Legal implications of behavior modification programs.

Although it has probably never been tried in psychiatric practice, the use of the phrase "behavior modification" in a word association test l would probably evoke a range of responses covering the entire gamut of emotions. Projecting further, it is likely that the use of the phrase "legal regulation and intervention" in such a test given to practitioners of behavior modification would elicit even more emotional and anxious replies. l A Significantly, the disparity of (and volatility of) reactions to the above phrases is so great that even the apparently-simple issue of defining "behavior modification" has resulted in major, analytical discussions. 2 Any consideration, then, of the legal implications raised by use of behavior modification programs must come to grips at the outset with the serious problem of definability of the terms in question. Whatever "behavior modification" mayor may not mean to the psychiatrist or psychologist, it has been used in the context of a legal survey to include programs running the gamut from psycho-surgery to biofeedback to shock-generating devices to token economies to encounter groups.3 Although some of these are specifically excluded from a recent operative definition proposed by officials of the National Institute of Mental Health,4 the fact remains that all of the procedures listed along with countless others have been so classified. Thus, when public attention is focused on egregious examples of "treatment" (occasionally nothing more than Orwellianly labeled punishment), specifically including certain noxious aversive' therapies, e.g.,s it is insufficient for a practitioner of behavior modification to say "That's really not behavior mod they're just calling it that." Regardless of whether or not the outraged practitioner is right, programs with far-reaching implications are being labeled behavior modification programs, a factor which itself makes judicial scrutiny all the more inevitable and necessary.6 Because of the wide ~cope of programs involved, serious questions are being raised as to the constitutionality of many procedures and "therapies," specifically those involving aversive techniques or negative reinforcement,' on both substantive and procedural levels. The responses to such questions, as alluded to above, range from, "This is a scientific question, not a legal one, so courts should stay out," to "All programs should be abolished." To say that neither extreme contributes to a reasoned debate might appear to belabor the obvious, but probably needs to be repeated. Similarly, when Director of the Federal Bureau of Prisons Norman Carlson says (as he did at a recent convention of the American Academy of Psychiatry and the Law) that the ST ARTs prison program would not have received the adverse criticism it did had it been called an "experiment in control" rather than a "behavior modification" program,SA he bypasses the true issue a .title alone will neither insulate a program from judicial scrutiny nor focus unwarranted attention upon it.9 Rather, the inquiry should be focused