Beyond The Adversarial Models For Mental Health And Incapacity

I'm litigating an adult guardianship case. It isn't the first time I've done one. As a general rule, there is, at least, a lawyer for the person asking for a guardianship, a court appointed visitor (social work who sees what's going on), a court appointed lawyer for the person upon whom a guardian is to be imposed, and a court appointed guardian ad litem for the person to have a guardian impose, in addition to a judge and a judge's division clerk involved. A physician's letter from none of those people is preferred. There is an emergency guardianship option, but the usual process takes about two months. Sometimes more lawyers are involved if there are disputes over who should be appointed. Sometimes, adult protective services is involved.

On one hand, the concern that the process not put an adult in a subordinated position with reduced autonomy rights without adequate due process is legitimate. On the other hand, the process puts a lot of barriers in the way of getting help and intervention to people who, by definition, aren't able to reasonably manage their own affairs and are highly vulnerable to manipulation in any formal process. We put a lot of highly paid professionals in place to check and balance each other, instead of placing greater trust into fewer people at a lower cost. I have to think that this isn't the optimal system. We should have a system that is more pro-active and doesn't pose quite such high barriers to intervention, perhaps with more pro-active follow up and supervision of fiduciaries that extends beyond a paper record.

The thing is that, whether or not they get it, lots of people, maybe half or more, are going to spend some time in their lives when they need, or would benefit from, transitioning to having someone who can make decisions for them. An adversarial model for securing this situation, and a placing a premium on autonomy, which makes sense for most of one's adult life, even in times of physical illness, isn't optimal for lots of people at the end of their lives.

Mental health care, likewise, really ought to be more pro-active. And, the assumptions of the physical health care system, which is oriented towards a "cure" of temporary illnesses and injuries, really isn't appropriate for a large share of mental health care conditions which are congenital or at least permanent. Symptom management is the concern, not a "cure". The push for mental and physical health care parity may have been a good transitional way to leverage more insurance coverage and access to mental health care, but the truth is that they are fairly disjoint and efficiently providing each involves different professionals. The privacy concerns are different. The kind of treatment setting that is needed is different. We should have systems in place to pro-actively intervene in the face of predictable crisis situations.