Abstract

In the May, 1960, issue of the American Bar Association Journal (vol. 499), Morton Birnbaum, a lawyer and physician, argued for a legal right to psychiatric treatment of the involuntarily committed mentally ill person. In the 18 years since his article appeared,, there have been several key court cases in which this concept of a right to psychiatric treatment has figured prominently and decisively. It is important to note that the language of the decisions have had at least an indirect effect in the recently enacted mental Hygiene Law of the State of New York. While I shall not seek to establish the historical thesis that Birnbaum’s article has been efficacious in bringing about both these court decisions and changes in statutory laws, I do want to examine Birnbaum’s article and some of the opinions for three cases: Wyatt v. Stickney (1972), Wyatt v. Aderholt (1974), and O’Connor v. Donaldson (422 US 563, 1975), in an effort to understand both the significance of these changes in our laws and the underlying philosophical and ethical notions of which they are an expression. Birnbaum observed that the notable feature of the legal situation at the time was that there had not been recognized a constitutional requirement that one who had been institutionalized for mental illness according to due process must receive treatment. Birnbaum argued that the effects of an omission of such a requirement to treat were that mental institutions typically offered only custodial care, that patients who were held only under custodial care typically did not improve, and that the result was that involuntary incarceration in a mental institution was, at least from the point of view of the patient, functionally no different than would be imprisonment for an unspecified period of time. Birnbaum argued for a recognition and enforcement in the courts of the right to treatment “...as a necessary and overdue development of our present concept of due process of law,” i.e., as required by the 14th Amendment to the U.S..