My Father's Advocacy for a Right to Treatment
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REFLECTIONS My Father’s Advocacy for a Right to Treatment Rebecca Birnbaum, MD J Am Acad Psychiatry Law 38:115–23, 2010 My father, Dr. Morton Birnbaum (may his memory Always for the Underdog be a blessing), unfortunately passed away in Novem- I suppose that my father’s struggle on behalf of the ber of 2005, but it seems like just yesterday to my five mentally ill was born of his deep-seated sense of com- siblings and me. I was in the middle of medical passion for the disenfranchised. As a child growing school training at the time. Toward the end of my up in an indigent Yiddish-speaking immigrant fam- medical school tenure, with the help of some mem- ily in Brooklyn, he experienced disadvantage first- bers of the psychiatry faculty, I began to read through hand as his parents struggled to make ends meet. His my father’s law and psychiatry articles, detailing his father, my grandfather, worked as a chicken plucker life-long advocacy on behalf of the mentally ill. on Coney Island Avenue, and his mother, my grand- I had not read his articles previously, since I had mother, sewed wherever she could find work, some- always relied on him for a steady stream of informa- times in clothing factories. tion. As I found myself gravitating toward psychiatry My father dropped out of high school before re- in my own clinical work, and now, at the outset of turning to Erasmus Hall night high school, gradu- my psychiatry residency training, I felt compelled to ated from Columbia College, and served in the U.S. review his articles more thoroughly. Navy. He earned a law degree from Columbia Uni- I began this undertaking, not only as a gesture of versity and later a medical degree from New York my own healing and remembering, but also because I Medical College, working odd jobs throughout to wanted to shift his work in my mind from hearsay finance his way. He was the first in his family to and childhood recollections to a more mature and attain such advanced degrees. germane understanding. His stories seemed like folk- My father established himself as a medical inter- lore to me growing up, but they are now becoming a nist, in the heart of Bedford-Stuyvesant, Brooklyn, reality for me in my daily work with the mentally ill. serving the medical needs of the indigent poor of the Given the nature of his efforts on the right to treat- neighborhood, and so he reserved his pro bono law ment, I thought that this exercise of reviewing his work for late nights and weekends. He thrived on work would be a valuable retrospective to share with crusading for a worthy cause and challenging the the forensic psychiatry community as well. status quo, and always had a sense of humor and defiance about him. In 1955, in his first lawsuit, he sued the Good Humor Corporation for overcharging the public for orange juice and I-stix, described as a Dr. Birnbaum is Psychiatry Resident, The Johns Hopkins Hospital, frozen fruit confection. He said that he was repre- Baltimore, MD. Address correspondence to: Rebecca Birnbaum, MD, senting the wishes of more than eight million Department of Psychiatry and Behavioral Sciences, The Johns Hop- kins Hospital, 600 North Wolfe Street/Meyer 113, Baltimore, MD citizens. 21287-7381. E-mail: [email protected]. As a postdoctoral fellow in a Social Medicine pro- Disclosures of financial or other potential conflicts of interest: None. gram at Harvard University in the late 1950s, he Volume 38, Number 1, 2010 115 Right to Treatment Advocacy developed his legal concept of the right to treatment the kitchen table. He would calm himself down af- while thinking about catastrophic illness. He honed terward by a late night walk around our Brooklyn in on state mental hospitals, as he recognized an area block, inviting my siblings and me to walk with him where improvement in care and treatment was and the dog, so that we could help him think out needed. He delightfully recalled to me that he had loud. If we walked for a particularly long time, we had a lot of time to think that year, like Einstein in would make it to the Kings Highway subway station, the patent office. where he relished a glass of stale seltzer that he pur- chased from the fountain for 75 cents and a chat with Early Memories the owner of the newsstand about the world’s many The bulk of my father’s right-to-treatment litiga- problems. tion battles were waged before my birth, but I was My father spoke incessantly about the troubles of privy to his endless stories and recollections while the mentally ill, remarkably and admirably. As his growing up. He spoke about his court cases with daughter, I heard his recurrent refrain, whether on a nostalgia, and he longed for the next big battle. As a short trip to the grocery store or a longer car ride. In child, I didn’t understand exactly what battle was fact, he really could not last for more than a few short being fought, but I knew that there was an important hours without raising the issues of the plight of the struggle brewing, as much within the courtrooms as mentally ill. This was his passion, a raison d’etre. within my father. He had a small office in our house in Brooklyn Early Resistance to the Right that was littered with medical and law journals and to Treatment newspaper clippings, in which he stacked countless The idea that the mentally ill should have a con- boxes. To this day, I am not sure how he fit so many stitutional right to adequate medical treatment was cardboard legal boxes in just one small room. He initially introduced by my father in an article pub- used red ink to encircle the injustices that he would lished in 1960 by the American Bar Association.1 It next tackle. The same red ink stained his suits and, is noteworthy that my father’s legal advocacy cam- especially, the pockets of his white coats. paign on behalf of the mentally ill began with much He was a dreamer and a fighter, and most of all he resistance and little acclaim. In fact, over the course expected rejection along the way. “The mentally ill of two years, 50 different publications refused to invite rejection,” he was fond of saying, and that publish his original article. Finally in 1960, he per- extended to his work on their behalf. He fancied suaded the editors of the ABA Journal to publish it. himself a Don Quixote, tilting at windmills. In the now landmark article, my father advocated Growing up, I often noticed that my father for the recognition of a constitutional right to ade- seemed discouraged and isolated. Sometimes in frus- quate treatment, arguing that the involuntarily com- tration he would toss his boxes of legal papers in the mitted mentally ill were prisoners in state psychiatric den and then as the stacks of yellow legal pad papers hospitals, were not receiving adequate medical treat- lay strewn at his feet, he would bend down and col- ment, and were being deprived of liberty without due lect himself and the papers yet again. The few times process. He claimed understaffing and overcrowding that he asked my siblings and me to skip school to by citing Dr. Harry Solomon, Emeritus Professor of watch him in court were frightening experiences for Psychiatry at Harvard Medical School, in Solomon’s us. On one occasion, the judge ordered marshals to address to the American Psychiatric Association. For remove my father from the courtroom because of his example, in 1958, 545,000 people were institution- unrelenting objections. My poor, petrified sister alized in nonfederal public mental institutions that started to cry since she didn’t understand what was had a capacity of only 520,000 beds, and of these, happening; nor did I. My protective mother decided 85,000 beds were considered to be unacceptable on that that would be the last time that we young chil- the basis of fire and health hazards by the states in dren would watch him argue in the courtroom, and which they were located. My father reasoned that the so I had the chance to see him in that role on only a neglect of the mentally ill was a basic philosophical few occasions. problem that in turn posed a legal problem. He as- My father spoke about his cases in rambling, fierce serted his main thesis, a legal argument for a consti- tangents, culminating with fist-banging emphasis on tutional right to adequate medical treatment. He 116 The Journal of the American Academy of Psychiatry and the Law Birnbaum claimed that, absent the provision of adequate treat- New York City. Mr. Stephens asked my father to aid ment, institutionalization provides no hope of recov- him in his efforts to be released and to obtain proper ery and amounts to a substantive violation of the Due care and treatment. On 12 separate occasions, my Process Clause: father presented Stephens’ claims before New York If the right to treatment were to be recognized, our substan- and Federal courts, including the Supreme Court on tive constitutional law would then include the concepts three occasions. No court consented to hear his claim that if a person is involuntarily institutionalized in a mental of inadequate treatment. institution because he is sufficiently mentally ill to require My father vehemently argued that Stephens was institutionalization for care and treatment, he needs, and is entitled to, adequate medical treatment; that being men- receiving inadequate treatment.