It’s Time To Take ‘Hygiene’ out of the Mental Hygiene Law

By Chris Liberati-Conant

It’s Time To Take ‘Hygiene’ out of the Mental Hygiene Law

12.9.2022

By Chris Liberati-Conant

JRNL_JanFeb_2023_MenatlHygiene_Conant_675

“I’m clean. I’m not supposed to be here. I’m clean.” Derek pleaded with me in the doorway of his room on the locked inpatient psychiatric unit at St. Francis Hospital in Poughkeepsie. He pressed on: “I did my laundry this morning. I brushed my teeth. These other people stink. I take care of myself.” I tried to explain to him that he was not locked up because of his personal hygiene, but because the doctors at the hospital had determined that he was dangerous to himself or others on account of his mental illness. He shoved his admission paperwork at me. Involuntary admission forms repeat the term “mental hygiene” multiple times.[1] “Hygiene. That means clean. So now you’re saying I have a hygiene problem.” For a green Mental Hygiene Legal Service attorney like me, the task of explaining to him why he was not allowed to leave the hospital of his own will was already fraught without the additional burden of the archaic, belittling names of the Mental Hygiene Law and the Mental Hygiene Legal Service.

Derek was right to be confused and offended. What the heck is “mental hygiene”? In its current use, it acts as an anachronistic euphemism for “mental health.” As obscure as it is now, the mental hygiene movement began as a progressive response to asylum conditions before becoming the dominant force in mental health in the early 20th century. It had its genesis in the idea that, like cholera, mental illness could be eradicated through prophylactic public health practices. It shared with the asylums it sought to reform the fundamental idea that clean living was a key to mental health policy. Worse, it shared fundamental beliefs and associations with the eugenics movement that led to mass sterilization of individuals in state mental hospitals and homes for the developmentally disabled. Because the term “mental hygiene” suggests that people with mental illnesses are unclean and because it comes from a movement that advocated human breeding and was deeply entangled with eugenics, we should remove it from the laws and institutions of New York State.

Asylums Promise To Solve the Problem of Mental Illness

A rough understanding of the asylum system is necessary to understand the mental hygiene movement that the evolution of which would become the Mental Hygiene Law. State-run asylums spread throughout Europe and the United States at the beginning of the 19th century. Before the advent of state-run asylums, non-wealthy individuals with mental illness and developmental disabilities were cared for by family. Failing that, people with mental illnesses, along with people described as “feeble-minded,” were confined to jails and poorhouses.[2]

Asylums sought to treat mental illness through “moral treatment,” which supposed that fresh air, rural settings, isolation from society and wholesome work and living would return patients to sanity.[3] Treatment could not be targeted toward any particular illness because no good classification of mental illnesses could be conceptualized, partly owing to the absence of any evidence of the causes of the symptoms afflicting asylum residents.[4] To return the patients to a proper relation to society, newly admitted patients and patients with bad behavior occupied the farthest reaches of the asylum wing. They had to earn their way through good behavior to beds closer to the central administrative hub, where the superintendent resided.[5]

Origins of the Mental Hygiene Law

New York’s first public asylum for the care of the mentally ill was at the New York Hospital, which built with state funding a separate structure for this purpose in 1808.[6] In 1827, the New York State Legislature passed An Act Concerning Lunatics, which provided in part that

[n]o lunatic shall be confined in any prison, goal [sic] or house of correction, or confined in the same room with any person charged with or convicted of any criminal offence. But he shall be sent to the asylum in New York, or other place provided for the reception of lunatics by the county superintendent (of the poor).[7]

New York opened its first state-run asylum in Utica in 1843.[8] The, next, Willard, opened in 1869.[9] The state could not add beds quickly enough to provide housing and treatment to its citizens with serious mental illnesses. Responding to the apparent burgeoning mental health crisis, the Legislature created the office of Commissioner of Lunacy in 1873 and codified the law related to mental health, including care and custody of “the insane,” management of asylums and the powers and duties of the Commissioner of Lunacy in 1874.[10] Shortly thereafter, the state asylums were renamed and reorganized as state hospitals.[11] In 1908, the state took responsibility from the municipalities for the care of people with mental illness.[12] By 1912, over 30,000 patients were in the custody of 14 state hospitals, “exclusive of Matteawan and Dannemora State Hospitals for the Criminally Insane.”[13]

The Eugenics Solution

In New York as elsewhere, the utopian dream that mental illness could be eradicated through benevolent incarceration proved false.[14] Instead of ridding the population of “defectives,” asylums filled with patients faster even than the growth of population.[15] Asylum directors and alienists who tracked the supposed causes of each patient’s mental illness and compared their data were confounded by the unreliability of their information, which generally came from reports of family members.[16] Heredity, on the other hand, not only matched their preconceptions, but promised more empirical data in the form of family trees, by which they thought they could map the evolution and degeneration of supposed defective and exceptional human stock.[17]

The mainstream “science” of eugenics made the solution to the exploding state hospital censuses obvious to many scientists and policy makers.[18] The better classes should reproduce, and the undesirables should be prevented or discouraged from reproducing.[19] Legislators were persuaded – states could save a lot of money if they no longer had to house and care for the seriously mentally ill and developmentally disabled.[20] Conveniently, the “insane” and “feeble-minded” of the inferior classes were at the disposal of states and counties, locked inside public asylums.[21]

New York enacted a sterilization law in 1912. Under that law, the state had authority to sterilize individuals living in state mental hospitals, the “feeble-minded,” confirmed criminals and “the dependent.”[22] The state compelled 18 individuals to undergo sterilization before the Supreme Court ruled the statute unconstitutional on the ground of equal protection.[23] After reviewing the arguments and evidence presented by eugenicists in favor of sterilization, the court held that the state violated the rights of state hospital residents to equal protection of the laws by requiring the sterilization of “feeble-minded” in state hospitals but not the “feeble-minded” who resided elsewhere.[24]

Buck v. Bell: Oliver Wendell Holmes’s Full-Throated Endorsement of Eugenics

Many other states had sterilization statutes. In former slave-holding states, sterilization efforts were closely linked with racial control as well.[25]

Virginia’s sterilization statute empowered the superintendents of state mental hospitals to order the sterilization of “any patient afflicted with hereditary forms of insanity, imbecility, etc.” upon a determination by the superintendent that to do so would be in the best interest of the individual and society.[26]

Carrie Buck was a young woman who lived at the Virginia State Colony for Epileptics and Feebleminded.[27] She lost her parents young and, when she was 17, she reported that her foster parents’ nephew had raped her. After she had a child, she was placed in the Virginia Colony in 1924.[28] The superintendent of the Virginia Colony, Dr. Albert Priddy, petitioned for Buck’s sterilization soon after her admission. Albert Strode represented the state. Irving Whitehead was appointed to represent Buck. It appears the fix was in, as Priddy, Whitehead and Strode were longtime political and business confederates. Strode and Priddy campaigned together for sterilization laws, and Whitehead sat on the board of the Virginia Colony, regularly approving sterilizations in that position.[29] The state’s experts, which included a prominent eugenicist, did not examine Buck, and Whitehead failed to submit expert evidence on her behalf. No evidence was produced that her child was an “imbecile.”[30]

Holmes brushed aside Buck’s due process argument and the same equal protection argument that prevailed in New York, lightly dressing his prejudice in a cloak of utilitarianism:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.

The court relied on Jacobson v. Massachusetts,[31] which validated the state’s power to compel vaccinations: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”[32] A single justice dissented, without opinion.

As many as 28,000 people were sterilized in the United States.[33] Holmes’s reasoning foreshadowed the pseudo-scientific Nazi ideology that led to the T4 program, which exterminated “useless eaters” housed in state psychiatric hospitals.[34] In 1942, the Journal of American Psychiatry published a debate on the merits of killing “hopelessly defective” children.[35] Between 1939 and 1945, the Nazis murdered as many as 275,000 “mental defectives.”[36] They later employed the same extermination techniques in the Holocaust.[37]

Mental Hygiene Brings Reform but Can’t Let Go of Eugenics

The mental hygiene movement sought to reform asylums and to study and prevent mental illness. Two of its early standard-bearers were Clifford Beers, author of the memoir “A Mind That Found Itself,” and psychiatrist Adolf Meyer. Beers and Meyer were charter members of the National Committee on Mental Hygiene, founded in 1909.[38] Initially the movement focused on reform of the asylum system, but they soon shifted their focus outside the asylum.[39]

Because proponents of the mental hygiene movement believed mental illness was largely incurable once it manifested, they looked to prevent its emergence in the community.[40] Just as communicable diseases could be wiped out through public health initiatives, so too could mental illness, as if psychosis was carried by a social pathogen.[41] Influenced by the emerging field of psychology, they believed early childhood maladjustment led to the emergence of mental illness, and urged parents and teachers to watch for fidgeting, excessive shyness and stammering as signs of incipient mental illness.[42] They supported juvenile courts, developed programs for parents and advocated for nursery schools. They pioneered the field of psychiatric social work and trained visiting teachers to train classroom teachers.[43] Progressive as it may have been, the mental hygiene movement had little place in it for people with mental illnesses.[44] Instead, much like the state hospitals, it was an arm of psychiatry, enforcing societal norms by emphasizing moral and social development in children in general and in schools in particular.[45]

Despite believing that heredity was not the most significant determinant of the emergence of mental illness, prominent mental hygienists like Meyer were also eugenicists.[46] It is here that the mental hygiene movement is linked with what became the racial hygiene movement in Germany. Eugenicists believed society was sick, tainted by immigrants and defectives like people with mental illnesses who were degrading Anglo-Saxon stock.[47] The National Committee on Mental Health agreed that the marriage and propagation of immigrants and defectives was an epidemic in need of control.[48] Thus, while the organization did not advocate sterilization, it did advocate for human breeding by discouraging supposedly lower-quality individuals from reproducing and encouraging the better classes to reproduce. Further, Meyer was a board member of the infamous Eugenics Records Office in Cold Spring Harbor, New York, which was the Carnegie-funded hub of eugenics research in this country, and which shared research with the proto-Nazi racial hygiene movement in Germany.[49]

Following World War I, the mental hygiene movement became a dominant voice in public mental health policy.[50] Thus, the Legislature abandoned the outdated term “lunacy” when it created the Department of Mental Hygiene in 1926 and the Mental Hygiene Law in 1927.[51]

The mental hygiene movement faded following the Second World War as new medications and treatment models emerged.[52] The term “mental hygiene” has nevertheless remained embedded in the law, surviving the most recent re-codification of the Mental Hygiene Law in 1973.[53]

Conclusion

Just as people with mental illnesses were long referred to in the law as “lunatics,” people with developmental disabilities were described “feeble-minded.” That term gave way to the once-progressive term “mental retardation.” Over time, the term “retardation” became pejorative. Thus, just a few years ago, the Legislature renamed the Office for People with Mental Retardation as the Office for People with Developmental Disabilities and removed the term “mental retardation” from the law.[54]

And in 2021, the Legislature removed from the law the archaic and offensive terms “lunacy” and “lunatic” and replaced the phrase “mentally ill person” with the person-first phrase “person with a mental disability.”[55] As for what should replace “mental hygiene,” the phrase “mental health” is an obvious candidate. The best people to ask, though, are the people subject to the law and their advocates.[56]

There are many difficult issues related to mental health. This is not one of them. The mental hygiene movement that gave its name to our law was closely associated with eugenics and promoted the idea that clean living could prevent mental illness. That the mental hygiene movement sought to rid humanity of defectives by education and breeding instead of sterilization and murder does little to mitigate the inappropriateness of our continued use of the term.[57] It is confusing and potentially offensive to anyone who does not know its history, and to who anyone who does, it is an unpleasant reminder of the early 20th century psychiatric establishment that sought to eradicate the individuals to whom it applies.

That we still must refer on a day-to-day basis to the Mental Hygiene Law is an outrage that continually stigmatizes and marginalizes the people on whom the law operates.

Chris Liberati-Conant was an attorney for Mental Hygiene Legal Service, Second Judicial Department, from 2011 until 2015. He is currently employed by the New York State Office of the Attorney General.

[1] See, e.g., OMH Form 474, Emergency Admission: Section 9.39 of the Mental Hygiene Law, https://omh.ny.gov/omhweb/forensic/manual/pdf/omh474.pdf (last visited Dec. 4, 2022).

[2] The Hudson River State Hospital for the Insane, N.Y. Times, Dec. 28, 1872, https://timesmachine.nytimes.com/timesmachine/1872/12/26/79205947.pdf.

[3] Gerald N. Grob, The Mad Among Us: A History of the Care of America’s Mentally Ill 65–66 (The Free Press 1994); Theodore M. Porter, Genetics in the Madhouse: The Unknown History of Human Heredity, 36–37 (Princeton University Press 2018).

[4] Grob, supra note 3, at 73–74

[5] Id. at 72.

[6] Henry M. Hurd, The Institutional Care of the Insane in the United States and Canada, Vol. III, 112 (Johns Hopkins Press 1916).

[7] Id. at 113.

[8] Id. at 114.

[9] Id. at 111–14.

[10] Id. at 118.

[11] Id. at 126.

[12] Bonita Weddle, Mental Health in New York State, 1945-1998, An Historical Overview, New York State Archives 1998, Pub. No. 70, available at http://www.archives.nysed.gov/common/archives/files/res_topics_health_mh_hist.pdf.

[13] Hurd, supra note 6, at 130.

[14] Grob, supra note 3, at 139–42; Porter, supra note 3, at 79, 99.

[15] Porter, supra note 3, at 79, 94–95, 99.

[16] Id. at 69.

[17] Id. at 227, 232.

[18] Id. at 30, 126–27, 218, 224.

[19] Grob, supra note 3, at 160–61; Porter, supra note 3, at 334–35.

[20] Grob, supra note 3, at 160–61.

[21] Id. at 161.

[22] Anne Harrington, Mind Fixers: Psychiatry’s Troubled Search for the Biology of Mental Illness, (W.W. Norton & Co. 2019); Osborn v. Thomson, 103 Misc. 23 (Sup. Ct., Albany Co. 1918).

[23] Lutz Kaelber, Presentation: Eugenics: Compulsory Sterilization in 50 American States, Presentation at the 2012 Social Science History Association, https://www.uvm.edu/%7Elkaelber/eugenics/NY/NY.html (last accessed Dec. 4, 2022).

[24] Osborn, 103 Misc. 23.

[25] Harrington, supra note 22, at 52.

[26] Buck v. Bell, 274 U.S. 200, 205 (1927).

[27] Id.

[28] Phillip Thompson, Silent Protest: A Catholic Justice Dissents in Buck v. Bell, The Catholic Lawyer, Vol. 43, No. 1, Spring 2004.

[29] Id. at 141; Harrington, supra note 22, at 53.

[30] Id.

[31] 197 U. S. 11 (1905).

[32] Buck, 274 U.S. at 207.

[33] Harrington, supra note 22, at 53.

[34] Michael Berenbaum, T4 Program, Encyclopedia Britannica, 10 Sep. 2018, https://www.britannica.com/event/T4-Program; Porter, supra note 3, at 335.

[35] Harrington, supra note 22, at 54–55.

[36] Berenbaum, supra note 34; Harrington, supra note 22, at 53.

[37] Harrington, supra note 22, at 54.

[38] Grob, supra note 3, at 155.

[39] Sol Cohen, The Mental Hygiene Movement, the Development of Personality and the School: The Medicalization of American Education, 126, History of Education Quarterly, Vol. 23, No. 2 (Summer 1983), available at https://www.jstor.org/stable/368156.

[40] Grob, supra note 3, at 160.

[41] J.W. Bridges, The Mental Hygiene Movement, The Public Health J., Vol. XIX, at 1.

[42] Cohen, supra note 39, at 127; Harrington, supra note 22, at 77; Theresa R. Richardson, The Century of the Child: The Mental Hygiene Movement and Social Policy in the United States and Canada, 88 (SUNY Press 1989).

[43]Richardson, supra note 42, at 54–57, 87–103; Bridges, supra note 41, at 7; Cohen, supra note 39, at 129–32.

[44] Grob, supra note 3, at 156; Richardson, supra note 42, at 57.

[45] Cohen, supra note 39, at 126–27; Grob, supra note 3, at 151; Richardson, supra note 42, at 57, 87–103.

[46] Harrington, supra note 22, at 74–75; Richardson, supra note 42, at 64, 77.

[47] Frank W. Stahnisch, The Early Eugenics Movement and Emerging Professional Psychiatry: Conceptual Transfers and Personal Relationships Between Germany and North America, 1880s to 1930s, 17–40, UTP Journals, Vol. 31:1 (2014), https://www.utpjournals.press/doi/pdf/10.3138/cbmh.31.1.17 (last accessed Dec. 4, 2022); Grob, supra note 3, at 159; Porter, supra note 3, at 256.

[48] Richardson, supra note 42, at 54.

[49] Grob, supra note 3, at 160; Porter, supra note 3, at 263–64; Harrington, supra note 22, at 51–52.

[50] Cohen, supra note 39, at 137–38; Harrington, supra note 22, at 77–81.

[51] See Weddle, supra note 12.

[52] Grob, supra note 3, at 198–221; Harrington, supra note 22, at 57.

[53] Grob, supra note 3, at 27–28; 19 N. Y. L. F. 83 (1973-1974), The New Mental Hygiene Law of New York: A Recodification. David A. Andelman, Law Gives Mental Patients Rights, but Worries Others, N.Y. Times, Jan. 16, 1973, https://www.nytimes.com/1973/01/16/archives/law-gives-mental-patients-rights-but-worries-others.html?smid=url-share.

[54] See OPWDD, Agency Name Change Update Amendments to 14 N.Y.C.R.R. Parts 630 and 671 Final Regulations, available at https://opwdd.ny.gov/system/files/documents/2020/01/agency_name_change_update_text_adopt_0.pdf (last visited Dec. 4, 2022).

[55] https://www.nysenate.gov/newsroom/press-releases/john-w-mannion/senator-mannion-bill-removing-lunatic-lunacy-and-other.

[56] Jane Gottlieb, Name Change at Agency to Remove ‘Retardation,’ N.Y. Times, June 7, 2010, https://www.nytimes.com/2010/06/08/nyregion/08name.html.

[57] N.D. Volkow, J.A. Gordon, & G.F. Koob, Choosing Appropriate Language To Reduce the Stigma Around Mental Illness and Substance Use Disorders. Neuropsychopharmacol. 46, 2230–32 (2021), https://doi.org/10.1038/s41386-021-01069-4

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