Commentary & Analysis: The Draft Act Governing Hospitalization of the Mentally Ill: Its Genesis and Its Legacy

The antecedents of historic documents are sometimes obscure. But the framers of the revised Draft Act Governing Hospitalization of the Mentally Ill of 1952 (1) left no question about the source of their inspiration.

Robert Felix, M.D., the founding director of the National Institute of Mental Health, proclaimed in his foreword to the document in 1952: "The general objectives of the Draft Act were stated in 1869 by Isaac Ray: 'In the first place, law should put no hindrance in the way to the prompt use of those instrumentalities which are regarded as most effectual in promoting the comfort and restoration of the patient. Secondly, it should spare all unnecessary exposure of private troubles, and all unnecessary conflict with popular prejudices. Thirdly, it should protect individuals from wrongful imprisonment. It would be objection enough to any legal provision, that it failed to secure these objects, in the completest possible manner.'"

During the 83 years that followed, however, the advice of Dr. Ray—a founder and early president of the American Psychiatric Association—was often ignored in the statutes and practices that governed mental hospitalization. In the late 1930s, it was estimated that 64 percent of patients were transported to state hospitals by law enforcement personnel, and that 29 percent spent at least some time in jail on the way (2). As work was beginning on the Draft Act in the late 1940s, 23 states lacked any emergency commitment procedures. Mentally ill persons in these jurisdictions who required acute interventions would presumably be detained in jails awaiting a court hearing. Two states required trials by jury before a mentally ill person could be involuntarily committed, and jury trials were optional in an additional 19 states. Six states (Alabama, Florida, Mississippi, Missouri, North Dakota, and Georgia) lacked provisions for voluntary hospitalization; another ten states had only begun to permit voluntary admissions in the previous ten years (3).

In what seemed like confirmation of Isaac Ray's greatest fears, the Group for the Advancement of Psychiatry (3) characterized the situation in 1948 in these terms:

"The worst features of contemporary commitment laws are:

The Draft Act Governing Hospitalization of the Mentally Ill was formulated in response to these and similar concerns. Meant to serve as a model for states to emulate in reforming their mental health laws, the Draft Act endorsed voluntary hospitalization as the favored model for inpatient treatment. The commentary accompanying the act explained: "A fully operating program of voluntary admissions will reduce materially the harmful experiences often associated with compulsory hospitalization and at the same time encourage the mentally ill and their families to obtain care at an early stage, when the promise of recovery is greatest."

If involuntary hospitalization was required, the Draft Act proposed two alternative criteria. The first was that the patient "because of his illness is likely to injure himself or others." The second was that the patient "is in need of care or treatment in a mental hospital, and because of his illness, lacks sufficient insight or capacity to make responsible application therefore." Urgent hospitalization could occur on the certification of two physicians, and in emergency circumstances an application could be made by any person and confirmed by only a single physician. Police officers were authorized to take persons who were likely to injure themselves or others into custody and transport them to a hospital; detaining them in a lockup or jail was strongly discouraged.

Patients committed other than by court order could request a prompt hearing about their discharge. They had a right to counsel and to appear at the hearing, but could waive the latter right if they chose. The court, on finding that patients met commitment criteria, could commit them for a definite period up to six months, or for an indefinite period. Hospital superintendents were required to reexamine patients at least every six months to determine if they needed continued hospitalization.

In lieu of outright discharge, patients could be placed on convalescent status, from which they could be readmitted, without judicial review, when the head of hospital thought it would be in their best interests to do so. Convalescent status could be continued indefinitely. Finally, patients were guaranteed rights to humane care and treatment, communication and visitation, exercise of civil rights—that is, a presumption of competence—and use of mechanical restraints only as required by their medical needs.

Legacy of the Draft Act

The Draft Act represented the high point of a paternalistic orientation toward hospitalization of persons with mental illness. Indefinite commitment could occur solely on medical authorization, unless patients requested judicial review. Criteria were broad; patients "in need of care and treatment" could be hospitalized against their will so long as they lacked the insight or capacity to request admission themselves. Even once they no longer needed to be in the facility, if they were released on convalescent leave the long arm of the hospital superintendent was never far away; they could be recalled whenever it was thought to be in their interest.

On the other hand, the Draft Act also incorporated some of the era's most progressive ideas about patients' rights. At a time when involuntary commitment often meant a presumption of incapacity, with the loss of rights to manage one's property, vote, or marry, the model statute said clearly that patients were to retain these rights unless they were adjudicated incompetent in separate proceedings. The process of admission was placed in medical hands, in preference to allowing the criminal justice system to apprehend and initiate detention of persons with mental illness, with its frequent resort to incarceration in jails, use of handcuffs, and other stigmata of criminal status. Although periodic review of patients' status was left under medical control, patients could request judicial hearings, and they had the right to legal representation and to argue on their own behalf.

In the years after publication of the Draft Act, a number of states adopted it nearly intact, and others were influenced by many of its provisions. Indeed, the front cover of Mental Hospitals in January 1952 proclaimed "Illinois Revises Mental Health Code to Meet Principles of Draft Act."

But the mood of the nation toward the rights of mental patients changed sharply in the decade after the Draft Act appeared. A confluence of new forces was responsible (4). Skepticism about the reality of mental illness grew, fueled by new sociological theories suggesting that deviance was in the eye of the beholder and that categorizing persons who behaved oddly as "sick" or "crazy" was simply a tool of social control.

Doubts were raised as well about the benefits of mental hospitalization, as exposés and books like Erving Goffman's Asylums (5) portrayed hospitals as places that created, rather than cured, patients' symptoms. Moreover, the legal system became sensitive to the trauma inflicted on disempowered groups, often in the guise of benevolence, and developed new theories allowing legal protections to be extended to them.

The result, beginning with the adoption of the Ervin Act in the District of Columbia in 1964 and the Lanterman-Petris-Short Act in California in 1967, was a thorough reorientation of mental health law away from the Draft Act model. The process was accelerated by court decisions, such as the landmark Lessard v. Schmidt ruling (6) in Wisconsin, that found constitutional deficiencies in previous practices. In place of need-for-treatment criteria for commitment, courts and legislatures substituted standards based solely on patients' dangerousness to themselves or others.

Procedures were altered as well. What the Group for the Advancement of Psychiatry had condemned as "identification of mental illness and criminality by similarity of procedures" became the norm. Judicial hearings took place shortly after involuntary hospitalization, periodic rehearings became mandatory, and convalescent leave fell into disuse, as facilities lost the ability to recall discharged patients without a court hearing (4).

Indeed, the rights-oriented approach—so foreign to the medical focus of the Draft Act—became the dominant model for mental health law. By the end of the 1970s, every state in the nation was operating with dangerousness criteria for commitment and a criminalized set of procedures. Moreover, with involuntary psychiatric hospitalization now seen as aimed primarily at prevention of dangerous behavior, the use of involuntary treatment after commitment was also called into question (4). Where, it was asked, did the states get the power to treat committed patients against their will?

The question could never have been raised under a Draft Act model in which commitment was explicitly for the purpose of care and treatment, but it made sense to many when quarantine of dangerous persons seemed to be the major function of the new system. The courts responded to challenges to involuntary treatment in a variety of ways, but in many states the result was either restriction of nonconsenual treatment to patients found incompetent or a requirement for judicial or quasijudicial hearings before it could occur, or both (7).

Psychiatrists soon complained of feeling "belegaled" (8) and of patients' "dying with their rights on" (9). But the process of substituting legal for medical oversight and control of the medical system continued. Congress enacted legislation funding "protection and advocacy" (P&A) agencies in each state, with the power to enter institutions, identify patients' complaints and bring them to administrators or to the courts, and initiate class-action litigation (10).

The trend continues even today, with Congress at this writing mulling over whether to enact legislation restricting the use of seclusion and restraint—which the Draft Act had left to medical judgment—and requiring detailed reporting to the federal government and P&A agencies about when seclusion and restraint are employed (11).

In its day, the Draft Act offered genuine advances in protecting patients' rights that have been blurred by time and overtaken by the trends described above. It is difficult to remember that patients' right to request a judicial hearing, short of filing a writ of habeus corpus, was not always clear, and that their entitlement to legal counsel was not guaranteed in most jurisdictions.

To be sure, many of the provisions of the Draft Act now seem archaic, as even the mental health professions have come to recognize the need for more rigorous procedures where deprivation of liberty is involved. Few people, for example, would argue against rapid, mandatory judicial review of involuntary commitments. The notion that patients could be committed for indefinite periods, with their eventual freedom left in medical hands alone, or that they could be recalled from the community at the whim of a hospital superintendent sounds odd to our ears. But there are also reasons to believe that in paying as much attention as we have to the third of Isaac Ray's desiderata—that patients should be protected against "wrongful imprisonment"—the current structure of oversight may sometimes neglect patients' needs for treatment that is, to quote Ray, "most effectual in promoting [their] comfort and restoration."

It is worth noting one respect in which the Draft Act remains on the cutting edge. As dissatisfaction grew in the 1970s and 1980s with commitment criteria based solely on dangerousness—in the belief that these criteria were excluding from care many people who were suffering, as well as distorting the focus of the mental health system—critics cast about for alternatives. Here the Draft Act's solution of pairing need for treatment with incapacity as the predicate for commitment began to look appealing (12,13). The American Psychiatric Association's model law on civil commitment adopted this approach (14). Although so far only a small number of states have followed suit, this approach remains one of the most viable alternatives to the current dangerousness-oriented system.

The Draft Act's context: American psychiatry from 1951 to 1955

In the early 1950s, American psychiatry teetered between two eras rooted in two distinct philosophies of psychiatric care. The pages of the A.P.A. Mental Hospital Service Bulletin, the precursor to today's Psychiatric Services, bore witness to the transition that was under way. From the 1830s on, psychiatry had been dominated by large institutions, state hospitals housing thousands or even tens of thousands of people, where the majority of patients were treated. In 1951 the census in New York State hospitals alone was 118,529 patients, representing about 20 percent of the total nationwide (15).

These mega-institutions were often largely self-sufficient, producing their own food on farms worked by the patients, and manufacturing furniture and other appurtenances in shops on their grounds. It was little surprise, then, to see the early issues of the Bulletin peppered with notes about new ways to mix poultry feed (16), innovative hayloaders built from salvaged auto parts (17), construction and operation of a pasteurization plant (18), and the economic benefits of feeding garbage to hogs rather than paying for its disposal (19).

If the concerns of hospital superintendents seemed mired in the 19th century, so did many approaches to treatment. Articles reported the use of fever therapy and histamine treatment of psychosis (20), along with malaria treatment (21) and the intravenous injection of ether, which was reported to be as effective as electroshock therapy for affective psychoses. ("Each treatment lasts from 2 1/2 to 3 hours and is administered daily for 10 to 27 days, depending on the needs of the patient" [22].)

Innovations in patient care included allowing patients to wear their own clothing in place of pajamas and "convalescent suits" (23) and to eat with a full complement of silverware. ("Formerly, the disturbed patients had been allowed only dessert spoons even if steak or pork chops were on the menu" [24]). Outbreaks of typhoid remained a concern (25). And America's tawdry history of racial discrimination lived on in places like Crownsville State Hospital, Maryland's only facility for "colored" patients, which boasted of its success in overcoming "doubts and opposition…from many quarters" when it added "twenty-one colored workers" to its previously all white staff (26).

Research on mental disorders was not ignored. The New Hampshire State Hospital proudly announced its cooperation with a study conducted by the Gravity Research Foundation of the possible effects of moon phases on mental patients (27).

Slowly, however, American psychiatry was pushing these anachronistic concerns into the background as new models of care were being propagated. Experiences during World War II had taught a younger generation of psychiatrists about the importance of social factors—for example, the stress of combat—in precipitating mental disorders. Based on their experiences at the front, these new leaders of psychiatry concluded that treatment and swift reintegration of patients into their social milieu maximized the rate of recovery (20). Consonant with these ideas, interest grew in community-based treatment that avoided hospitalization altogether, or if inpatient treatment was absolutely necessary, in substituting short-term stays in general hospital units for prolonged hospitalization in large state facilities.

Even the state hospitals, which still dominated psychiatric treatment, were integrating some of the new ideas. In England, Maxwell Jones (28) popularized the idea of the therapeutic community, which recruited patients as active participants in fashioning and maintaining the treatment milieu. His ideas were soon adopted in this country. Hospitals began to increase staff-patient ratios to facilitate the new emphasis on milieu therapy (29). Wards were unlocked for the first time in the history of most state hospitals, and staff were retrained to interact with patients and to encourage their involvement in recreational and other pursuits. The goal became to move patients toward eventual discharge to the community.

Beginning in 1953, Mental Hospitals, the name assumed by the former A.P.A. Mental Hospital Service Bulletin in late 1951, started to reflect these changes. "Total push therapy" was developed to mobilize patients for the projected return to life in the outside world (30), and hospitals began to run "discharge groups" for those closest to reintegration (31).

The new models could not be implemented by psychiatrists alone. Psychologists, social workers, occupational and recreational therapists, and other ward personnel assumed new importance as members of the "psychiatric team" (32). For patients who were making the transition to community living, state hospitals developed their own outpatient clinics (33) and halfway houses (34), to ease patients' adjustment to the community and to support them outside the hospital.

The developments in the early 1950s laid the groundwork for the still more radical reforms in the second half of the decade. "Total push" approaches evolved into an overt commitment to deinstitutionalization, facilitated immeasurably by the introduction of chlorpromazine, the first effective antipsychotic drug. Those first state-hospital-organized outpatient clinics presaged the coming dominance in the 1960s and 1970s of the community mental health movement, which was given life by the passage of the Community Mental Health Centers Act of 1963. Although both deinstitutionalization and community mental health would be disappointing in many ways, particularly in their neglect of patients with chronic mental illnesses, their idealistic goals reflected the hopes of the first decade of the postwar era.

Seen in the context of its time, the Draft Act Governing Hospitalization of the Mentally Ill appears in a new light. Far from merely hearkening to the principles laid down by Isaac Ray in the early years of institutional dominance of American psychiatry, it actively reflected and promoted the optimistic ethos of psychiatry that was prevalent during the Truman administration. The Draft Act's emphasis on medical initiation of hospitalization was intended to promote the rapid treatment that had seemed to work so well in World War II in the Army hospitals located just behind the front lines. The importance of voluntary hospitalization lay in the likelihood that willing patients would be more active participants in their own care. The preservation of patients' legal capacity to manage their affairs made reintegration into the community easier, as did the avoidance of stigmatizing contact with the criminal justice system and exposure of patients' conditions at public hearings.

If we are wiser today about the need for more formal protection of patients' liberty interests than was the case in 1952, it is a wisdom tinged with regret. How nice it would be to be able to share the optimism of the architects of the Draft Act and their contemporaries in the mental health and legal professions about the new models of care looming on the horizon and the benefits they would bring to patients with mental disorders.

Dr. Appelbaum is A. F. Zeleznik professor and chair of the department of psychiatry at the University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, Massachusetts 01655 (e-mail, [email protected]). He is also editor of the journal's Law & Psychiatry column.