The Libertarian Hard Cases, Part II: Mental Incapacity

About a week ago, I began a discussion of what I call the “hard cases” for libertarian ideas with some open questions about the status of children under a libertarian theory of natural rights. The comments to that post, as well as the follow-up Monday Open Thread, yielded some interesting ideas that I intend to respond to in the near future.

Before that, though, the second part of the discussion I wanted to start involves a similar subject — how would a libertarian society protect the rights of adults who are mentally or physically incapacitated and unable to provide for themselves and protect their rights ?

Judging Mental Incapacity

What determines when an individual has become mentally incapacitated to such a degree that they are incapable of making the decisions that people are usually assumed to be able to make on their own ?

In some cases, the determination would seem to be rather easy. An elderly person with full-blown Alzheimer’s Disease or some other form of dementia, or suffering from severe brain damage after a stroke, would clearly seem to fall into this category. Persons in that category are clearly suffering from some form of brain damage as a result of illness or injury that has left them without the ability to think rationally.

But what about some of the other forms of mental illness that we’ve become familiar with, such as schizophrenia ?

There are those, such as Thomas Szasz, who would argue that these “lesser” forms of mental illness don’t exist at all and that forced hospitalization of people that psychiatrists and psychologists refer to as “mentally ill” is a form of state-supported imprisonment of someone who hasn’t committed any offense other than behaving strangely.

On the other hand, there is the argument that someone who is a danger to themselves or, potentially, others should not be permitted to simply roam the streets without being treated.

Leaving Szasz to the side, is there a libertarian argument in favor of forced treatment of the mentally ill, and, if so, under what circumstances should such forced treatment be permitted to occur ?

The Role Of The State

There are issues that come into play here that are similar to those that arise with children. Who is responsible for the care and safety of a mentally incompetent adult ? The first choice is always the family, obviously, but, just was with children (and perhaps even more so here) the potential for abuse and neglect exists — not to mention the fact that many families may not be able, financially or otherwise, to do everything that needs to be done to provide for a person in this condition.

At what point, if ever, should the state step into a family situation such as this and say that the family is not acting in the best interests of the incompetent adult ?

There are several other issues that could fit into this topic — most notably the issue of insanity and criminal responsibility, which is worthy of a post all it’s own — but this should be enough to get things started.

  • tkc

    Mental incapacity manifests itself in so many ways that it makes for a very difficult issue to legislate. So don’t do it. It is as simple as that. If you think someone is crazy and represents a danger to you then the burden is on you to prove it. It should not be up to the individual to prove to the state that they are sane.

    What I am leary of is the government and other assorted busy bodies coming up with clever ways to define otherwise normal things as a mental incapacity. For example, a gun controller might say it is insane to want to keep a gun on your person at all times and then call for the mental evaluation of CCW supporters.

  • Alex Hagen

    The idea that schizophrenia doesn’t exist is so completely ludicrous that you forfeit any credibility you may have had by even mentioning it.

    Of course, libertarians have little credibility to begin with, so it’s no big deal.

  • Doug Mataconis


    Don’t complain to me, talk to Dr. Szasz. I don’t necessarily agree with what he says on the issue of mental illness but, since I don’t have the scientific background necessary to rebut his arguments I don’t intend to address them as an amateur — we have far too many amateur psychobabblers out there to begin with.

  • Harold A. Maio

    ” … is there a libertarian argument in favor of forced treatment of “THE” mentally ill, and, if so, under what circumstances should such forced treatment be permitted to occur ?” far from libertarian, misses the point entirely: Force treatment on “THE” Jews, “THE” Blacks? I dare those words to appear in print.

    How dare you?

    Each and every instance of wanting to force medical treatment upon an unwilling individual (can you tatste the diffrence?) could be heard in courtrooms. The question you did not pose, why is it not?

    Is there an argument in favor of forced medical treatment, inteventions? There is, and it is employed in courts, rarely, but as well protected as any forced intrusion on a person’s life. And it is vigorously defended, on both sides.

    Why has that route not been taken? Because most America, including the judiciary, and attorneys- and journalism, do not think of mental illness in medical, but in penal terms. And that is precisly how we have responded to mental illnesses. Outside existing, easily applicable, law.

    Harold A. Maio
    Advisory Board
    American Journal of Psychiatric Rehabilitation
    Board Member
    Partners in Crisis
    Former Consulting Editor
    Psychiatric Rehabilitation Journal
    Boston University
    Language Consultant
    UPENN Collaborative on Community Integration
    of Individuals with Psychiatric Disabilities
    8955 Forest St
    Ft Myers FL 33907

  • tkc

    “Leaving Szasz to the side, is there a libertarian argument in favor of forced treatment of the mentally ill, and, if so, under what circumstances should such forced treatment be permitted to occur?”

    The only libertarian argument I can think of is that the mentally ill person is actually harming someone.

  • Akston

    One difference between a child’s incapacity to function independently and an adult whose mental or physical state incapacitates him to some degree is that the child’s incapacity is “normal” and an incapacitated adult is out of the normal.

    Also, a child’s incapacity is usually assumed to be temporary. An incapacitated adult’s condition may or may not be. A child’s incapacity is normally “treated” by “coming of age”. An adult who is incapacitated can be treated medically, and might have to be cared for indefinitely if treatment cannot mitigate the condition which causes the incapacity.

    Even though both groups might require guardians, one difference is in the default. A guardian for a child is the norm; a guardian for an adult is the exception.

    But the question still remains: When, if ever, should the state intercede in these default scenarios?

    Your threads here and here discussed children.

    As for adults, I find my position doesn’t differ too much from libertarian thought for any other adult. There will always be a spectrum of “incapacity” for adults, mentally and physically. To the degree that an adult can express a preference for his pursuit of happiness and act toward it – either directly, or with voluntary help – no other adult should legally have a role.

    As tkc pointed out, this would, of course, be limited by the standard libertarian proviso that the “semi-capable” adult in question didn’t trammel the rights of another citizen. In that case, the state would have its normal role.

    If that adult was incapacitated so as to not be able to express a preference, he would require a guardian. The first resource to be tapped for guardians would properly be relatives, starting with the closest. The next resource would be charitable and religious organizations.

    Unless the actions of an adult able to express himself are violating the rights of another citizen, I see no role for the state. When we add one, we then have to allow the courts to potentially abrogate the rights of adults who have expressed a preference for their life originating from somewhere along that spectrum of capacity. It becomes a subjective argument between observers and the adult himself. Is gambling addiction considered incapacity? What about substance abuse? What about gullibly? What about limited mental development? How limited? How about limited physical development? How limited? Who defines these?

    I do agree that the state has a role when a guardian’s abuse of his ward is proven. As with children, I would limit the definition of abuse to correspond with Maslow’s first two levels .

    These, of course are just one libertarian’s opinions. This libertarian does not believe that governments were instituted to regulate the quality of our lives, only the security of them, and the security of our property.

  • Perry Munger

    You have to understand, I am not a libertarian. I am a card-carrying Libertarian because they are headed roughly in the same direction, which is why I am also a Ronbot. I am, however, an anarcho-capitalist.

    So, my answer does not necessarily reflect the standard libertarian position. It is based on a question of responsibility and change.

    If a person presents no credible threat to individuals in society, the state has no authority to prosecute that person. In other words, the interest of the state must be as narrowly and clearly defined as possible. Now, in an anarcho-capitalist utopia, the security would be provided by private entities that would have such a tight focus. Since providing social welfare is contrary to profit motive, there is little reason for a private company to try to improve society beyond that which it is paid to do.

    Once the principle of proper use of government (force) is established, the rest follows. Since force can only be applied to prevent violence, which is unprovoked force used against another entity, and to punish the guilty of violence, it follows that a whole host of ideas put forward by world-improvers are unacceptable.

    Now, those who are unable to help themselves used to be helped by private charities. Charities have the benefit of not coercing aid from those, who, like Spartans of old, believe that the infirm do not deserve aid. Whether or not one agrees with that viewpoint is beside the point to me.

    However, those the state or some private security firm deem to be a danger to other persons in society must be held at the state’s or the firm’s expense or some arrangement arrived at that respects the natural rights of all parties as much as possible. Hence, insane people who are a danger should be held with as much dignity and freedom as possible, including access to reasonable information and entertainment.

    Dignity is one thing missing from the state handling of welfare, however. Once a state determines to ‘help’ someone, an endless army of worker bees descend upon him/her and poke and prod and chide until the poor person is driven nearly to distraction.

    Take, for instance, the legalized monopoly the modern medical system has. Upon entering a hospital, the system actually expects the patient to release all control of themselves to the benevolent doctors and nurses who then screw up fairly often. When this sort of thing happens, there is no oversight in cost, no buy-in from the patient and no self-determination. There is also no dignity.

    I suppose what I’m getting at is that the state’s treatment of those remanded into its custody for various psychological problems are not treated particularly well at this point and I doubt that removing the state from the equation would worsen their lot significantly.

  • Ted

    “But what about some of the other forms of mental illness that we’ve become familiar with, such as schizophrenia ?”
    these are not “other” forms of mental illness. they are the only forms of it. the real illnesses you mention – Alzheimer’s, etc – are not mental illnesses but physical illness. failing to distinguish between the brain and the mind will, no doubt, cause much confusion for author and commenters (eg Alex Hagen) alike.

    you say that “forced hospitalization of people that psychiatrists and psychologists refer to as “mentally ill” is a form of state-supported imprisonment of someone who hasn’t committed any offense other than behaving strangely” is Szasz’s *argument*, which is not true. instead, it is clearly an honest description of the facts. what Szasz argues is that such actions are immoral, and it is here that you may disagree. from what you have written, i cannot think you have read Dr Szasz very closely at all.

    there are, to be sure, some difficult questions re: incompetence. but they have precious little to do with state psychiatry, which is a horror i hope we will soon confine to history.

  • Joe Curren

    Congratulations for having discussion on this important issue. As a longtime Libertarian and healthcare professional with decades of experience working with those with mental illness and dementia, I have considered these issues deeply. In most states, the legal aspect comes down to 1) dangerousness to self or others, and 2) the ability to give informed consent for treatment. While some mental health issues are less clear-cut, schizophrenia offers a good example of a medical illness with manifestations in thought and behavior.

    Schizophrenia is not a lifestyle choice, it is an illness much like diabetes. Like diabetes, if untreated and sufficiently severe, the resulting confusion can have an individual making unsafe choices like walking in fast-moving traffic.

    In the most extreme example, would a good Libertarian consider it a “freedom” to be able to lie down on the highway and be run over as a result of illness-caused confusion? I would hope that if this happened to me or any member of my family that caring professionals would intervene.

    This extreme example can be extrapolated out as important policy decisions are considered to address realities such as that 1/3 of our homeless and many of those incarcerated in our prisons are also seriously mentally ill. Is is a “freedom” to live on the street covered in lice, unfed, and victimized by criminals simply because one’s illness prevents them from making sound judgments?

    Many more of us will confront similar issues when we find that our parents are being robbed by unscrupulous callers telling them they have won a sweepstakes that requires their bank account number to make their payoff. People like this compile lists of older adults with memory impairments and poor judgment. Family members often must watch a parent lose their life savings because the law allows their parents the “freedom” to make their own unwise choices until the system finds a way to determine they are no longer competent — often much too late to prevent the loss of their home.

    Libertarianism is at its best when thoughtfully addressing the issues of individual liberty, and at its worst when pretending that allowing people to die in the streets is somehow justifiable.