyond Outpatient Commitment. 52 PSYCHIATRIC SERVICES 1198 (2001); John Monahan, Marvin Swartz, and Richard Bonnie. Mandated Treatment in the Community for People with Mental Disorders. 22 HEALTH AFFAIRS 28 (2003): John Petrila and John Monahan (Eds). Special Issue: Mandated Community Treatment. 21 BEHAVIORAL SCIENCES & THE LAW 411 (2003). 2


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(and have been accorded ―procedural justice‖7) can be identified and common problems, such as cost-shifting,8 can be isolated. However, such an integrated approach also has disadvantages—it elides important differences among the various forms of mandated community treatment, and could obscure valuable lines of empirical and ethical inquiry. The first study to obtain systematic information on how often given forms of leverage are imposed on people with mental disorder in an attempt to improve their adherence to treatment in the community has recently been published.9 Broadly speaking, approximately half of the publicsector patients surveyed at five sites across the United States had experienced at least one form of leverage at some point in their treatment history. Given that mandated treatment is now ubiquitous in serving traditional public-sector patients, the time may be right to revisit the language in which the policy debate over mandated community treatment has been framed. In brief, we argue in this Essay that framing the debate primarily in the vocabulary of ―coercion‖ has become counterproductive and that re-framing it in the language of ―contract‖ may allow for fresh insights and invigorated discussion. We hasten to add, however, that using the lens of contract does not assume that therapeutic leverage is never properly understood as coercive; indeed the vocabulary of contract encompasses the idea that a contract executed under duress has been coerced and is therefore voidable. 10 Our hope is that adopting the language of contract may help us to identify those types and features of mandated community treatment that

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Charles Lidz, Steven Hoge, William Gardner, Nancy Bennett, John Monahan, Edward Mulvey, and Loren Roth. Perceived Coercion in Mental Hospital Admission: Pressures and Process. 52 ARCHIVES OF GENERAL PSYCHIATRY 1034 (1995). 8 Anna Sinaiko and Thomas McGuire, Patient Inducement, Provider Priorities and Resource Allocation in Public Mental Health Systems (submitted for publication). 9 John Monahan, Allison Redlich, Jeffrey Swanson, Pamela Clark Robbins, Paul Appelbaum, John Petrila, Henry Steadman, Marvin Swartz, Beth Angell, and Dale McNiel, Use of Leverage to Improve Adherence to Psychiatric Treatment in the Community. 56 PSYCHIATRIC SERVICES 37 (2005). 10 Robert Scott and Jody Kraus, Contract Law and Theory 403-425 (Rev 3d Ed, 2003).


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are genuinely problematic, rather than perpetuating the unhelpful and misleading assumption that all types of leverage amount to ―coercion.‖11 We will first sketch the essence of our view that mandated community treatment is usefully analyzed within a paradigm of contract, and then apply the vocabulary of contract to each form of leverage subsumed under the umbrella of mandated community treatment. Contracts The essence of contract is bargaining.12 One party makes an offer to another: I will promise to do X if you promise to do Y. The second party accepts the offer, or rejects the offer, or makes a counter-offer, in which case the bargaining continues. At the successful conclusion of the bargaining, there has been a ―manifestation of mutual assent‖ between the two parties to the conditions of an agreement. If the party making a promise receives something of value in exchange for making the promise—a ―consideration‖—a contract has been formed and will be enforced by the courts. If one party later commits a material breach of the contract, i.e., does not, in fact, perform as promised, the other party will be discharged from its own obligation to perform. According to Robert Scott and William Stuntz13, ―[t]he normative claim that supports enforcing bargains is that voluntary exchange offers people more choices than they would otherwise enjoy and, other things being equal, more choice is better than less.‖ This is especially true for individuals whose choices are limited to begin with:

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John Monahan, Charles Lidz, Steven Hoge, Edward Mulvey, Marlene Eisenberg, Loren Roth, William Gardner, and Nancy Bennett, Coercion in the Provision of Mental Health Services: The MacArthur Studies, in RESEARCH IN COMMUNITY AND MENTAL HEALTH: COERCION IN MENTAL HEALTH SERVICES B INTERNATIONAL PERSPECTIVES. Edited by Morrissey J, Monahan J. Stamford, Connecticut, JAI Press, 1999; COERCION AND AGGRESSIVE COMMUNITY TREATMENT: A NEW FRONTIER IN MENTAL HEALTH LAW. Edited by Dennis, D, Monahan, J. New York, Plenum Publishing Corporation, 1996.. 12 See, for example, Marvin Chirelstein, CONCEPTS AND CASE ANALYSIS IN THE LAW OF CONTRACTS (4th ed) (2001).


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The norm of expanded choice is solely concerned with the marginal effects of the contract on an individual‘s choices. A person with few and unpalatable choices may live in a coercive environment. An offer that exploits those circumstances is nevertheless value enhancing, and enforcement is appropriate. More choices are better, even—perhaps especially—if one has few to begin with. (Id. at 1920) By employing the contract paradigm, we aim to refocus attention on the possibility of expanded choice, as compared with an emphasis on constricted choice—the distinguishing feature of the coerced treatment paradigm within which the issue of mandated treatment has customarily been framed. Our central claim is that many forms of mandated treatment now being used expand choice—i.e., they give the person more choices than they otherwise would have had, albeit within a severely constricted range. In the clearest case, for example, a person otherwise likely to be sentenced to a term of incarceration for a criminal offense is given an additional option through a plea agreement involving probation conditioned on treatment compliance. Using a plea agreement to illustrate the idea of expanded ―choice‖ may strike some people as counter-intuitive—after all, the defendant has very little bargaining power when he or she succumbs to the prosecution‘s ―offer‖ of a more lenient punishment than otherwise would have been sought and imposed. It seems like the prosecution has all the cards and defendants (especially those with mental disorders) have none. How can we use the language of contract in such an overwhelmingly coercive environment? The answer is that the defendant does have a choice—he or she has the option of going to trial (putting the state to the time, trouble and cost of trying to proving his guilt) and refusing to assist the state in investigating and prosecuting other people. These prerogatives are of genuine value in the criminal justice system as it is now 13

Robert E. Scott and William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1009 (1991-1992).


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designed, and provide meaningful consideration for the state‘s concessions on charges and sentence. This is not to defend the practice of plea bargaining, but only to demonstrate that it depends on negotiation and choice,14 however disparate the power of the parties may be. As long as the defendant has been fairly charged, the risks of going to trial have not been unfairly magnified, and the conditions themselves are otherwise permissible,15 the plea agreement is voluntary in a legal sense (i.e., has not been ―coerced‖), and that is the way the Supreme Court has characterized it. 16 Another advantage of using the contract paradigm in the context of mandated community treatment is that it calls attention to the process of negotiation that typically leads to an ―agreement‖ between the consumer and the leveraging party, and that also continues thereafter during the treatment process. In this respect, the relationship between the parties (including perhaps the service provider) resembles a relational contract17 under which the parties depend on the continuation of the relationship, and are prepared to modify specific terms in a way that best promotes the long-term stability of the relationship in the face of changing circumstances. Empirically speaking, the quality of the relationship between the ―contracting parties‖ is a key variable, as is the dynamic process of negotiation during the period of treatment.

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Douglas W. Maynard, INSIDE PLEA BARGAINING: THE LANGUAGE OF NEGOTIATION (1984). Some rights may not be waived by a plea agreement, such as the right to invalidate the plea due to ineffective assistance of counsel. This exception tracks the idea in contract law that unequal bargaining power may lead to an agreement including ―unconscionable‖ provisions that should not be enforced. See Robert Scott and Jody Kraus, Contract Law and Theory 553-69 (Rev 3d Ed, 2002). In the present context, an agreement to submit to ―psychosurgery‖ in order to avoid an otherwise valid prison term or to gain access to subsidized housing could be regarded as void on public policy or ―unconscionability‖ grounds. See Kaimowitz v. Department of Mental Health, No. 73-19434-AW (Cir. Ct. of Wayne Co., Mich, July 10, 1973). 16 See Brady v. United States, 397 U.S. 742 (1970) (―We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.‖) 17 See generally Charles Goetz and Robert Scott, Principles of Relational Contracts, 67 VIRGINIA LAW REVIEW 1089 (1981). 15


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As will be discussed further below, not all forms of mandated treatment are sensibly understood as being based on a valid agreement which expands choices. Some, like preventative outpatient commitment, are undeniably coercive (although they may nonetheless be justified). Others, such as linking treatment with social welfare benefits, are more ambiguous. The challenge in these contexts is to decide whether the possibility of treatment-contingent housing or welfare benefits expands the person‘s choices or constricts them. When the patient accepts the housing authority‘s offer of treatment-linked housing, has he or she entered into a valid, voluntary agreement? Or is the agreement invalid because the tenant‘s consent was coerced (i.e. produced under duress) because denying or terminating needed housing would be wrongful? In these cases, the language of contract incorporates the idea of coercion; it does not displace it. Alan Wertheimer18 has stated that ―the ability to obligate oneself by creating a binding contract is an important aspect of our freedom‖ (p 19). ―Voluntariness—and, in particular, the absence of coercion,‖ he stated, is ―a necessary condition of obligations grounded in agreement‖ (p. 21). How is one to determine which contractual decisions are voluntary and which are the product of coercion? He formulates the underlying issue as follows: The standard view of coercive proposals is that threats coerce but offers do not. And the crux of the distinction between threats and offers is that A makes a threat when B will be worse off than in some relevant baseline position if B does not accept A=s proposal, but that A makes an offer when B will be no worse off than in some relevant baseline position if B does not accept A=s proposal. On this view... the key to understanding what counts as a coercive proposal is to properly fix B=s baseline. We will apply Wertheimer‘s approach to each of the four contexts in which leverage is


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being used – criminal justice, disability benefits, subsidized housing, and outpatient commitment. Our goal here is to identify the individual‘s ―legal baseline,‖ in order to determine whether the language of contract yields an appropriate characterization of mandated community treatment. We are aware that taking the individual‘s ―legal baseline‖ as the point of reference is not unproblematic. One could also take the individual‘s ―moral‖ baseline as central: regardless of what forms of leverage current law allows or prohibits, what forms of leverage can legitimately be imposed on an individual with mental disorder to raise the likelihood that he or she will adhere to treatment in the community? Here, legal arguments are exchanged for moral ones. If one holds the moral view that incarceration should be reserved only for the most serious violent offenses, that all citizens should be entitled to housing and should receive a minimal income to spend as they choose, or that involuntary inpatient hospitalization should be abolished because it offends individual liberty, then one would see virtually all forms of leverage currently being used to obtain treatment adherence as coercive threats, since the individual would be being made worse off than in his or her moral baseline by refusing treatment. We have no desire to stifle debate on the profound questions of social justice bearing on the legitimacy of mandated treatment for persons with mental illness. Recognizing, however, that people‘s views about moral baselines differ sharply, we have chosen in this Essay the more manageable task of addressing legal baselines.19

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COERCION, Princeton University Press, 1987. In addition, we address in this Essay the individual‘s ―objective‖ legal baseline. We have not addressed the individual‘s ―subjective‖ legal baseline, the beliefs that the individual may have as to his or her entitlements. Regardless of what the law says, people who believe that disability checks are ―my money‖ or that subsidized housing is ―my apartment‖ are likely to experience what we are calling ―perceived coercion‖ to a much greater extent than people who believe that the government is giving them a deal. Would using the language of contract have a different effect on perceived coercion than using the language of rights? We see this as an empirical question, and an 19


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We are also assuming, for present purposes, that the individuals whose treatment is being leveraged by ―agreement‖ are competent to enter into such arrangements. The specification of criteria for informed choice under these circumstances poses interesting questions on its own terms, but that challenge lies outside the scope of this paper.20 Leverage: Avoidance of Jail According to the recent 5-site survey of the prevalence of mandated community treatment, between 15 and 30 percent of all people receiving treatment for serious mental disorder in the public sector—and up to half of all of the people who have been arrested or convicted of a crime—have experienced therapeutic leverage in the criminal justice system.21 This can happen in a variety of circumstances. A general criminal court can make treatment adherence a condition of suspended prosecution, or a condition of suspended sentencing, or a condition of probation.22 As the Council of State Government‘s 2002 Criminal Justice/Mental Health Consensus Project23 stated, ―Typically, when a judge sentences an offender [with a

interesting one. See, for example, Norman Poythress, John Petrila, Annette McGaha, and Roger Boothroyd, Perceived Coercion and Procedural Justice in the Broward County Mental Health Court. 25 INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 517 (2002); Eric Elbogen, Jeffrey Swanson and Marvin Swartz, Effects of Legal Mechanisms on Perceived Coercion and Treatment Adherence in Persons with Severe Mental Illness. 191 JOURNAL OF NERVOUS AND MENTAL DISEASE 629 (2003); Marvin Swartz, Ryan Wagner, Jeffrey Swanson, Virginia Hiday, and Barbara Burns. The Perceived Coerciveness of Involuntary Outpatient Commitment: Findings from an Empirical Study. 30 JOURNAL OF THE AMERICAN ACADEMY OF PSYCHIATRY AND THE LAW 207 (2002);Sarah Rain, Henry Steadman and Pamela Robbins, Perceived Coercion and Treatment Adherence in an Outpatient Commitment Program. 54 PSYCHIATRIC SERVICES 399 (2003). 20 It is likely that the capacity requirements would vary somewhat from context to context, depending on the consequences of non-compliance with the agreement. In the context of a plea agreement, where non-adherence could lead to incarceration, the defendant must have the capacity to understand the consequences of pleading guilty and the ability to make a rational choice; by contrast, the capacity needed to agree to the terms of a housing agreement under clinically emergent circumstances would be fairly minimal. Compare Godinez v. Moran, 509 U.S. 389 (1993) with Zinermon v.Burch, 494 U.S. 113 (1990). 21 John Monahan et al, footnote 9, supra. 22 Jennifer Skeem, John Encandela, and Jennifer Louden, Perspectives on Probation and Mandated Mental Health Treatment in Specialized and Traditional Probation Departments. 21 BEHAVIORAL SCIENCES & THE LAW 429 (2003); Jennifer Skeem and John Petrila, Problem-solving Supervision: Specialty Probation for Individuals with Mental Illness. 40 COURT REVIEW 8 (2004). 23 Council of State Governments. (2002). Criminal Justice/Mental Health Consensus Project. Available at www.consensusproject.org


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mental disorder] to probation, the order may read that the offender is to participate in treatment, whether drug, alcohol, or mental health‖ (p. 120; emphasis added). Alternatively, the charges against a mentally disordered defendant can be disposed of by a specialist mental health court.24 Mental health courts differ from one another on at least four dimensions: the type of charges accepted (felony or misdemeanor), the type of adjudication model employed (pre or post-plea), the type of sanctions used (jail or no-jail), and the type of supervision imposed (mental health or criminal justice personnel).25 As an empirical matter, these distinctions between generalist and specialist courts, or among different types of specialist courts, may be of crucial significance in determining whether using the possibility of conviction and incarceration as leverage to obtain treatment adherence ―works‖ in the sense of actually increasing adherence and producing desired outcomes for the defendant and for society (e.g., better functioning, reduced recidivism, cost-savings). Conceptually speaking, however, we see no meaningful distinction among any of these operational models. In all the varieties of the generalist and specialist courts, the options faced by the defendant are functionally the same: adhere to treatment in the community or have the case processed in the usual fashion (which in practice may well mean being convicted and going to jail). At this point, it is important to distinguish between two types of arrangements in which

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Henry Steadman, S. Davidson, and C. Brown, Mental Health Courts: Their Promise and Unanswered Questions. 52 PSYCHIATRIC SERVICES 457 (2000); Patricia Griffin, Henry Steadman, and John Petrila. The Use of Criminal Charges and Sanctions in Mental Health Courts. 53 PSYCHIATRIC SERVICES 1285 (2002); Roger Boothroyd, Norman Poythress, Annette McGaha, and John Petrila. The Broward Mental Health Court: Process, Outcomes and Service Utilization. 26 INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 55 (2003).. 25 Allison Redlich, Henry Steadman, John Monahan, John Petrila, and Patricia Griffin, The Second Generation of Mental Health Courts. PSYCHOLOGY, PUBLIC POLICY, AND LAW (in press); Henry Steadman, Allison Redlich, Patricia Griffin, John Petrila, and John Monahan, From Referral to Disposition: Case Processing in Seven Mental Health Courts. BEHAVIORAL SCIENCES AND THE LAW (in press).


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criminal justice dispositions are linked to treatment. In one category, which we will call ―no agreement‖ cases, the offender plays no role in the decision to link disposition and treatment, and the offender may actually object to treatment participation. The typical example is a probation order in which the court, without any participation of the offender or defense counsel, specifies mental health or substance abuse treatment (possibly including medication adherence) in the list of conditions. Similarly, a parole authority may release a prisoner on parole on various conditions, including mental health or substance abuse treatment, without any discussion with the prisoner. It is well established that requiring mental health counseling is a reasonable condition of probation.26 Whether medication adherence can be ordered (especially over the defendant‘s objection) is a complicated question, depending on the precise terms of the sentencing and parole statutes, on the nature of the offense and its connection to the defendant‘s mental disorder, and still-evolving constitutional principles relating to the right to refuse treatment.27

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For example, Title 18 of the United States Code, § 3563, states ―The court may provide, as further conditions of a sentence of probation…that the defendant … undergo available medical, psychiatric, or psychological treatment.‖ See United States v Stine (675 F.2d 69, 72-73 (3d Cir, 1982) (―The courts may impose on a probationer limitations from which other persons are free, if the limitations are reasonably related to rehabilitation and public safety, the ends of probation… We need not and do not hold that a psychological counseling requirement can never be an infringement of a constitutional right of privacy. We hold only that when psychological counseling is reasonably related to the purposes of probation, its imposition is not unconstitutional.‖); United States v. Wilson, 154 F. 3d 658, 667 (7th Cir. 1998)(Condition requiring defendant to participate in mental health treatment and take any prescribed medications ―was based on individualized assessment of defendant‘s past and present behavior and was not an abuse of discretion.‖) United States v Cooper (171 F.3d 582,587 (8th Cir 1999)(―We have little difficulty upholding the… special condition [of probation] imposed by the district court [that he] undergo mental health counseling and treatment. This contention is without merit. His recent history of major depression, refusal to take anti-depressant medications, and conduct dangerous to himself and others clearly justifies this limited special condition.‖) See also United States v. Parrott, 992 F. 2d 914 (1992) and United States v. Allen, 312 F. 3d 512 (1 st Cir, 2002). The 2003 edition of Federal Sentencing Law and Practice recommends ―Mental Health Program Participation‖ as a special condition of supervised release: ―If the court has reason to believe that the defendant is in need of psychological or psychiatric treatment—a condition requiring that the defendant participate in a mental health program approved by the United States Probation Office‖ (§5D1.3(d)). 27 It is clear that offenders on probation or parole have a ―qualified liberty interest‖ in refusing unwanted antipsychotic medication, see Felce v. Fiedler, 974 F. 2d 1484 (7th Cir. 1992). However, the conditions under which this interest can be subordinated are unclear; the analysis in Felce preceded the Supreme Court‘s most recent decision on the right to refuse anti-psychotic medication, Sell v. United States, 539 U.S. 166 (2003). In United States v Williams, __F3d__ (9th Cir, 2004), the Ninth Circuit ruled that an order directing the defendant ―to take such


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The second category of cases, which involve what we will call ―leveraged agreement,‖ are the ones that interest us here. In these cases, the treatment conditions are specified in an agreement reached between the defendant and the prosecutor (or, in some specialized courts, between the defendant and the judge) or, in the parole context, between the prisoner and the parole board. We will use plea agreements for conditional probation as the prototypical example, and will focus particularly on probation orders that prescribe medication adherence as a condition of probation. The key question in these bargained dispositions is whether the prosecutor‘s proposal is best construed as a ―threat‖ to put the defendant in jail if he or she fails to adhere to treatment in the community, or as an ―offer‖ of treatment in lieu of jail. According to Wertheimer, the prosecutor‘s proposal would be a ―threat‖ if the defendant would be worse off than in his or her baseline position if the defendant does not accept the proposal, whereas it would be an ―offer‖ (expanding choice) if the defendant would be no worse off than in his or her baseline position if the proposal is not accepted. The Legal Baseline. Which of these characterizations is most accurate depends on the court‘s authority in the absence of the defendant‘s agreement. In the ordinary context of a criminal offense, the judge is entitled to impose up to the maximum sentence specified in the criminal code (or in the applicable sentencing guideline) for the crime of which he or she has been convicted (or will in all likelihood be convicted, in the case of pre-plea disposition). If imprisonment were not an available sentencing option under the applicable statute or guideline, the probation order‘s medication requirement would be properly regarded as involuntary (and the ―agreement‖ to accept it would be properly regarded as ―coerced. (As indicated earlier, the court

psychotropic drugs and other medications prescribed for him by physicians treating his mental illness‖ was invalid in the absence of ―medically grounded findings that the court-ordered medication is necessary to accomplish one or more [statutory sentencing factors]…‖ and ―an explicit finding…that the condition ‗involves no greater deprivation


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might nonetheless have the authority to impose the treatment condition, but it would indisputably be regarded as coerced.) However, if incarceration were an available sentencing option, as it is in the usual case, probation conditioned on medication compliance is properly regarded as an ―offer,‖ and the agreement is valid. The agreement‘s validity is clear if the court would have had authority to impose pharmacological treatment as a condition of probation in the absence of an agreement (i.e., over the defendant‘s objection), but we think the agreement is valid even if the court would not otherwise have had the authority to require treatment because the agreement still represents a choice by the defendant between jail and leveraged treatment in the community – a hard choice, perhaps, but not an unconscionable one. Others may disagree.28 Two concerns about the manipulation of the defendant‘s baseline could invalidate the arrangement, however. First, selective arrest or prosecution could create an unfair context for bargaining. Such manipulation could occur in a systematic fashion if the police were more likely to arrest, the prosecutor more likely to charge (or to charge for a more serious offense), or the judge more likely to sentence to jail (or to sentence to jail for a longer period), defendants with mental disorder than defendants without a mental disorder, in order to channel defendants with mental disorder into treatment. These practices are universally decried. The Bazelon Center‘s report on Mental Health Courts (January 2003), for example, states that ―All are concerned about the potential of mental health courts to encourage arrest as a strategy for accessing mental health services that are not otherwise available (p. 1)‖ and that ―The duration of the court‘s supervision

of liberty than is reasonably necessary.‘‖ 28 The distinction drawn in the text between ―no agreement‖ cases in which the treatment is imposed without agreement and ―leveraged agreement‖ cases in which the treatment is mandated pursuant to a valid agreement, is reflected in two cases requiring parolees to take anti-psychotic medication. Compare Felce v. Fiedler, 974 F. 2d 1484 (7th Cir, 1992) (state could not require monthly injections of prolixin by prisoner who was entitled to release on parole after serving 6 ½ years of sentence without satisfying due process criteria and procedures) with Closs v. Weber, 238 F. 3d 1018 (8th Cir, 2001) (state could constitutionally revoke parole for prisoner who had agreed to terms of discretionary parole, including treatment condition).


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of treatment… should never exceed the typical sentence and probationary period for the underlying criminal charge (p 15).‖ Likewise, the Council of State Government‘s Consensus Project notes that ―It is particularly important … that mental illness itself not be used as a reason to detain a defendant in a case where a defendant with no mental illness facing similar charges and with a similar criminal record would likely be released‖ (p. 13). Arresting defendants with mental disorder without lawful justification (or under circumstances which otherwise would not ordinarily trigger an arrest) for the purpose of drawing them into treatment, or over-charging such defendants (as compared with normal practice) to elevate the available sentence and make the treatment option seem more attractive, unfairly manipulates the legal baseline; these practices would makes the defendant‘s ―agreement‖ to adhere to treatment conditions illusory, rendering the eventual ―offer‖ a coercive one.29 The solution to this problem is to train the police, prosecutors, and judges so as to avoid the selective prosecution—even the well-meaning selective prosecution—of defendants with mental disorder.30 The related factor that could invalidate an ―offer‖ of treatment-in-lieu-of-jail is the defendant‘s being uninformed—or even deceived—regarding the terms of the bargained-for agreement. The possible sentence being used as leverage might have been artificially manipulated so as to make the offer of treatment appear more attractive. Even if the defendant has not been selectively arrested or overcharged, the defendant may be under the misimpression

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This example shows again that we are using the term ―coercion‖ to refer to a normative concept, not an empirical one, in this paper. In these cases involving selective arrest and prosecution, the plea agreements eventually reached do not ―feel‖ any less voluntary than they would have in the absence of selective arrest or prosecution. They are nonetheless invalid because the baseline (no arrest or prosecution) was unfairly manipulated. 30 A promising literature on training police, prosecutors, and judges in dealing with mentally ill defendants has emerged in the past decade. Bibliographies are available from the GAINS Center, at http://www.gainsctr.com. This literature is usefully summarized in the excellent report of the Council of State Governments, Criminal


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that, if the judge‘s offer of treatment is refused, the likelihood of his or her being sentenced to jail for the crime charged is higher than it actually is (or that the length of time to be spent in jail is longer than it actually is). For example, a first-offender with mental disorder might be charged with a crime for which the statutory sentence is one to four years, but for which first-offenders are routinely placed on probation. If the prosecutor were to ―high-ball‖ the sentence, such as by saying or implying that the defendant was facing a significant jail term—for the purpose of inducing the defendant to accept the “offer” of treatment—this would negate the conditions of voluntariness. In the usual commercial contractual negotiations, of course, the parties are represented by counsel, one of whose primary roles is to inform his or her client of the actual risks involved in reaching or failing to reach an agreement. Defendants who are made an offer of treatment-or-jail are also represented by counsel. But they may be mis-represented by counsel who, believing that receiving treatment is in their clients‘ best interests, either mislead their clients or fail to correct their erroneous impressions regarding the likely outcome at sentencing. The problem of paternalistic behavior by lawyers who fail to provide ―zealous advocacy‖ on behalf of mentally disordered clients has vexed the area of civil commitment (i.e., mandated hospital treatment) for decades31 and can be expected to affect mandated community treatment. Research on adjudicative competence has described similar tendencies in the representation of mentally disordered defendants.32 The challenge is to train criminal defense lawyers not to allow

Justice/Mental Health Consensus Project (2002), available at www.consensusproject.org 31 Norman G. Poythress, Psychiatric Expertise in Civil Commitment: Training Attorneys to Cope with Expert Testimony, 2 LAW & HUM. BEHAV. 1 (1978). 32 Richard Bonnie, Norman Poythress, Steven Hoge, John Monahan, and Marlene Eisenberg, Decision-Making in Criminal Defense: An Empirical Study of Insanity Pleas and the Impact of Doubted Client Competence. 87 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 48 (1996).


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themselves to become instruments of covert coercive practices in cases involving mentally disordered clients. Leverage: Money People with mental disorder sometimes receive disability benefits in the form of cash payments (e.g., SSI or SSDI). If the disorder is of such a nature that it impairs the person‘s ability to manage his or her money, the Social Security Administration (SSA) can appoint a representative payee to receive the disability checks. Representative payees can assure that the beneficiary‘s essential needs are met by directly paying for rent and food. Any funds remaining after these essential needs are covered can be disbursed by the payee to the beneficiary in the form of ―spending money,‖ to be used at the beneficiary‘s discretion.33 Some representative payees or informal ―money handlers‖—often family members of the person with a mental disorder—may make the disbursement of discretionary funds contingent upon the beneficiary‘s adherence to treatment in the community or avoidance of substance abuse, or both.34 Moreover, patients who fail to adhere to treatment may be told that they will lose their access to funds altogether. For example, the brochure on ―Recipient Responsibilities‖ for representative payee services used by one state agency35 states: You are receiving benefits based on the mental health and physical problems that you have. SSA requires that you be involved in mental health services and work with your

33

Susan Cogswell, Entitlements, Payees, and Coercion, in COERCION AND AGGRESSIVE COMMUNITY TREATMENT. Edited by Dennis D, Monahan J. New York, Plenum Press, 1996. 34

Eric Elbogen, Jeffrey Swanson, and Marvin Swartz, Psychiatric Disability, the Use of Financial Leverage, and Perceived Coercion in Mental Health Services. 2 INTERNATIONAL JOURNAL OF FORENSIC MENTAL HEALTH, 119 (2003); Eric Elbogen, Jeffrey Swanson, Marvin Swartz, and H. Wagner, Characteristics of Third-Party Money Management for Persons with Psychiatric Disabilities. 54 PSYCHIATRIC SERVICES 1136 (2003); Eric Elbogen, Catherine Soriano, Richard Van Dorn, Marvin Swartz, and Jeffrey Swanson, Consumer Views on the Use of Disability Funds to Leverage Treatment Adherence. 56 PSYCHIATRIC SERVICES 45 (2005).


18

program so that you will feel better. If you use your money for alcohol or drugs, you may lose your benefit. According to the recent 5-site survey of the prevalence of mandated community treatment, between 7 and 19 percent of all people receiving treatment for serious mental disorder in the public sector—and up to one-third of all people who have a representative payee or an informal ―money handler‖—have experienced money being used as leverage to keep them in treatment.36 We do not know what proportion of these arrangements are based on ―agreements‖ between the recipient and the representative payee, and what proportion are simply conditions laid down by the payee. Either way, however, whether or not the arrangement is ―coercive‖ depends on the baseline condition. In Wertheimer‘s terms: the representative payee or money handler would be making a ―threat‖ when the beneficiary will be worse off than in his or her baseline position if the beneficiary does not adhere to treatment whereas the payees would be making an ―offer‖ when the beneficiary will be no worse off than in his or her baseline position if the beneficiary does not accept the payee=s proposal. The Legal Baseline. Is the beneficiary with a mental disorder who meets eligibility criteria entitled to the benefits (typically SSI) and also to personally receive whatever funds are remaining after his or her essential needs have been attended to by a duly appointed representative payee, regardless of whether he or she adheres to treatment? If so, the beneficiary‘s relevant baseline is ―it‘s my money,‖ and the payee is issuing a coercive threat by saying the money will be withheld if the recipient is non-adherent, since the beneficiary will be made worse off (i.e., have no spending money, or no money period) if he or she rejects the payee‘s money-for-treatment proposition. 35

Document on file with authors.


19

Or is the beneficiary with a mental disorder entitled to the benefits, and also to personally receive discretionary funds, only in the payee‘s discretion? Does the payee have the discretion to withhold money if it is being spent on alcohol or other drugs or to lay down other ―reasonable conditions‖ designed to protect the welfare of the beneficiary? If so, the beneficiary‘s relevant baseline is ―no money at all,‖ or ―money only under certain conditions.‖ Depending on the nature of the payee‘s authority and the scope of her discretion, the payee‘s proposal may be properly understood as a non-coercive offer, since the beneficiary will be no worse off than in his or her baseline position if the beneficiary rejects the payee=s proposal. In this view, the beneficiary is being made a contractual proposition by the payee: if you accept treatment in the community, you will be given the remainder of your disability benefits to use at your discretion; if you do not accept treatment in the community, the remainder of your disability benefits will be withheld until such time as you accept treatment. Which is the correct view of current law? Surprisingly, we have been unable to locate any statutory or regulatory provisions or cases addressing the legality of a representative payee‘s making the disbursement of funds contingent upon the beneficiary‘s adherence to treatment in the community. The 1996 Report of the Representative Payment Advisory Committee makes no mention of this issue. Neither does the SSA‘s 1999 Representative Payee Program Guide for Organizational Representative Payees. Nor does the 2001 Guide for Representative Payees currently available on the SSA website.37 The statute authorizing the representative payee program (42 U.S.C.§ 405(j) (2001) states, without elaboration, that the benefits should ―serve the interests of the individual‖ and be ―in the best interests of the individual.‖ Neither the statute nor any of the official SSA publications specifically permits, or specifically prohibits, a 36

John Monahan et al, footnote 9, supra.


20

representative payee‘s withholding disability funds as leverage to assure adherence to treatment in the community. Although the Social Security Administration has stated that refusing treatment that is clearly expected to restore working capacity may sometimes be grounds for terminating benefits, 38 it has not clarified the scope of the representative payee‘s authority. The beneficiary‘s legal baseline, therefore, is profoundly ambiguous. Under this circumstance, until Congress or the courts resolve the issue—a prospect that does not appear to be on the horizon—it is an open question whether the representative payee has the legal authority to use money as leverage for treatment adherence. Note also that this ambiguity leaves us uncertain about the payee‘s authority to impose treatment conditions without agreement (―you will receive money only if you adhere to treatment‖) or to negotiate an agreement in the recipient‘s interests (―if you agree to adhere to treatment conditions A and B, I will pay you the money on the following schedule‖). In the paradigm of agreement, we are uncertain whether the latter would be properly characterized as a valid offer (i.e., making funds available that the person is not otherwise entitled to receive, conditional upon adherence to specific treatment conditions) or a coercive threat (i.e., withholding benefits to which the person is otherwise entitled, unless treatment is adhered to). Leverage: Housing To reduce homelessness, the government provides a number of housing options in the

37

http://www.ssa.gov/pubs/10076.html It is clear that a person receiving benefits in relation to a disability based on drug addiction or alcoholism is required to participate in substance abuse treatment as a condition of receiving benefits and may be terminated for failure to do so. See 20 CFR 416.214. The rules with respect to persons receiving benefits based on other mental disorders are more complicated. The Social Security Administration has explicitly stated that treatment refusal by a person with severe mental impairment is not grounds for terminating benefits if the beneficiary is ―clearly unable to understand the consequences of failing to follow prescribed treatment.‖ SSA Policy Section DI 23010.005. It follows, however, that benefits may be terminated for treatment refusal by persons with severe mental impairment if the beneficiary is able to understand the consequences of refusal and the prescribed treatment ―is clearly expected to restore‖ capacity to work. Id. See also Brown v. Bowen, 845 F.2d 1211 (3d Cir, 1988) (man with mental retardation 38


21

community for people with a mental disorder that it does not provide to other citizens. No one questions that housing providers can impose reasonable requirements—such as not disturbing neighbors—on their tenants. The issue is whether the housing provider can impose an additional requirement on tenants with mental disorder: that they adhere to treatment in the community.39 Consider the statement in the 2003 Patient Handbook of the Association for Rehabilitative Housing in New York City40: The Association‘s philosophy is that in order to treat your mental illness, it is important to be in psychiatric treatment... In fact, to be a client at the Association you must be involved in treatment…Please note that the type of program you attend is up to you. But wherever you choose to go, you must see a psychiatrist and take medications as they are prescribed. According to the recent survey of the prevalence of mandated community treatment cited earlier, between 23 and 40 percent of all people receiving treatment for serious mental disorder in the public sector have experienced housing being used as leverage to keep them in treatment.41 Once again, recall Wertheimer‘s formulation of the pivotal question: the housing provider would be making a ―threat‖ when the tenant will be worse off than in his or her baseline position if the tenant does not accept the provider‘s proposal, and the housing provider would be making an ―offer‖ when the tenant will be no worse off than in his or her baseline position if the tenant does not accept the provider=s proposal.

and epilepsy required to adhere to treatment in order to receive benefits). 39 Henry Korman, Diane Engster, and Bonnie Milstein, Housing is a tool of coercion, in COERCION AND AGGRESSIVE COMMUNITY TREATMENT. Edited by Dennis D, Monahan J. New York, Plenum Press, 1996; Allen M: Separate and Unequal: The Struggle of Tenants with Mental Illness to Maintain Housing. Clearinghouse Review 30: 720-739, 1996. 40 41

Document on file with authors. John Monahan et al, footnote 9, supra.


22

The Legal Baseline. Is the tenant (or prospective tenant) with a mental disorder entitled to receive subsidized housing for which he or she qualifies, regardless of treatment adherence? If so, the tenant‘s relevant baseline is ―having adequate shelter,‖ and the provider is issuing a coercive threat, since the tenant will be made worse off (i.e., homeless) if he or she rejects the provider‘s housing-for-treatment proposition. Or is the tenant with a mental disorder only entitled to receive subsidized housing if he or she agrees to adhere to treatment in the community? In this case, the tenant‘s relevant baseline is ―homeless,‖ and the provider is making a non-coercive offer, since the tenant will be no worse off than in his or her baseline position if the tenant rejects the provider=s proposal. In this view, the tenant or prospective tenant is being made a contractual proposition by the housing provider along the following lines: if you accept the offer of treatment in the community, you will be provided with a subsidized apartment; if you reject the offer of treatment in the community, you will not be provided with a subsidized apartment (or will be evicted from such an apartment if you have already been provided with one). The accurate but less-than-satisfactory answer to the legal baseline question regarding housing-as-leverage is: it depends. Most federal housing programs administered by the Department of Housing and Urban Development are prohibited by statute from making tenancy conditional on treatment adherence.42 But at least two programs, Shelter + Care43 and the Supportive Housing Program,44 permit such conditions.45 Consider the provisions of the federal

42

See, e.g., U.S. Department of Housing and Urban Development, Notice H-98-12, ‗‗Use of Section 202 Projects to Support Assisted Living Activities for Frail Elderly and People with Disabilities,‘‘ at p. 10 (―The acceptance of any supportive service by a resident is totally voluntary‖). 43 24 CFR 582. 44 24 CFR 583. 45 See Michael Allen, Waking Rip van Winkle: Why Developments in the Last 20 Years Should Teach the Mental Health System Not to Use Housing as a Tool of Coercion. 21 BEHAVIORAL SCIENCES AND THE LAW 503 (2003).


23

Shelter + Care Program: In addition to standard lease provisions, the occupancy agreement may also… require the participant to take part in the supportive services [including ―mental health and substance abuse treatment‖] provided through the program as a condition of continued occupancy. In ―package deal‖ programs such as Shelter + Care, the tenant or prospective tenant is not legally entitled to say ―I‘ll take the shelter but not the care.‖ Subsidized housing programs administered by state rather than federal agencies take similarly divergent positions.46 The current legal baseline of tenants with a mental disorder in publicly subsidized housing, therefore, implies that making treatment a condition of housing constitutes a coercive threat in some housing programs, but constitutes a contractual offer in others. In the former case, legal action to enforce existing statutes is an appropriate course of action: the tenant has rights to be vindicated. In the latter case, a contractual approach that focuses on negotiation between landlords and tenants would appear the more productive tack. Indeed, it would appear to be the only productive tack: the tenant has few pertinent rights subject to vindication.47 Outpatient Commitment: Unambiguously Coercive There are three types of outpatient commitment.48 The first is a variant of conditional release from a hospital: a patient is discharged on the condition that he or she continues treatment in the community. The second type is an alternative to hospitalization (the less restrictive alternative) for people who meet the legal criteria for involuntary inpatient treatment. The third type of outpatient commitment is a form of early intervention for people who do not currently 46

Id at 512-517.. However, the tenant is entitled to ―reasonable accommodation‖ under the Americans with Disabilities Act and the Fair Housing Act. See Michael Allen, id at 517. 48 Joan Gerbasi, Richard Bonnie, and Renee Binder, Resource Document on Mandatory Outpatient Treatment. 28 JOURNAL OF THE AMERICAN ACADEMY OF PSYCHIATRY AND LAW 127 (2000). 47


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meet the legal criteria for involuntary inpatient hospitalization but who are believed to be at risk of decompensation to the point that they will qualify for involuntary hospitalization if left untreated are ordered to accept treatment in the community.49 According to the survey of the prevalence of mandated community treatment, between 12 and 20 percent of all people receiving treatment for serious mental disorder in the public sector report having been placed on outpatient commitment.50 Although all three types of outpatient commitment are inescapably coercive, there are important differences among them. Traditional conditional discharge comes closest to the ―leverage‖ paradigm being explored in this Essay. Assuming that the patient met the substantive criteria specified in the inpatient commitment statute at the time of commitment (and is still lawfully hospitalized within the temporal limits on the duration of commitment specified in that statute), it is possible to envision a ―negotiation‖ between patient and staff about the conditions of discharge,51 including the non-compliant behaviors that will lead to re-hospitalization. Such patient participation in the discharge planning resembles the ―contract‖ model that we have outlined above, and one might even say that the possibility of a conditional discharge ―expands‖ the patient‘s choices (beyond remaining in the hospital). However, we would not carry the

49

Marvin Swartz, Jeffrey Swanson, Virginia Hiday, Ryan Wagner, Barbara Burns, and Randy Borum, A Randomized Controlled Trial of Outpatient Commitment in North Carolina. 52 PSYCHIATRIC SERVICES 325 (2001); Henry Steadman, K. Gounis, Deborah Dennis, Kim Hopper, Brenda Roche, Marvin Swartz, and Pamela Clark Robbins, Assessing the New York City Involuntary Outpatient Commitment Pilot program. 52 PSYCHIATRIC SERVICES 330 (2001); Jeffrey Swanson, Randy Borum, Marvin Swartz, Virginia Hiday, Ryan Wagner, and Barbara Burns. Can Involuntary Outpatient Commitment Reduce Arrests Among Persons with Severe Mental Illness? 28 CRIMINAL JUSTICE AND BEHAVIOR 156 (2001). 50 John Monahan et al, footnote 9, supra. The question read, ―Sometimes people with mental health, alcohol or drug problems are put on ‗outpatient commitment‘ by a judge at a legal hearing. If you are on outpatient commitment, the judge orders you to receive treatment in the community, whether you want it or not. Are you now on outpatient commitment, or have you ever been on it?‖ 51

Janet Gilboy and J.R. Schmidt, "Voluntary" Hospitalization of the Mentally Ill, 66 NORTHWESTERN U. L. REV. 429 (1971).


25

contract analogy that far: the whole negotiation (if it happens at all) occurs in the context of an involuntary commitment whose coercive force continues until expiration of the commitment order. In the vocabulary of contract, it seems incontrovertible that the patient‘s agreement to comply with the discharge conditions is extracted under duress. Moreover, a patient who no longer needs to be hospitalized is probably legally entitled to discharge (at least on conditions) even if the statutory commitment period has not elapsed. The same analysis applies to ―front-end‖ outpatient commitment of patients who meet the inpatient criteria. Again, one can envision a ―negotiation‖ under which the patient is ―offered‖ the option of outpatient treatment in lieu of (legally authorized) hospitalization subject to the understanding that non-compliance with specified conditions will lead to ―revocation‖ of outpatient status. As before, one could say that this ―offer‖ expands choice since the ―baseline‖ is involuntary hospitalization. However, we reach the same conclusion we reached above: this negotiation (if it happens at all) occurs in the context of the state‘s authority to order involuntary treatment. Rather than being seen as optional ―alternative‖ to hospitalization, outpatient commitment is better understood as a less drastic exercise of coercive authority, and any ―agreement‖ by the patient is illusory because it is elicited under duress. The third variant of outpatient commitment involves no choice at all. In preventive outpatient commitment, the person does not currently meet the statutory criteria for inpatient hospitalization, but rather is predicted to meet those criteria in the future if untreated in the community. In the uses of leverage discussed earlier, the individual‘s options are being expanded—from one option (jail) to two options (jail or treatment in the community), for example. In preventive outpatient commitment, however, the individual‘s options are being constrained: before, the individual had two options (adhere to treatment or do not adhere to


26

treatment in the community); now, the individual has only one option (adhere to treatment in the community). The individual is not being ―offered‖ anything in consideration for adhering to treatment in the community. The contract model does not apply at all. It is interesting to note, however, that the threatened consequence of non-compliance under preventive outpatient commitment statutes is typically rather weak—e.g., being taken into custody for a few hours or at most a few days. The coercive threat has been softened by the legislative refusal to authorize hospitalization as a response to non-compliance.52 Conclusion The policy debate on a given form of mandated community treatment is customarily framed as a clash between state power and individual autonomy or, more specifically, as an effort to force a person with mental disorder to adhere to treatment by threatening to deprive the person of something to which he or she has a ―right‖—e.g., physical liberty, disability benefits or subsidized housing.53 This characterization assumes that the state is essentially compelling the individual to give up one right (the right to refuse treatment)54 in order to preserve their other rights. Invoking the language of rights has produced many landmark achievements in mental

52

Paul Appelbaum, Ambivalence Codified: California's New Outpatient Commitment Statute. 54 PSYCHIATRIC SERVICES 26 (2003). As the Court of Appeals of New York stated in upholding Kendra‘s Law, New York‘s outpatient commitment statute, In re K.L., 806 NE 2d 480 (2004): The restriction on a patient's freedom effected by a court order authorizing assisted outpatient treatment is minimal, inasmuch as the coercive force of the order lies solely in the compulsion generally felt by lawabiding citizens to comply with court directives. For although the Legislature has determined that the existence of such an order and its attendant supervision increases the likelihood of voluntary compliance with necessary treatment, a violation of the order, standing alone, ultimately carries no sanction. Rather, the violation, when coupled with a failure of efforts to solicit the assisted outpatient's compliance, simply triggers heightened scrutiny on the part of the physician, who must then determine whether the patient may be in need of involuntary hospitalization. 53

National Council on Disabilities: From Privileges to Rights: People Labeled with Psychiatric Disabilities Speak for Themselves (2000). Available at http://www.ncd.gov/publications/privileges.html 54

See Gary Melton, John Petrila, Norman Poythress, and Christopher Slobogin, PSYCHOLOGICAL EVALUATIONS FOR


27

health law,55 and provides advocates with access to a rich trove of analogies derived from more established areas of law.56 But as currently applied to the area of mandated community treatment, there are two significant problems with ―rights talk.‖ The first problem is legal. As we have discussed in this Essay, it is often unclear what ―rights‖ are implicated by many forms of mandated community treatment. In some contexts of mandated treatment, the use of leverage does not violate any right, while in others, the rights claim is untested in the courts. Further, even these asserted but untested ―rights‖ are often statutory rather than constitutional in origin, and can be modified or even eliminated by legislative action, just as many federal entitlements ceased to exist when the Welfare Reform Act of 199657 sought to ―end welfare as we know it.‖ And the assertion of a constitutional right against making treatment adherence a condition of avoiding jail or of receiving money or housing has to confront the fact that the doctrine of ―unconstitutional conditions,‖ as Kathleen Sullivan, a leading legal scholar on this topic, famously observed, is ―a mess.‖58 The second problem with ―rights talk‖ in this context is political. To characterize the issue in terms of coercion and the deprivation of ―rights‖ is to frame the policy issue in unqualified, give-no-quarter terms. Rights do not readily succumb to political compromise. The language of coerced treatment tends to lead opponents to stand their ground and draw lines in the sand. Much of the currently stalemated debate on mandated community treatment, we believe,

THE COURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS (2d) (1997), §11.03. 55 Paul Appelbaum, ALMOST A REVOLUTION: MENTAL HEALTH LAW AND THE LIMITS OF CHANGE (1994). 56

See the National Council on Disabilities, footnote 53, supra: Deprivation of human and civil rights cannot be tolerated in a country that was founded on the premise that everyone is created equal. The term ―liberty and justice for all‖ must be underscored and applied for people labeled with psychiatric disabilities. Id at 107.

57

PL 104-193.

58

Kathleen Sullivan, Unconstitutional Conditions, 102 HARVARD LAW REVIEW 1413 (1989).


28

can be traced to the framing of the arguments in unyielding rights-discourse terms. Diatribe often replaces debate. As Mary Ann Glendon stated in Rights Talk: The Impoverishment of Political Discourse (1991): Our rights talk, in its absoluteness, promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common ground…All of these traits promote mere assertion over reason-giving (p.14). We believe that there is a better way to frame the policy debate on mandated community treatment—one that avoids doctrinaire forms of argument as well as transparent euphemisms (e.g., ―assisted outpatient treatment‖59). We think that language derived from the law of contract often yields a more accurate account of the current state of the law governing mandated community treatment, is more likely to be translated into a useful descriptive vocabulary for empirical research, and is more likely to clarify the policy issues at stake than the current ships-in-the night form of argumentation based on putative rights. On the normative side, we have drawn on Alan Wertheimer‘s valuable analysis of coercion to argue that the vocabulary of contract provides a suitable framework for deciding whether and under what circumstances use of mandated treatment expands choice or constrains it. In our analyses of the legal baselines against which the various forms of leverage are implemented, we have shown, at a minimum, that under certain conditions, several forms of mandated treatment are not properly characterized as coercive and are better understood as the product of negotiation and voluntary agreement—assuming that the baseline contingencies have not been manipulated for the very purpose of eliciting the patient‘s ―agreement.‖ Mandated


29

treatment in the criminal justice system pursuant to an otherwise valid plea agreement is illustrative. Some other forms of leverage are more problematic because the legal baseline is ambiguous (e.g., withholding disability benefits) or variable (e.g., tying treatment to housing). We have also emphasized, however, that the setting of the legal baseline is not ultimately determinative of the underlying moral issues—i.e., whether it is fair to use these instruments to induce patient compliance with treatment. Ultimately, then, we hope that this reformulation of this issues will stimulate discussion about the utility of the framework and our own characterization of the interventions. However these conceptual issues are ultimately resolved, we think that the contract paradigm is also valuable because it helps to identify fruitful lines of empirical investigation. For example, it focuses attention on the interactive process of negotiation that typically precedes and accompanies the use of therapeutic mandates and on characteristics of the relationships among service providers, patients and leveraging agencies that implement these agreements. The factors thereby exposed may predict outcomes and may also bear on the fairness of the leveraged arrangements. Finally, we believe that the language of contract draws attention to the similarities between the major instruments of mandated community treatment and other forms of leverage, such as professional licensing 60 and child custody, and it also provides a framework that encompasses both ―formal‖ uses of leverage (e.g., representative payees and public housing providers) and ―informal‖ uses of leverage (e.g., a parent who financially supports and houses an adult child with mental disorder, and who uses that money and housing as leverage to obtain the

59

N.Y. Mental Hygiene Law §9.60 (C). John Monahan, and Richard Bonnie, License as Leverage: Mandating Treatment for Professionals. 3 INTERNATIONAL JOURNAL OF FORENSIC MENTAL HEALTH 131 (2004). 60


30

child‘s treatment adherence). Clearly, the language of coercion and rights has no traction in discussing informal leverage. The legal baseline of an adult child with mental disorder does not entitle him or her to receive financial assistance or housing from a parent. The language of contract is entirely apropos here: parent and child may enter into a mutual understanding that the former‘s money and housing will be exchanged for the latter‘s treatment adherence. To conclude, as we do, that most forms of leverage are best addressed in the language of contract is in no sense to endorse their use. Even though a given form of leverage (such as subsidized housing) may be lawfully conditioned on treatment compliance, it still may be poor public policy. It may make poor policy because as a purely empirical matter it simply doesn‘t ―work‖ at achieving proximal policy goals (i.e., treatment adherence) or more distal ones (e.g., a reduction in violence or homelessness). Or a given use of leverage may make poor policy because, even if it achieves desired outcomes, it does so in a cost-inefficient manner. We argue here only that the time has come to view mandated community treatment through the lens of contract.61 Whether and to what extent the vocabulary of contract displaces or complements the vocabulary or coercion remains to be seen.

61

Paraphrasing Robert Scott and William Stuntz, footnote 13, at 1968.


31 Acknowledgement

We thank the members of the MacArthur Research Network on Mandated Community Treatment, and Eric Elbogen, for their comments on a previous draft of this Essay.