March 06, 1978 12:00 PM

In 1975 a Bronx man was found mentally incapable of standing trial “in the foreseeable future” for the murder of a young woman he was living with. Released the following year from a maximum-security psychiatric center to an outpatient clinic, he was charged with a second murder in January—of a woman under similar circumstances—and was again found incompetent to stand trial. Increasingly, the 30,000 psychiatrists in this country are coming under attack for their role in such cases. One expert who feels psychiatrists wield far too much power in the nation’s system of crime and punishment is Dr. Jonas Robitscher, 57. A onetime Wall Street Journal reporter, he is now both a practicing psychiatrist and a lawyer who is working on three books—one entitled The Uses and Abuses of Psychiatry. Robitscher also teaches in the law and medical schools of Atlanta’s Emory University. He and his wife, Jean, co-author of a recently published cookbook, live with their 17-year-old son, John, near the Emory campus. Daughter Jan, 24, is away studying music and liturgy at Notre Dame, while Christine, 19, is a freshman at Yale. Robitscher discussed psychiatry and the law with Barney Collier for PEOPLE.

What legal powers do psychiatrists have?

It is a long, long list. One is by making recommendations to a court or a jury. For example, psychiatrists can determine financial competency, decide when contracts may be broken or whether a child needs a guardian. Court-appointed psychiatrists can find an accused person not competent to stand trial and prevent him from ever having a chance to prove his innocence—or guilt. Psychiatrists can thus divert people accused of crimes from the criminal justice system to the mental health system, where they can be held forever.

Don’t psychiatrists also play a major role in adoption and child custody cases?

Yes. They can take children away from retarded or mentally disabled parents. In adoption and custody disputes, they have great power in determining who will prevail. They can even order retarded women eugenically sterilized.

In addition to the courts, what are other areas in which psychiatrists wield power?

In mental hospitals, psychiatrists can use restraints, electroshock therapy and chemotherapy to control involuntarily committed patients and sometimes voluntary patients too. Psychiatrists can provide “excuses” or reasons for failure so that someone who performs badly in a job will not necessarily lose it. And they can excuse a man from working on the grounds of disability.

What is an example of the “psychiatric excuse”?

A classic is attributed to David Begelman, the former president of Columbia Pictures who misappropriated more than $60,000 from his company. Begelman is quoted as saying that his misdeeds “were aberrational, bearing no sense to reality. I had neurotic displays of self-destructive-ness. While everyone considered me very successful, apparently subconsciously I didn’t have the same high regard for myself. Therefore I was determined to do something that, if it didn’t destroy me, would hurt me badly.” In my opinion, that’s a mouthful he got directly from a psychiatrist.

How did psychiatrists get the power they have?

Originally they dealt with only a few legal areas, such as commitment to mental institutions, guardianship and determining, say, the capability of a person to make a will. But in this century psychiatry has become such a specialized branch of medicine that laymen feel they are not capable of disputing a psychiatrist’s opinion. The same is even true of judges, who are often reluctant to overrule a psychiatrist’s opinion because they trust his authority.

Is the psychiatrist’s power growing?

Yes. It has extended into new fields—control of the behavior of criminals, sexual deviates, hyperactive schoolchildren and many others. Psychiatry has been used on college campuses to preserve order by means of group therapy and anger-resolving techniques.

Are there any limitations on psychiatrists’ power?

In very obvious cases such as the David Berkowitz “Son of Sam” case, where a psychiatrist makes a decision that a suspect is not competent to stand trial, a judge may ask other psychiatrists and hear a different conclusion. But most cases do not get that kind of scrutiny. Usually the decision of the psychiatrist is pretty final. This allows abuses to occur.

Why do judges allow psychiatrists so much control?

Partly because judges don’t take enough time to learn about behavioral science. Partly it’s the fault of the psychiatrists, who tend to be authoritarian people. They don’t mind having this great power—and may even enjoy it.

Why are celebrities so addicted to psychiatry?

Actors, artists and writers tend to be people who from an early age show unusual creativity but also unusual vulnerabilities. They operate in a very unstructured field, usually without conventional security. They often attempt to do things on a larger scale than most people, with more risk involved, particularly actors and actresses. These people are often self-centered or narcissistic and don’t do well in interpersonal relations, so they sometimes seek psychiatrists as a source of help. Others go to spiritualists.

It is said that psychiatrists generally try to get their patients to conform. Is this an abuse?

There were a number of cases 10 or 15 years ago in which people were sent to mental hospitals because they were hippies or had some deviant lifestyle. Some psychiatrists classified these people as mentally unstable or, in the case of adolescents, said they were going through “an adjustment reaction” and needed to be sent away. I think we are more conscious now that this kind of treatment can be an abuse. Nevertheless, we still impose our values on patients. While psychiatrists tend to be more liberal than other doctors, we as a profession are essentially upper-middle-class traditionalists.

Is there such a thing as psychiatric malpractice?

The power psychiatrists have over their patients is very difficult to quantify or control. They are dealing outside the legal system. If a psychiatrist advises somebody to drop out of school or get a divorce, and the patient follows that advice, there is very little that can be done if the advice turns out to be bad. However, there have been successful malpractice cases when shock therapy and drugs were used, or when there was doctor-patient sexual contact.

Do you see any new psychiatric dangers on the horizon?

There are rather fantastic potentials for abuse. One is the polygraph, or lie detector test. Here the psychologist, the polygraph technician or the psychiatrist conducting the test may come to be the one who says what is true and false. There also are new ways, such as the eye movement test and brain wave analysis, to determine if a person is telling the truth. The time looms when the psychiatric expert will be elevated to a position where an ordinary person cannot contradict him.

What if a person feels competent to stand trial, despite a psychiatrist’s conclusion to the contrary?

If the defendant can afford to go out and hire his—or her—own psychiatrist, he may find one who shares his own point of view. If a defendant is indigent, he must rely on a court-appointed psychiatrist, who is supposed to be impartial. But the “helpful” psychiatrist is much more available to affluent people.

How do other psychiatrists feel about you?

Some of them see me as being more legalistic than I really am. I am not in favor of imposing so many procedural safeguards that it would impede people from getting help. But on the whole, psychiatrists don’t want to do the self-analysis that is required to decide the proper scope of their power.

Then what should be done?

One of the prime functions of lawyers is to question the basis of decision-making. So in the future psychiatrists’ conclusions should be open to legal challenge and review. I agree with the observation contained in a recent article by two psychiatrists: “The pathologist is the natural monitor of the surgeon; psychiatrists have only their conscience as their monitor.”

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