Psychiatry in Law/Law in Psychiatry

Russian President Vladimir Putin’s self-confessed favorite film is One Flew Over the Cuckoo’s Nest,the cinematic rendition of Ken Kesey’s book, starring Jack Nicholson as the recalcitrant and ultimately lobotomized McMurphy. This and dozens of other choice tidbits (who would not prize to know this one?) fill a fair portion of the text and footnote pages of Ralph Slovenko’s new, two-volume, Psychiatry in Law/Law in Psychiatry. That these tidbits are a dominant feature suggests there is a playfulness to the book, which some may see as triviality. But one could not be more wrong. Slovenko’s playfulness, rather, is a mark of his breadth and sophistication, his casual erudition, and the lightly carried expertise he has in mental health law—a subject he has taught and written on for four decades running.

Many of Slovenko’s tidbits—the allusions to popular culture and events as much as the more formally relevant references to literature, linguistics, history, and religion—help convey a message that is not only important but in some cases also quite controversial. Psychiatry in Law/Law in Psychiatry contains its share and more of politically incorrect observations and conclusions, which may be among the reasons its author is not always counted among the field’s giants by his legal peers (he is better appreciated among mental health practitioners and scholars), his prodigious record, experience, and intellectual gifts notwithstanding.

This political independence, shall we say, also happens to be among the reasons I especially value the book and recommend it highly to readers who study or practice psychiatry, law, or any of its combinations as well as to others—lay or professional—wishing to be informed comprehensively and insightfully of a subject that has an inherent fascination for many. Slovenko’s political incorrectness is no mere willful contrariness; it is politically incorrect with a point, often a powerful point missed by those who propagate the prevailing wisdom, if one will permit a willful misuse of the word.

Take the Putin reference; it is not intended as a compliment to Kesey, the filmmakers, or anyone else (and there are many, some in positions of power and influence) who may think the Cuckoo’s Nest fable represents the psychiatric reality in the United States of the 1960s when the book was published (the film was made in 1975), much less the current reality. Slovenko’s point is that the President of Russia knows only the old Soviet reality, and that this is why he likes the film so much, why it speaks to him like no other Hollywood or Hollywood-like production. This is an excuse not available to Jerome Shestack, for example, who in 1973 as chairman of the American Bar Association’s Commission on the Mentally Disabled analogized the threat of civil commitment in this country to the Soviet Union’s use of psychiatry for political and social control. Nor was or is it available to the many others in the antipsychiatry movement, psychiatrists not excluded, who helped rewrite this country’s commitment laws as if this were the Soviet Union—a legal misapprehension from which we suffer still. As Slovenko sees it, the reformers in the United States were guilty of a “perspective fallacy.” In mistaking the fact that psychiatry in the Soviet Union was used for furthering the repressive essence of the regime (i.e., as one among many means to quash dissent) for dissent-quashing as an inherent feature of psychiatry everywhere, they looked, as it were, “through the wrong end of the telescope.” To the extent that these misguided (is it unfair to say Hollywood-inspired?) mental health law reforms and reformers are still in place today, as many are, this is not a politically popular message.

Psychiatry in Law/Law in Psychiatry contains countless similarly trenchant observations. One does not have to agree with each and every one of them. The reward in reading the book lies in knowing one is in the hands of a boundlessly informed and original thinker on the subject—an expert with little tolerance for the intellectual pabulum that is so often spoon-fed to students in psychiatry and law classes and to participants in similarly focused conferences around the United States.

The range of the publication’s coverage is wide, with a divide in subject matter that corresponds to its somewhat cumbersome, but pointed, title. Volume 1, Psychiatry in Law, deals with the different ways in which psychiatric concepts and experts testifying to these concepts have been recruited by the law, so to speak, to help make legal decisions. This infusion of psychiatry into law extends to both the criminal and civil realms. In criminal law, psychiatry has been asked to speak to the issues of accountability (insanity and diminished capacity), competency to stand trial, and related “present fitness” concerns. Volume 1 has a chapter on each of these issues as well as on such differently ordered categories as juvenile justice, alcoholism and drug addiction, the death penalty, and the right of the accused to psychiatric assistance. In the civil law arena, the psychiatric contribution is sought in such matters as the measurement of emotional damages, including testimony on posttraumatic stress disorder, and the capacity of those with alleged mental impairments to contract, to write a will, to have parental and child custody rights, and to be legally liable for their tortuous actions. There is a chapter on each of these subjects. Volume 1 also contains two chapters on sexual deviation: one on the criminal/civil hybrid of sex offender legislation and one on homosexuality (“From Condemnation to Celebration”). Finally, there are three chapters on psychiatric expert qualification issues, four on evidentiary matters, including confidentiality, and a delightful prologue on what Slovenko calls the “sporting theory of justice” that characterizes—for good or ill—the way we do law in the United States.

By contrast, Law in Psychiatry, volume 2, is about the way the law seeks to regulate the practice and practices of psychiatry—i.e., the law’s infusion into psychiatry. It is divided into two sections, the first on hospitalization of the mentally ill, analyzing the laws that control psychiatric commitment and accord patients a legal right to treatment as well as the countervailing right to refuse it. Part 2 is on psychiatric malpractice and consists of 10 chapters ranging from an overview of the concept to specific occurrences that may give rise to malpractice lawsuits (patient suicide, failure to treat, boundary violations, and breach of confidentiality) to tactical issues (“Admission or Apology in Liability Prevention”) and the extension of liability to parties other than the “wronged” patient.

Psychiatry in Law/Law in Psychiatry thus covers the waterfront, as they say. It is a book that anyone serious about law and psychiatry should have. Despite its two-volume length, it should be read from cover to cover, which can be done easily over the course of a few weeks. There is a wealth of intellectual nourishment here, presented in as appealing a fashion as one can find in the generally not so appealing cafeteria of academic writing. Slovenko’s direct style, his humor, his irreverence, and his unpretentious intellectualism, as displayed by his running string of contemporary and historical allusions, make accessible and digestible what otherwise, given its ample complexity, could easily be an appetite killer. This is that rare and all too precious a commodity—a work on an inherently difficult topic, treated with corresponding breadth and depth, but nonetheless a total pleasure to read.