Mental Health Law Needs a Family Bill of Rights

Last month, The Hastings Center for Bioethics released an essay calling for a Family Bill of Rights for the Relatives of Patients with Serious Mental Illness. Their thinking illustrates today’s growing recognition that dogmatic defenses of patient autonomy above all may do more harm than good when strictly applied to individuals with mental illness.

Using the federal Crime Victim’s Rights Act as a model, the Hastings Center for Bioethics proposal would allow “a limited but meaningful role for families in legal determinations for certain patients with severe mental illness.” It puts forth three essential concepts, all necessary based on my decades of experience as a family-focused mental health attorney:

• The right to be aware: With the exception of family members with a history of domestic violence, laws should require psychiatric hospitals to notify close relatives when individuals are involuntarily committed.
• The right to be present: Unless a court determines that their presence would create a specific risk of harm, close relatives should be permitted to attend commitment and treatment legal hearings.
• The right to be heard: To help courts and clinicians make better decisions with regard to involuntary detention or treatment, relatives should have the right to share information with the courts about the patient’s history, functioning outside of clinical care, adherence to prior treatment, and capacity to manage safely outside structured care.

These basic concepts require some specifications, as noted below. But overall, they are all necessary, overdue, and common sense, given that the nature of mental illness often limits a person’s insight and judgment. Despite this medical fact, the law gives priority to patient autonomy. It defers to those who wish to refrain from informing or consulting with their family members, even if a serious mental health condition has stripped them of their ability to understand what’s happening around them and/or make decisions in their best interest.

This represents a serious and often detrimental oversight given that family members overwhelmingly provide key information, support, and stability, which are critical in helping struggling individuals begin down the road to mental health recovery. Without a functioning U.S. social safety net, close relatives are often the only barrier between a life of cycling through hospitals, prisons, and the streets, which is the tragic reality of many with serious mental health issues.

Supplemental Suggestions for the Family Bill of Rights

Of course, mental health law must guard against any return to the forced hospitalization of years past. To that end, and to further empower family members who have loved ones’ best interests at heart, I would offer a few supplemental suggestions for each of the three concepts outlined in the Bill of Rights.

First, exclusions to “The right to be aware” should extend to those small number of families with nefarious intent, not just those with a history of domestic violence. In addition, I would expand a family’s “Right to be present” such that it gives relatives advance notice of legal hearings and also defers to patients who object to their families being present, as is the law in New York State. Finally, I would specify that “The right to be heard” should extend beyond the court to treatment teams, allowing for an exchange of information with families.

Further strengthening these concepts so they best protect both patients and families will further convince policymakers and citizens that real change is needed. Our system cannot provide meaningful help to highly vulnerable individuals with serious mental health issues if it insists on keeping their relatives, those who love them and want the best for them, in the dark.

There is no need to perpetuate the heartbreak of family members who remain powerless to help sons, daughters, siblings, parents—individuals who are often unable to help themselves due to a serious mental health diagnosis. A Family Bill of Rights would go a long way to addressing this longstanding issue, for the benefit of individuals, institutions like hospitals and jails, and the public at large.