Protection of Hospitalized Mental Patients against Sexual Assault and Abuse: a Critical Review
Protection of Hospitalized Mental Patients against Sexual Assault and Abuse
A critical review*
Yigal Ginat, M.D.
I would like to present before you today a critical review of the report of the committee assigned to investigate the protection of hospitalized mental patients against sexual assault and abuse. The committee was nominated on March 7, 1991, by the Deputy Minister of Health on behalf of the Minister.
The task of the committee was defined as following: “to investigate the: (1) Frequency of sexual abuse currently occurring in psychiatric wards and hospitals; (2) Level of protection currently provided in these wards; (3) Level of protection needed in order to prevent sexual abuse of hospitalized mental patients; (4) Procedures to achieve this protection.”
The committee commissioned a legal opinion from Dr. Lem- berg, approached all directors of public psychiatric institutions, reviewed professional literature, and invited a few ward directors to testify. It also received data from rabbinical courts.
The committee reached the conclusion that “there were cases of sexual assault and abuse of hospitalized mental patients that sometimes resulted in pregnancies or divorce.”
The committee went on to state: “The data obtained indicate a substantial incidence of sexual abuse cases among hospitalized mental patients.” The committee avoided investigating the fre- quency of the problem which is, indeed, a difficult task, stating that even “in the absence of high frequency” the available anecdotal data is sufficient and further data collection is unnecessary.
Next, the committee adopted the notion that the law gives no value to a consent given by a mental patient to be involved in sexual relation. Therefore, any sexual activity by a mental patient should be considered as an act performed without a consent. This sweeping attitude has not yet been tested before a court of law and is opposed to the opinion of most psychiatrists. For legal purposes, most of us would define as “mentally sick” a patient who is actively psychotic and who suffers a significant loss of his reality testing and judgmental powers.
This is the approach taken regarding civil commitment, man- agement of property, and criminal responsibility.
The statement that every mental patient is always devoid of judgment and therefore cannot give consent is outdated and has been rejected both by modern psychiatry and modern legal thinking.
To bring the issue to its absurd extreme, one should say that if a mentally sick woman has sexual relations with her husband her consent to have sex with him is valueless, and the act should be regarded a rape.
The committee goes on to mention the section in the 1991 act dealing with patients’ rights, a section which bars any deprivation of patients’ rights, alluding to a right “to be protected from physical and emotional harm.” I totally agree with this interpretation. However, reading this right as the committee did totally deprives patients of another right: the right to have sexual relationships of any kind, sometimes for life.
Next, the report deals with the responsibility of the medical staff. It states that the staff is responsible for the protection of patients from sexual abuse (a term that is used here as a synonym for sexual relations). Therefore, any sexual act performed con- stitutes a violation of this responsibility.
The failure of this obligation is then equated to the per- formance of the act itself. The last step in this convoluted talmudic chain of equations is that a psychiatrist in whose ward a sexual act took place will be charged with rape as if he personally performed the act.
This quasi-logical (or better: para-logical) transition from a failure to protect (which equals medical negligence) to rape is far reaching, and probably a major innovation in legal thinking. Dr. Lemberg himself noted that some changes are needed in the criminal law to enable it and suggested their introduction.
It is my opinion that the committee aimed, by adopting this approach, to intimidate the directors of psychiatric hospitals and wards in order to cause them to agree to separation of sexes as the only way to avoid criminal charges. If this works well, the ministry might not need to issue administrative directives and the work of the tzadikim will be performed by others.
Next the report discusses the opinion of psychiatrists regarding the therapeutic importance of mixed wards. The report states: “The committee got the impression that professionals differ in their opinion on this subject. Some ascribe the improvement in patients’ behavior to the introduction of mixed wards, others to an improve- ment in treatment techniques or new drugs. The committee also received a positive report of the functioning of separate wards in the last period.” I assume that this report came from Dr. Averbuch, citing the short experience of Herzog hospital. I find the reasoning that ascribing improvement to either mixing the wards or to new medications funny. Obviously, this improvement resulted from more then one change.
The conclusion reached by the committee, namely that since not all the improvement can be ascribed to mixing the wards, hence this is a controversial issue. Hence, it can be professionally disregarded.
Moreover, if this is so, why within the last thirty years have most wards in most psychiatric institutions become mixed? If the experience of mixing the wards was not positive, why did they not revert back to being unmixed? How can the “recent experience” of Herzog hospital be considered equivalent to the sum of experience of all the other hospitals for so many years? It is noteworthy to mention here that the management of Herzog hospital, which is the only psychiatric public institution in Israel run by a religious organization, has for many years resisted pressures exerted on it by Charred circles to separate its wards. Only financial pressure by the Ministry of Health compelled Herzog hospital to comply with the demand to separate wards.
To the best of my knowledge, a vast majority of Israeli psychiatrists support the existence of mixed wards. It might be difficult for some of them openly to oppose the official policy adopted by the ministry.
Next, the committee “reached the conclusion that the level of protection needed in order to prevent sexual assault of hospitalized mental patients, makes the separation of sexes in different wards obligatory in addition to any other acceptable protective measures.”
The operative conclusion is that “the Ministry of Health is obliged to ensure the establishment of unisexual wards for adults and minors in all the psychiatric institutions in Israel.”
Let me make this clear. The ultimate goal of this report is to transform all the psychiatric wards in Israel to unisexual wards. The Ministry understands, however, that this goal cannot be reached immediately. As it will need some expenditures, the short-term goal will be to have separate wards in each hospital. We should not disregard or underestimate the covert aim behind this report.
The committee warns hospital and ward directors that they can be brought to court with both criminal and civil charges for an act of sexual abuse against a patient hospitalized in a mixed ward (which is, in fact, any sexual activity in which a patient is involved). According to the committee, consent of either the patient and/or his family will not provide legal protection against such charges, whereas assigning the patient to a separate ward can provide such protection.
The only possible conclusion to be drawn is that the fear of criminal as well as civil charges will cause us to agree to the separation of wards.
Today about three quarters of the wards within the public psychiatric system are open wards. Does anybody believe that patients hospitalized in open wards cannot have sexual relations outside the sheltered sanctuary of their boundaries? If we want to adhere to the spirit of the committee, we should lock the doors of all the psychiatric wards in this country.
I suggest that the next issue to be addressed should be the separation of staff. How can male psychiatrists, psychologists and nurses be trusted to treat female patients?
The report states that “the problem is not only medical, but also legal/social.” I totally agree with this statement. However, it seems that professional psychiatric considerations were given only minimal weight in this report compared to the legal and social.
The report also implies, without stating it openly, that mental health professionals (and mainly psychiatrists) tended for the last thirty years and to this very day to disregard or minimize the issue, to disregard the sexual safety of hospitalized patients, to treat sexual abuse with permissiveness just on the verge of encourage- ment. Psychiatrists are presented as allowing severe harm to be inflicted on some patients for the questionable benefit of other patients. As a result, the protection of ethics and morality has to be taken care of by the religious sector.
Professionally, I feel this implication as a burning insult. Throughout my medical career I have put the protection of patients and others from harmful behavior as my primary duty to patients, their families and society at large. I know well that some patients become sexually hyperactive when they are exacerbated, and that they tend to get involved – and involve others – in harmful sexual activities. I am definite that any sexual activity performed by a patient in a state of impaired judgment should be prevented by all available means: medications, special supervision, isolation, con- finement and, when necessary, by chaining patients to their beds. I am sure that most of my colleagues agree with this approach and use it in their daily practice. The availability of separate wards can be looked at as an additional modality to achieve this goal.
I would like to cite from a letter written by me and addressed to our distinguished chairman, Rabbi Dr. Halperin, on January 16, 1991, (a letter that was mis-cited by the spokesman of the Ministry of Health) as follows: “It seems to me that it is fully justified to establish sufficient separate wards for men and women in the various regions of Israel so that each patient and family who expresses a wish to be hospitalized in a unisexual ward can do so.” I stand behind this statement to this day. I would like to add that not only patients who demand it but also sexually hyperactive patients can be referred to these wards.
In my view, such an arrangement can provide an appropriate solution to the problem. The obligation to establish separated wards in every hospital, augmented by intimidation of hospital and ward directors, is a far-reaching step verging on religious coercion.
It is well known by now that mental patients, just like non-mental patients, adjust their behavior to the expectations of the social system in which they live. If we treat patients as irresponsible people who have to be separated from members of the other sex so as to prevent them from sexually abusing them, they will not behave responsibly and thus justify our self-fulfilling discriminatory prediction.
I am deeply worried that separation of wards will lead to an increased rate of physical violence, self neglect, regression and indulgence in homosexual activities. All these characterized the closed psychiatric wards before they become mixed. A return to the policies of the sixties and earlier will cause Israeli psychiatry a profound regression.
The committee’s report was signed by all its members and presented to the Minister of Health on May 31, 1991.
In his letter of June 16, 1991, the Minister thanked the committee for its rapid and thorough job. He concluded by the following sentence: “I intend to act in order to implement the recommendations put forward by the committee.” So, the report is at our doors, ready to get off the ground.
I cannot avoid expressing my protest to the fact that my colleagues, Dr. Szekely and Dr. Averbuch, signed this draconian document. To put it mildly, I do not think that they well represented the viewpoint of the psychiatric community in Israel on this issue. I would like to challenge both of them to withdraw their support from this report, even post factum.
To my other colleagues, and especially the leaders of Israeli psychiatry, the Psychiatrists’ Union and the Israeli Medical Association, I call to express their rejection of this report. We should all combine our forces to exert pressure on the Ministry of Health to reconsider its position and prevent the regression before harm is done.
Source: ASSIA – Jewish Medical Ethics,
Vol. II, No. 2, May 1995, pp. 39-41
* Presented in the Third International Congress on Psychiatry, Law & Ethics. Jerusalem, November, 1991.