|NARPA NATIONAL ASSOCIATION FOR RIGHTS PROTECTION AND ADVOCACY|
April 1, 1998
Hon. Paul N. Poirier
Vermont State House
115 State Street
Montpelier, Vermont 05602
Dear Representative Poirier,
The National Association for Rights Protection and Advocacy (NARPA) is a mix of attorneys, people with psychiatric histories, mental health professionals and administrators, academics, and non-legal advocates -- with many people in roles that overlap. As the only national advocacy organization unsubsidized by government or corporate funding, it is dedicated to promoting and pursuing those strategies that represent the preferred options of people diagnosed or perceived as mentally disabled. The "fundamental mission of NARPA is to help empower people who have been labeled mentally disabled so that they may learn to independently exercise their rights." NARPA's bylaws require one-third of its Board of Directors to identify themselves as current or former recipients of mental health care.
NARPA engages in education, training, and legal intervention on behalf of the rights of its constituency. It monitors developing trends in mental health law and identifies systemic issues and alternative strategies in mental health service delivery on a national scale. NARPA and its members have submitted amicus briefs in many cases in federal and state courts. From its inception nearly 20 years ago, NARPA membership has included numerous Vermonters who have attended and presented at our conferences. We have been informed by our members about the bill now under consideration and wish to offer the following comments.
As a national organization we are familiar with the current hard sell of biologically oriented psychiatry, the shrinking of human services budgets, and the backlash against the civil rights of people deemed mentally ill. The three are a dangerous combination. In Vermont, like many other states, they have taken the form of an attempt to loosen commitment laws and impose the locked ward technique of forced psychiatric drugging to people living outside institutions.
Vermont and Massachusetts are distinguished by their use of the substituted judgment standard, which was adopted in Vermont pursuant to the consent decree in J.L. v. Miller. It allows for non-emergency use of force following a clear showing that the individual would have made such a choice if competent. To step back from this is to abandon the individual and to start down a long and very slippery slope.
The "best interests" of people deemed mentally ill are almost invariably interpreted to include forced psychiatric drugging, regardless of whether they are determined judicially or administratively. This is hardly surprising, given the deference usually granted to psychiatric expertise and that profession's bias towards and reliance on pharmaceutical interventions. Sadly, the lack of respect for the rights and choices of people with mental disabilities that pervades these determinations is also no surprise. Moreover, it has been repeatedly demonstrated that without choice the prospects of recovery are substantially diminished.
As now crafted, S.103 imposes limitations on Durable Powers of Attorney for health care when they are exercised by people under psychiatric commitment. The bill sets up a unique standard by which the state's goal of deinstitutionalization can override a person's formally and competently expressed choices after a brief (45 day) period of institutional care. The use of (continuing) significant clinical improvement as the criterion for upholding a choice clearly replaces a legal standard with a medical and administrative objective. It also unnecessarily discriminates against a particular class of people with disabilities in a way that appears to violate the Americans with Disabilities Act. Furthermore, the 45 day limit has no correlation to any clinical aspect of mental disability; it appears completely arbitrary.
It is NARPAs position that in medical decisions the expressed wishes of the individual should be upheld -- in or out of psychiatric settings. These wishes may seem fragile in contrast to the collective interests that may mitigate against them: the state government and its concerns with effective administration of mental health services; providers' concerns with professional authority and liability; the organized family groups and their concerns and frustrations about family members getting help or receiving intervention; and the pharmaceutical industry which uses its largesse to encourage enhanced reliance on its product -- all powerful players compared to the person whose liberty and competence are at issue. But a persons' rights in such situations are at the heart of what makes us both citizens and human beings. We urge the state of Vermont and its elected representatives to preserve this tiny but essential spark: the right to a person's own thoughts, feelings, and choices taking precedence within that person's own body and mind. Not only Vermonters but all Americans would be poorer for its passing.
Ron Bassman, Ph.D.
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