The Murphy Bill: Ethical Considerations for the State of Mental Health Care and its Consumers

By Morgan Shields

Due to reported links between high-profile shooting incidents and mental illness, there has been an increased interest in mental health care. The most recent mental health policy initiative is the Helping Families in Mental Health Crisis Act of 2013 (HR3717), authored by Congressman Tim Murphy. The Murphy Bill is the most ambitious attempt to transform our mental health care systems in decades, and its primary goal is to provide treatment to individuals before they reach a point of crisis.

This Bill has great intentions and indeed attempts to address gaps in current mental health care. However, it seems to be driven by fear, and is constructed to persuade the public that this bill will protect them from violence. Rather than provide the kind of high quality care that would reduce risks to both service users and the general public, this bill would impose treatments that are not reliably effective and are possibly harmful. Moreover, this bill ignores the substantial input that has been offered by those it would affect, and infringes upon their constitutional rights (Knopf, 2014). When we consider the current state of our system and the United States’ history of mental health care provision, it is crucial that we think through such impactful policies more critically.

Background on Mental Health Care in the United States
During the early and middle 20th century, long-term stay psychiatric care hospitals were the primary venues for mental health care. Looking back, they are now remembered as notorious for how they treated patients, often performing toxic experiments on helpless people and violating basic human rights. In the 1970s, America went through a period of deinstitutionalization, during which long-term stay hospitals were closed and greater demands for expanded community mental health care were advocated for. Though ethical reasons played a role, some have argued that the closing of hospitals was largely due to the introduction of the anti-psychotic Chlorpromazine, with the thought that it enabled individuals to better function in society.

Reviews of the literature suggest that Thorazine was not actually effective, and in fact, induced horrific side effects like tardive and spontaneous dyskinesia, which diminished both functionality and quality of life in the long-term (Whitaker, 2005). In this regard, Thorazine did not enable the majority of its users to participate in society in a meaningful way, despite its ubiquitous endorsement as an effective means of treatment.

Some argue that the more likely precipitator of deinstitutionalization was Medicare disability payments. Introduced in 1965 and expanded in 1973 to cover persons with disabilities, Medicare provided financial support to qualified beneficiaries, reducing consumers’ need for long-term stay facilities (Master & Taniguchi, 1996). In that way, Medicare disability provided a way for individuals to survive without reliance upon institutionalized care. Taken together, both Medicare and ethical concerns regarding conditions of long-term stay hospitals were meaningful drivers behind the development of community mental health care services.

In order to respond to emergency situations, however, acute psychiatric care units became more prevalent in wards of general hospitals. The length of a typical stay in such places currently ranges from three to ten days, however there is great discrepancy between wards in regards to the lived experiences of service users, and arguably great depersonalization of care within wards. Such discrepancies and depersonalization can be explained by various factors, including organizational aspects (such as the occupational climate) (Aarons & Sawitzky, 2006), organizational culture (Henderson et al., 2014), open versus closed wards (Jungfer et al., 2014), restraint and seclusion norms (Wallsten & Lindström , 2006), sufficient staffing and ward policies (Janssen et al., 2012), ward aesthetics (Madan et al., 2014) and the primary focus on “stabilizing” patients (usually with pharmacological approaches) rather than also providing a foundation for therapeutic treatment and recovery.

For various reasons, the effectiveness and regulatory state of these acute psychiatric facilities have gone largely unaddressed. Pharmacological and physical restraint and seclusion practices are intended for extreme situations; however, there is little external regulatory oversight (Huckshorn, 2006). While some wards take a conservative approach to restraint and seclusion, there are wards that medicate patients as a means for disciplining non-threatening actions such as cursing or speaking loudly (Mohr et al., 2003), and there are some wards that physically seclude patients for such behaviors. The risks involved in restraint and seclusion tactics are not to be taken lightly, as their use puts patients at risk for injury and even death (Paterson et al., 2003)

The Joint Commission (TJC; formally the Joint Commission on Accreditation of Healthcare Organizations) is the national regulatory body in charge of monitoring the use of restraint and seclusion. However, such monitoring can hardly be called monitoring since inspection occurs only every few years, and the TJC preannounces site visits at least 30 days in advance without disclosing the date of inspection. Therefore, day-to-day oversight rests with the leadership of each ward, and adherence to critical protocols is ultimately in the hands of staff workers. Developing training programs to improve occupational cultures and practices is as important as making sure there is an active national regulatory body.

The Murphy Bill
If passed, the Murphy Bill would give providers of mental health care increased power to initiate court-ordering processes for involuntary psychiatric care treatment by eliminating the need that an individual be a threat to him/herself or others. In addition, the Murphy Bill would loosen the Health Information Portability and Accountability Act (HIPAA), allowing physicians to share patient information with loved ones in an event of an emergency. “Emergency,” though, is not clearly defined, nor is the definition of “loved ones.” Providers would be able to declare an emergency when there is no threat to the patient or others (the current primary evaluation criterion). The lack of clarity around the terms “emergency” and “loved ones” threatens patients’ right to privacy, and is a potential risk to the rapport between patients and providers that could result in more distrusting and reticent interactions between patients and providers.

The Murphy Bill also loosens criteria for Assisted Outpatient Treatment (AOT). AOT is a court-ordered outpatient treatment program (including medication), which currently requires the service-user to have a history of treatment noncompliance and “severe” mental illness. Failure to comply with AOT usually results in involuntary admittance to inpatient psychiatric facilities. Currently, only five states do not have AOT (i.e., Connecticut, Maryland, Massachusetts, New Mexico and Tennessee). While there is value in community mental health care, the research cited by the Murphy Bill is not strong enough to warrant a potential stripping of constitutional rights and patient agency. In fact, the literature indicates that there is no evidence that compulsory community treatment works (Rugkåsa et al., 2014; Burns & Dawson, 2009). Most importantly, such mandates raise serious questions regarding ethics when we consider the types of treatments that might become compulsory (Knopf, 2014). When solely evaluating the pharmacological side of treatment, both antipsychotics and antidepressants have been shown to have deleterious consequences both physically and psychologically.

Although these drugs may be beneficial to a select number of consumers and in select contexts (Whitaker, 2005) and the media tends to champion these drugs as a necessary component to the treatment repertoire, it is not ethical to mandate the consumption of these pharmaceuticals when, knowing the risks, there is a lack of agreement on which risks are worth taking.

Most importantly, recent research shows that long-term outcomes are negatively correlated with use of the very medications that are most commonly used in forced treatment settings. Antipsychotics have been associated, in the longest prospective study of antipsychotic medications yet done, with reduced real-world functioning and a failure to reduce symptomatology once outcomes are considered past the two- to four-year mark (Harrow & Jobe, 2007). This reduction in outcomes has similarly been shown by recent research to be causally related to antipsychotic use, utilizing a randomized control design (Wunderink et al., 2013). Meanwhile, there are non-coercive psychosocial approaches, should Rep. Murphy choose to attend to them, that show positive outcomes that put the approaches employed in the rest of the Western world to shame (Seikkula & Olson, 2003).

Thomas Insel, the director of the National Institute of Mental Health, has acknowledged that these data indicate that “antipsychotics may worsen prospects for recovery” over the long term, and are also not effective in the context of prevention (Heinssen & Insel, 2014). Even one of early intervention’s primary advocates, Patrick McGorry, has reversed course and stated amid concerns that early intervention leads to over-diagnosis and overmedication. Moreover, compulsory treatment has itself been shown to lead to overuse on a scope far beyond its intended purposes. More peripheral to these concerns, how can we predict who is likely to recover on their own and who is likely to end up cycling through the judicial system and homelessness? Would such mandates perhaps create system-dependent individuals who would have otherwise developed skills for resiliency? Would mandates cultivate distrust and feelings of alienation? Moreover, would those who would otherwise voluntarily seek treatment find themselves in a resource-depleted market (Allen & Smith, 2001)?

There is a lack of mainstream academic, professional, and non-professional discourse regarding the experiences and oversight of both hospital and community psychiatric care. It is disconcerting that our policy makers are proposing legislation which would perhaps further strip the rights of mental health patients, rather than focus on ways to improve regulation and quality of care. The Murphy Bill neglects patients — a critical and, arguably, the most important stakeholder. Consumers of psychiatric care should be at the forefront of this conversation; intimately involved in the research and creation of programs and policies. Though the Murphy Bill would create an advisory committee comprised of law enforcement officials, representation by service-users themselves is not mentioned. While it appears clear that we must reform our fragmented mental health care systems, our policy efforts and mainstream discussions are being filtered through stigmatized and stigmatizing lenses, and are thus misguided on what aspects need reforming and who we should be listening to. This bill would re-direct us back to the mistakes of the early twentieth century instead of moving us in a progressive, evidence-based direction.

Acknowledgement: The author is grateful for Kermit Cole’s helpful feedback.

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