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The Right To Waive Your Rights

I do understand the logic behind not allowing just any old contract to be legally binding. The reductio ad absurdum is the EULA that says “By opening this product, you agree not to sue us if this product malfunctions and hurts you, not to give us any negative feedback, and not to object if this product monitors everything you do and reports it back to us.” And people never read those things, so it basically means companies can be above whatever laws they choose.

The other reductio is the job offer with the contract saying “By accepting this job, you agree to work whatever hours we tell you without overtime, and you can’t raise sexual harassment complaints, and you’re bound by a non-compete agreement not to work in this industry again if we fire you.” That’s basically selling yourself into slavery, and although in theory the problem should be limited by people being unwilling to sign such a deal, in practice, the job market.

I do understand the logic, really. But restrictions on contracts scare me, and they should scare you too.

It’s easy to say things like “Well, in those examples above, contracts are a tool used by the powerful to oppress the powerless. And it seems like a general case that the powerful will have lots of ability to coerce the powerless into signing unfair contracts, so in general banning forms of voluntary contract should always be a progressive, pro-egalitarian position.” And a lot of progressive egalitarians do say this.

So let me talk about my f@#king life.

Every day I get to evaluate new psychiatric patients in the emergency room. A lot of them are there for attempted suicide. They say they’re depressed. They say they’re not getting any treatment for their depression. I gingerly bring up that they might want to stay a couple of days in the psych unit for treatment.

“Oh, no, I could never do that. My sainted mother’s in the hospital on her death bed now, and I’m the only family she has left, and if I’m not there with her when she goes it would haunt me forever. And my kid has his Little League championships this evening, and it’s the only time he’s ever won something, and he specifically told me if I’m not there cheering him on he’ll never forgive me.”

I gingerly bring up that, actually, the law requires that if someone is a danger to themselves or others, I have to commit them to the psychiatric hospital, whether it is convenient for them or not.

“What? Me? A danger? No! I was just really tired, and high on drugs, and my car broke down, and I don’t have any money to fix it, and I saw some pills, and I impulsively did something stupid. I’ll never do it again! Honest! If you give me the name of an outpatient psychiatrist, I’ll go there every day! Twice a day! I promise!”

I gingerly bring up that this isn’t really a debate, that they’re squarely in the “very high risk” category, and all of the appropriate rules and procedures say that they need to spend a little while in the hospital and get treatment. That sometimes getting treatment for unremitting life-ruining totally unmanaged depression is a good thing.

“You don’t understand. It’s not just my mother and the Little League game. I’ve already missed a couple days of work this month, and my boss says if I miss any more I’m going to be fired, and there’s no way I can find another job in this economy, and without that money me and my kids will lose our house. And I’m in the middle of a divorce and I have to be at the court in two days for the hearing or else my sadistic abusive ex will get custody of the kids.”

I gingerly bring up that no, really, this isn’t a debate, there are rules here.

“You don’t understand! I have to transport my adopted daughter’s boyfriend to safety. This man’s done no wrong, and he needs a doctor’s care. Another hour yet, and then I’m yours, and all our debts are paid.”

I’m not heartless. I really want to respect people’s autonomy. I obviously want to help people stay alive long enough to get better, but I don’t really have any personal investment in maintaining the suicide rate at exactly zero if the human costs of doing so are too high. I just want to do more good for my patients than harm. So finally I give up and go ask a superior, and they always say the same thing. Commit.

Suppose that I guess this patient’s risk of another suicide attempt in the next year is something like 15%. Suppose that 1/5 of those attempts will result in serious injury or death. So there’s a 3% one-year risk of suicide-related injury or death for this guy.

Suppose that if a lawyer comes to a person who has just suffered a suicide-related injury, or the family of a person who has just completed suicide, and offers them a free $500,000 at no cost to them, at least 10% of people will take it.

So if 3% of patients get hurt, and 10% of the ones who get hurt sue, then one in every three hundred patients like this whom I discharge is going to sue me. And win, because it’s my legal duty to assess a patient’s safety and treat if unsafe. And if I take an obviously suicidal patient and send them home untreated, no court in the world is going to rule in my favor.

I see about a hundred of these people a year, so that’s a lost lawsuit about every three years. Depending on how bad the court loss is, and how good my malpractice insurance is, I might not be completely ruined by a single lawsuit. I might get to keep my house, keep the clothes on my back, keep my job, keep my medical license. Then again, I might not. And another lawsuit every three years? Good frickin’ luck.

This is not a theoretical possibility. The doctors older and more experienced than I am have seen it happen. A guy begs to be allowed to go, says he’s not suicidal at all, everything will be fine. The doctor goes soft and lets him. He thanks the doctor profusely, says she can’t possibly understand how much it means to him. The next month he shoots himself and is permanently crippled. A lawyer informs him he can get $500,000 by suing the doctor for breach of duty since she let him go home even though he was clearly suicidal, and the doctor doesn’t have a leg to stand on. There’s the guy on the stand, saying “She knew I was suicidal, I told her all about it, and she did nothing!”

(Doctor’s attorney: “But didn’t you specifically ask not be treated?” Patient: “Yes, but I wasn’t in my right mind. Maybe the fact that I was undergoing psychiatric evaluation just after a suicide attempt should have clued you in!“)

I want to do what’s right for my patients. But I also want to follow the law. And I also want to avoid losing my livelihood and everything I have. There have been times I may have slightly bent certain standards, when the moral pull was so strong I wasn’t going to be able to sleep at night otherwise. But on the main, I don’t want to last only three years in the business. That’s not good for me, and it’s not good for patients who I might otherwise be able to help.

The progressive says: “This insistence on the sanctity of voluntary contracts only benefits privileged oppressors. It allows them to force poor innocent victims to sign away their rights to protest ill treatment.”

And so it does. I’m clearly the privileged oppressor here. And I would really like to be able to ask my patients to sign a contract saying they waive their rights to sue me if things go wrong. Actually, I want to be even more evil than that. I want to ask my patients to sign a contract waiving their rights to sue me, and threaten to commit them to hospital against their will if they refuse.

And yet this would be the most powerful method possible of protecting patient autonomy. I would love to be able to bend the rules for a patient who has some really good reason not to want to go to hospital, whether it’s their dying mother or their demanding boss or even just that they can’t afford it (did you know they can force you to pay for your involuntary commitments? What a country!) I would love to be able to tell them “Well, as your psychiatrist I strongly recommend hospitalization, but you’re in your right mind, you’ve got decision making capacity, and hey, it’s your life.” But the only way I can do this without pretty much ensuring I’m going to get bitten sooner or later is if they can waive their rights to take advantage of me.

This situation kinda maps on to the Prisoner’s Dilemma, you know. We can both cooperate – I send him home, he doesn’t sue me. I can cooperate while he defects – I send him home, then he sues me. I can pre-emptively defect against him – commit him to hospital.

When you prevent people from making deals to cooperate with each other in Prisoner’s Dilemmas, terrible things happen. It means that, unless one or another party is a martyr, they’re both going to end up defecting on each other. And when both parties defect on each other, that’s no big deal for the more powerful party, but a disaster for the powerless oppressed people we’re trying to help. When we end up in mutual defection, I don’t have to deal with anything worse than the patient yelling at me while I write it down on my little pad and try to sound sympathetic. The patient has to miss their son’s Little League championship game and then he never talks to them again.

(ninety percent of sob stories are false, but ten percent are true).

I know it sounds weird to insist on a right to waive your rights. Isn’t that more of an anti-right, so to speak? But come on, read your Schelling. In multiplayer games, the ability to limit your options can provide a decisive advantage. If you’re playing Chicken, the winning strategy is to conspicuously break your steering wheel so your opponent knows you can’t turn even if you want to. If you’re playing global thermonuclear war, the winning strategy is to conspicuously remove your ability not to retaliate, using something like the Dead Hand system. Waiving your right to steer, waiving your right not to nuke, these are winning strategies; whoever can’t do them has been artificially handicapped.

I do understand the logic behind not allowing just any old contract to be legally binding. But I also think that the right to waive your rights is a right. We understand that there are cases in which we can violate rights; there are a whole host of exceptions to the right of free speech. But it requires a good reason, and you had better realize you’re treading on dangerous ground.

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314 Responses to The Right To Waive Your Rights

  1. Totient says:

    I’ve always had a kind of vague, “I’m pretty sure we should allow people to sign any contract they want since it’s their choice” feeling. By default, I want to maximize what people are allowed to do, in the absence of compelling evidence that that’s a bad idea.

    But I was never comfortable pushing the idea too hard because people I talked too always had horrifying examples of how it could go really, really wrong. Rhetorically, abstract principles seem to lose to horrifying examples every time.

    As I was reading this, I thought, “Now, I have counter horrifying examples! I am now prepared to fight this issue on the battlefield of horrifying anecdotes!”

    (I mean, I didn’t think those exact words, right away, but that was the feeling.)

    Sometimes, really worry how I (and most people I know) debate issues…

    • Viliam Búr says:

      I usually imagine people signing a contract they don’t fully understand. Which is almost everyone, almost all the time.

      So I think it is good to have a limit for how bad things can go if you sign a contract without being an expert in the field and without having IQ 200 to understand all possible implications of what you just did including all possible interactions with other contracts and/or laws.

      Without such limits, most people would unknowingly sell themselves to a slavery within a week. The smart ones within a year or two.

      • Error says:

        Presumably the smart ones would avoid signing all but the simplest contracts at all.

      • One way that we could overcome this is to require signers to write their own descriptions of what the contract means, and only hold the signature valid if a neutral third party confirms that they mean the same thing. That would be a lot more effort than just signing, but maybe that’s a feature.

        • somnicule says:

          Hopefully it’d be better than the Treaty of Waitangi. I mean, it wasn’t a total failure, but I’d rather not have every contract work out that way.

      • Totient says:

        I imagine that in the economist’s utopia (Ricardoland?) there would be a healthy “contract rating” industry. Like, “Yelp for contracts” or something, where you can check for the contract you’re considering signing against a database and get ratings and analysis back. Very few people would sign a contract after reading the review: “Accidentally sold myself into slavery. Would not sign again.”

        People could also probably set up something like assurance contracts to discourage situations where it becomes standard industry practice to require customers/prospective employees to sign terrible contracts. Something along the lines of “I agree to never sign a contract with a company that requires me to sign away [important right] if, [sufficiently large number] people also sign this assurance contract.” Companies that try to require employees/customers to sign contracts detrimental to themselves are banking on the idea that potential employees can’t coordinate (no one signs contract: employees win; one person signs contract: they get employed, other person doesn’t; both sign contract: both employees sign away rights…)

        Obviously, we don’t live in Ricardoland. Transaction costs and the like are too high for this to work all the time. But denying people the right to waive their rights isn’t a virtuous solution in and of itself. It’s an ugly hack.

        • Anonymous says:

          This seems like it would only work on extremely common form contracts, for a start. I’m not sure whether that’s a transaction cost.

          • John says:

            Once a contract is on there and has useful reviews, though, the transaction costs of using that particular contract are reduced, so it’s more likely to become widespread in application.

        • TRex says:

          There are one or two legal startups that are providing form contracts, which sounds like it’s moving in the direction of your contract rating idea.

          The assurance contract idea sounds like it’s edging toward some sort of distributed union. Fascinating idea, actually – that’s precisely the sort of coordination that web-based startups have had some success at facilitating by lowering transaction costs.

        • Ano says:

          “I imagine that in the economist’s utopia (Ricardoland?) there would be a healthy “contract rating” industry. Like, “Yelp for contracts” or something, where you can check for the contract you’re considering signing against a database and get ratings and analysis back. Very few people would sign a contract after reading the review: “Accidentally sold myself into slavery. Would not sign again.””

          The contract would presumably forbid using such websites. Which is precisely the danger of infinitely powerful contracts, that any countermeasure or loophole can just be expressly forbidden by the contract.

          • The contract cannot possibly forbid the use of such sites, since you use the site before you sign the contract. Contracts cannot constrain actions which occur before they go into effect.

            Now, you could in principle sign a contract in which you swear never to evaluate future contracts, but that would be pretty stupid, and presumably anyone using a standard contract-rating site to evaluate contracts would never sign a contract of of that sort.

          • Peng says:

            Ano’s point is, there wouldn’t be anyone in a position to post “Accidentally sold myself into slavery. Would not sign again.” because everyone who got tricked would be forbidden from uploading a negative rating. So even the people who did conscientiously check the ratings before signing, would only find misinformation.

        • Caspian says:

          Clark at Popehat talks about specifying rules in contracts versus specifying them in law analogising the law to reusing a software library or operating system rather than writing everything from scratch each time. Also advocates having a choice of a few different “legal operating systems”.

          These could have something in between the force of compulsory law and newly-written contracts – by being few in number and accumulating tradition and reputation, they could be less likely to contain surprising parts (such as the slavery thing), so there’d be less need for everyone to read them.

          A government could authorise something like this even without being willing to get rid of its nation-wide law or allowing full freedom of contract.

  2. calef says:

    I would be okay with this argument if this were actually just a two player game (i.e., you, and the suicidal person). But suicidal people often do dumb things, like drive into oncoming traffic (potentially killing others), or actually successfully kill themselves (emotionally scarring their loved ones).

    • Scott Alexander says:

      I have no sympathy for people who do this after trying to kill someone else. But most suicide attempts are pill overdoses or something. As for other people, I sympathize with them, but I worry about the general principle of not letting people control their own lives because other people might be sad. My parents would be sad if I killed myself. They’d also be sad if I worked a crappy job instead of living up to my full potential. Should we ban the latter?

      • Deiseach says:

        The trouble I foresee with this is:

        You: “Sign this contract waivng your rights to sue and I’ll let you go home”

        Patient “No problem, lend me a pen!”

        Patient goes home and ‘falls’* off a cliff.

        (a) Family sues your backside off anyway, because *they* didn’t sign any contracts with you waiving their rights
        (b) Lawyer says “You took advantage of someone not in their right mind/unable to make rational decisions, such contracts are not enforceable”
        (c) If contracts waiving rights like this are valid and enforceable, then mentally ill people can enter into any kinds of contracts, so people with mental problems who blow every penny they possess by being cheated by scam artists or investing in sure-fire get-rich-quick schemes or buying all the tat advertised on infomercials when they’re manic or incapable of making reasonable choices are going to be taken advantage of, their families will have no redress, and when Joe Smith and his eight-months pregnant wife and their crippled son Tiny Tim and his three-legged pet puppy are evicted barefoot in the snow** because Joe spent all the rent and food money on shares to mine unobtainium on the Moon, it will be *your* fault because you as a mental health professional said crazy people could enter into valid and binding contracts.

        I hope you can live with yourself!

        *This was how a cousin of mine killed himself. Death was put down as accident but – nah. All our side of the family were reared in that area, we knew the risks (how crumbly the cliff edge was, the slipperiness of the terrain under weather condition, how close you could safely go to the edge and so on), there’s no plausible way he could have just “oops, I unknowingly went too close to the edge there and slipped”. Besides, he had various problems in his life at the time contributing to stress etc. Probably the coroner’s inquiry meant to be compassionate to the family, but we knew the truth of it.

        ** This is the kind of thing we in social housing have to be *very* careful about when evicting non-compliant tenants, because the first thing they’ll do is get on the phone to the local radio station about how the cruel heartless council is throwing them out of their family home when their fifteen year old daughter has been seduced and abandoned and is expecting their first grandchild, Granny is dying of a horrible lurgy, Dad has been laid off without a penny after working 18 hours a day down the treacle mine, and their one-eyed kitty cat which is their poor sickly little toddler’s only comfort and joy is racking up the vet’s bills and yet we are hounding them for measly arrears of rent under these harsh circumstances – oh the humanity!

        • Lesser Bull says:

          What would be helpful if we didn’t have to have a general rule that says you are either competent or not. Then you could have a court say that this contract is an instance of a class of contracts that would be reasonable for a mentally ill person to make, so its enforceable. Other contracts, not so much. The courts still do that informally, but they don’t formally, so its not predictable enough or reliable enough. Another sensible option would be something like a guardian ad medicam, a court-appointed expert who can review contracts and approve them or not. I say ‘ad medicam,’ not ‘ad mentallyillem,’ because the same option would be nice for risky interventions for people who are sick. I had a very close relative with bad cancer and there were a couple of different experimental treatments that the docs were interested in but the patient didn’t quite meet the standard protocol guidelines. The docs never quite came out and said it, they hemmed and hawed about it, but they pretty much told us that it would be technically possible to do the treatment anyway, but they wouldn’t because there was no way for us survivors to agree not to sue them if something went wrong, which was a real possibility.

          • Deiseach says:

            I’m sympathetic to Scott’s position, it’s tough when he’s faced with either forcing someone into treatment they don’t want (and that may even affect them adversely – the employment being affected by involuntary absence is a very real threat) or letting someone who’s made an attempt to end their life go home.

            Thing is, if the position is “It is my professional opinion that you should be committed involuntarily because you are at risk of making very bad decisions re: your life and health due to your current mental state” – that is, the person is not able to make a proper use of their reason – how then can you say “But otherwise I think you’re perfectly competent to use your reason”?

            If it were a choice between “Mr Smith is severely depressed and has made efforts to harm himself, but otherwise he knows there is no hope of unobtainium mines on the moon, so you can trust him with his own finances”, that’s one thing. But we’re talking about a specific situation where Mr Smith is being asked to have treatment to help him stop harming himself, where he has already demonstrated he wants to harm himself, and in that instance you do have to consider that his ability to be impartial in his own cause is affected.

          • Peng says:

            > if the position is “It is my professional opinion that you should be committed involuntarily because you are at risk of making very bad decisions […]”

            Then sure, you commit them.

            Scott’s proposal is for cases where the doctor’s actual opinion is that the patient is safe enough (and/or commitment is harmful enough) that sending them home is an expected net benefit to the patient, but where (due to current liability laws) it’s net harmful to the doctor. So the doctor is incentivized to report “professional opinions” that are actually contrary to their best estimate of the patient’s interests.

    • Nikias The Random Blog Commenter says:

      What about suicidal people who never agreed to have loved ones?

      As for driving into traffic, what percentage of that would be prevented by the availability of less coercive treatments, or less painful suicide methods (barbiturates)?

      Bans are violence, so I’d expect counterviolence.

      • Deiseach says:

        I don’t know if barbituates would have prevented this suicide.

        I admit, I never can understand the people who go on shooting sprees and the like before turning the gun on themselves. You want to commit suicide, why deliberately take other people with you?

        • I don’t think that taking other people with them is a new idea for people like that. Maybe these are things they always would have wanted to do, but refrained because there are consequences that they wanted to avoid. If they get into a state where they don’t believe in consequences any more because they plan to kill themselves shortly, they go do those other things first.

          • Sasquire says:

            I have a half-baked idea on why these people could choose to go on a shooting spree that doesn’t involve an unsuppressed desire, including revenge: courage. Any suicidal person with a gun can aim the gun at their head and contemplate pulling the trigger, but the decision to pull the trigger is different from the act of actually doing it – “Am I aiming in the right place?” “Will the bullet do the job?” “Will I die the moment I pull the trigger?” – are all sorts of questions that might be on their mind, and this is in the foreground of the numerous things the body does to keep itself alive in dangerous situations, even the abstract knowledge of the attempt could produce an emotional reaction strong enough to turn them away.

            But they still want to do it. So instead they can use the gun to put themselves in the right state of mind to actually do it, or they may actually believe that they can provoke the law into doing it for them.

  3. libra says:

    Actually, I want to be even more evil than that.


    But really, does this generalize? What other sorts of rights should folks maybe be able to sign away but can’t now?

    • Anthony says:

      All sorts of rights to sue. The right to go to court instead of arbitration. (Both of these are in legal limbo, as the courts are not terribly inclined to honor the contracts of people deliberately trying to avoid the courts.)

      Certain sorts of non-compete clauses are illegal in California, but not most other states.

      Most prenuptial agreements are on very shaky legal ground, though they mostly consist of signing away certain rights.

      • Will says:

        My health insurance provider forces me to consent to a binding arbitration clause as a requirement of coverage, so they at least think that it is a right you can sign away. Its also something of a coerced choice, because the alternative is to forgo the group health plan.

        • Anonymous says:

          You can write a contract saying anything. This just shows that they think it makes you less likely to sue, not necessarily that the courts will care if you actually do sue.

          • Protagoras says:

            That’s true. I understand that leases are commonly full of provisions that violate local laws about what landlords are allowed to do and so are unenforceable, which are presumably there because landlords count on tenants not knowing that. Trying to get people to agree to legally unenforceable contracts should probably also be illegal, as it does seem to constitute some kind of fraud.

      • Ted K. says:

        This is mostly incorrect as a statement of current US law. Arbitration clauses have been universally upheld in recent years. See, for example, the Supreme Court’s decision in AT&T v. Concepcion, which held that arbitration clauses in form contracts signed by cell phone customers were valid even though that would make it effectively impossible for the customers to sue, since arbitration generally doesn’t allow class action suits and the damages to each customer were too small to be worth it.

        Prenuptial agreements are also fairly strong despite common claims otherwise on the internet. Almost every case where a prenup has been thrown out is a result of either (a) failure to disclose certain assets before signing the prenup; (b) outright fraud; (c) or the introduction of the prenup very shortly before the wedding, which courts tend to view as result in undue pressure. If each party is honest and has a competent lawyer, prenups are pretty airtight.

        The law on non-complete clauses does vary a lot from state to state, but really, unless you’re taking a hardline position that all contracts should be valid, what possible benefit is there in allowing Jimmy John’s to stop minimum wage fast food workers from working at Subway after they leave?

        • Anonymous says:

          While it is true that Subway demands noncompete agreements, that isn’t the typical example of how CA differs from other states.

        • Anonymous says:

          A completely different example of a thrown-out prenup is given in a theviewfromhell post linked elsewhere in these comments: an adultery penalty is unacceptable in a no fault divorce state. (well, actually, it was a postnup, but the reasoning made no distinction)

    • Anonymous says:

      Marriage is best understood as signing away your right to dump someone. Most civilizations in history have considered this a good thing.

      • call_me_aka says:

        Ooh, yes, thank you! I was hoping for an example that cut against grey sensibilities. I’d be really interested to see how Scott can square this proposal with a defense of e.g. polyamory. As far as I can tell most liberal polyamory is premised on the idea that autonomy is paramount and relationships ought to be elective in a fundamental way.

        • blacktrance says:

          What’s the contradiction? One can say that these kinds of contracts should be available and enforced, but also that it’s (at least usually) a bad idea to enter into them, and that staying in elective relationships and maintaining your autonomy is better.

          • call_me_aka says:

            One can indeed, if one treats autonomy like a normal good that can be reasonably forfeited under some circumstances, but it functions more like a sacred value/right.

        • RCF says:

          Do you think that Scott would be okay with someone engaging in polyamory without the permission of their spouse? I don’t think that most liberal polyamory is premised on autonomy being paramount, it’s based on people being allowed to choose what sort of limitations they want on their autonomy, without being coerced by other people or society.

          • call_me_aka says:

            No, he would say that someone who wants to engage in polyamory should find an amenable partner. Most of the polyamorous people I know have positive beliefs that people shouldn’t “hog” their partners, that wanting a lifelong pair bond might not be so healthy, that relationships should be radically elective and constantly re-evaluated and re-chosen, etc. It’s not that you get to do things without other people’s consent, but that consent is such a high priority that people start to think they’re being “coerced” into things they otherwise wouldn’t have thought to object to. In domains where the overall sum of each person “rationally” doing their own thing is negative, that’s a bad thing.

      • Anonymous says:

        “Marriage is best understood as signing away your right to dump someone.”

        That’s not capturing the most important aspect of marriage. Because for most of marriage’s history, there were some veerrryyy nasty things that happened to people who decided to eschew it! It’s not a “voluntary” thing throughout most of history, it’s what you basically have to do if you want to have sex without potentially severe recriminations on you, your sexual partner, and your offspring.

        Marriage is best understood as an attempt, until recently quite successful, to control people’s sexuality. Only recently has it been anything like a freely taken “choice,” and as a result more and more people are eschewing it. It was never primarily about the relationship between the two individuals – it was about the relationship between sexual partners and society at large.

        • call_me_aka says:

          No, it’s best understood as an attempt, until recently quite obviously necessary, to regulate the reproductive possibilities of straight sex. It’s true, it was never primarily about the relationship between the two individuals–it was about the relationship between sexual partners and their offspring.

          it’s what you basically have to do if you want to have sex without potentially severe recriminations on you, your sexual partner, and your offspring

          Yeah, but you could still opt out.

        • As call_me_aka also alluded to, there has never really been a requirement to marry in any culture that I’m aware of. Very many cultures have formal roles for unmarried, whether it be some form of monasticism, third-gender, lifelong military service, etc., and those which lacked formal roles for the permanently unmarried nonetheless usually allowed for eccentric bachelors/spinsters.

          Now, having a sexual relationship without marriage was often much more problematic, but also as noted by call_me_aka this mostly had to do with regulating reproduction.

          • Illuminati Initiate says:

            For men, yeah, being unmarried was not so bad. But in many cultures woman who refused to get married were utterly screwed over.

          • You should name names. In the historical cultures that come most readily to my mind, the situations were roughly equivalent, so I’m not sure that I believe you.

          • Illuminati Initiate says:

            Warning: I’m not a historian, I may well be wrong about these and you can correct me if you have better information.

            In some parts of the middle east to this day there are many, restrictions on unmarried women. The most famous examples of this are in Saudi Arabia (though guardians can also be brothers and fathers).

            In cultures that have forced marriages, the consequences of attempting to leave can be fatal, and women who fled would end up in severe poverty. Today this usually happens in the Middle East and both North and Sub-Saharan Africa, but it would have been much more widespread historically.

            (Edit: this is the part that makes it the rule rather than the exception. It occurs to me that the other two are probably non-central examples) . Even more commonly, the career options open to women were just very restricted, which makes it more difficult to make a living without a husband. This was so widespread I don’t think I even need to mention specifics. Though it occurs to me that this is not really a direct penalty to not marrying as much as a result of general sexism, as married women would also be barred from the same options.

            Though actually now that I think about this, the forced pregnancy with high childbirth death-rates that came with marriage in many of these cases make it look more like married women were the screwed ones (no pun intended), not the other way around.

          • By getting down to object-level details I think we mostly agree on the facts, but we disagree on what they mean.

            In the first place, we shouldn’t overlook monasticism, which was an attractive option available only to unmarried women. It was often the case that conditions in a monastery were superior to those elsewhere, and going to a monastery was certainly not “getting screwed” in any sense. (I’m mostly familiar with Christian monasticism, but AFAIK the same is largely true of Buddhist monasticism.)

            Aside from that, the word “career” in your response is pulling a lot of weight, because it presupposes a modern range of economic choices. But almost no one in premodern societies had “career options”; your career was given to you by your birth, and the “career” of a spinster aunt was not obviously worse than the “career” of a wife and mother.

          • Nornagest says:

            Though it occurs to me that this is not really a direct penalty to not marrying as much as a result of general sexism, as married women would also be barred from the same options.

            There were some interesting loopholes around this in the later Middle Ages — skilled trades were in most places monopolized by guilds, and guild rules (which tended to be bizarrely, fantastically restrictive by modern standards) generally barred women from joining directly, but it wasn’t uncommon for the widow of a guild member to be allowed to continue to practice. The sources we have are light on justifications, but reading between the lines I gather that she’d have been expected to have learned the skills from her spouse, and to have contributed actively.

          • haishan says:

            going to a monastery was certainly not “getting screwed” in any sense.

            ‘Cept by Jesus!

          • Nornagest says:

            That’s not what “bride of Christ” means, Channon.

        • Anonymous says:

          Marriage is best understood as an attempt, until recently quite successful, to control people’s sexuality.

          I think is one aspect (call_me_aka accurately describes why it’s not the best single descriptor). Regardless, it’s a good case study for how one views the relationship between individual choices and social structures. Generally, the latter flows from the former. Have you been in a non-marital relationship where either you or your partner thought, “Part of this relationship is the idea that we’re each constraining our sexuality, namely in the direction of each other rather than outward”? Have you ever encountered someone who has suffered a breach of this protocol, even prior to or otherwise outside of a marriage? If so, then it’s pretty easy to understand how a codification of marital sexual controls came to occur.

          Like most social structures, marriage was created from the inside, not by a conspiracy of oppressors in a back room somewhere. It is a result of a long-negotiated agreement to give up certain amounts of sexual autonomy for other benefits. This negotiation may have come out one-sided for a host of reasons (refer back to Scott’s post about the one-sidedness of his negotiations), but that’s a very different perspective than the one you have presented.

      • Nornagest says:

        I find the references to poly people in that argument to be a little on the inexplicable side. Sure, poly arrangements existed when no-fault divorce laws were being put into effect — I imagine they probably always have — but they definitely weren’t on the public radar at the time, except perhaps as something that those weird-ass pinko hippies do, and in most ways that matter they still aren’t. From a legal or practical standpoint, too, the issue of how many people you can commit to at a time seems to be independent in most ways from the issue of how credible you can make the commitment.

        If I were reading some random blog post I’d probably assume that the author views contractually binding permanent monogamous relationships as a privileged category and any deviation therefrom as basically equivalent, but I thought Sister Y was smarter than that.

        • call_me_aka says:

          Yeah, those references are a little weird, but in fairness, the average polyamorous person has a richer philosophy than “I want a regular ol’ marriage only with more than one person”, and more likely than not that philosophy looks something like “I am radically open to ad hoc or fluid arrangements because people change and I believe that they should feel empowered to enter and leave relationships at will and on their own terms.” Which doesn’t really square with placing substantive restrictions on your future self.

    • Leonard says:

      Here’s a specific example of something that is limited by the inability to waive the right to sue: rock climbing. There are many crags and cliffs that are privately owned. However, in general the landowners of all private land absolutely forbid climbing, because of the fear of lawsuit. One might think that you could just go to the owner and sign a contract saying “yes I really really do know the risks and I absolve the landowner from any liability if I screw up or get unlucky”. But this is not possible in most (all? not sure) states. Some landowners allow climbing anyway, especially individuals without deep pockets. But large owners practically never do.

      As a result, many cliffs are off limits to climbers. Some climbers go and ninja-climb anyway, and a lot of owners probably turn a blind eye. But this is not optimal.

      To route around the damage, there is a climber charity called the Access Fund. Their basic MO is to work with private landowners to buy land and then transfer it to government ownership. (You cannot sue the government if you kill or injure yourself on their land, because of the doctrine of sovereign immunity.)

      • B_For_Bandana says:

        > “One might think that you could just go to the owner and sign a contract saying ‘yes I really really do know the risks and I absolve the landowner from any liability if I screw up or get unlucky.'”

        > “As a result, many cliffs are off limits to climbers. Some climbers go and ninja-climb anyway, and a lot of owners probably turn a blind eye. But this is not optimal.”

        I don’t know, ninja-climbing seems like it is de facto exactly the same as signing a liability waiver. In a case where a ninja climber falls, gets injured and sues the landowner, the legal system would look at that and say, “you were trespassing, that’s not the owner’s fault, sorry, no money.” And if this is mutually understood by both landowners and climbers, then when a climber trespasses with the owner’s tacit permission, they are effectively agreeing to a no-litigation contract, despite never laying eyes on one another or calling any lawyers, which is actually a pretty neat example of Platonic acausal bargaining.

        This doesn’t help Scott because hospitals are probably expected to do a much better job at keeping psych patients in, than owners of random tracts of wilderness are expected to keep trespassers out. So if he accidentally on purpose let someone leave, he would still be liable.

        • Anonymous says:

          The problem is that the organization that buys land and gives it the government for climbing can’t buy the land and keep it for climbing. If purpose of the land is climbing, it can’t claim that everyone is trespassing. Whereas, if the owner lives on the land, there is plausible deniability. The worst part is that the climbing organization cannot improve cliff, making it safer but still dangerous, without appearing to endorse the climbing and thus take on the risk.

        • Deiseach says:

          If I’m remembering my long-distant business law classes from my secretarial course, trespassers can sue if they are injured. The instance we were given was of a teenager who climbed over fences into a building site, fell through a roof and received spinal injuries that left him wheelchair bound. The company was sued for damages on the basis that the site was dangerous and they didn’t do enough to secure it (even though he was trespassing and it was fenced off). (He has since gone on to have a successful career in Irish politics).

          So you’re a landowner with dangerous cliffs or crags on your property, you have a duty to warn people off and if someone sneaks onto your land anyway, climbs, has a fall, they can still sue and win if it’s judged you didn’t do enough to make the area inaccessible.

        • I know someone whose housing co-op was sued because a man died swimming in an abandoned quarry on the property. The fact that he’d snuck there to go swimming didn’t prevent the lawsuit from happening.

          The suit was eventually decided in favor of the co-op, but lawsuits are very expensive even if you win.

  4. Eurobubba says:

    Conversely, I often think there needs to be a fundamental right to change one’s mind, i.e. to repudiate any contract (with appropriate penalties if need be).

    • Randy M says:

      But in the example at hand, the patient has no right to make up their mind in the first place!
      If they had the option to forswear suing, then at least they would have the right to make the initial choice, rather than none.

    • Anonymous says:

      People do have a pretty broad right to repudiate contracts. Contracts are usually of the form X does A in return for Y doing B. The natural penalty for failure is to undo the other side. You can write in other penalties, but the court can throw them out as unreasonable. If the contract simply says X does A, in return for nothing, it is unenforceable.

      Do you have a particular example in mind?

      • Viliam Búr says:

        Contracts are usually of the form X does A in return for Y doing B. The natural penalty for failure is to undo the other side.

        How could insurance work under such system?

        I agree to give you $1.000.000 if your house burns down, and in return you agree to give me $100 every month.

        Your house burns down next month. I say “screw you”. Judge orders me to return you the $100. Is that all?

        • LRS says:

          Good question. In the US legal system, when a party to a contract breaches the contract, the other party is entitled to damages. The precise way to measure those damages varies from case to case based on the particular facts and circumstances surrounding a given contract.

          In some situations, the parent comment’s “undo the other side” remedy, which is called restitution, the right measure of damages. In your example, if I had changed my mind before your house burned down and backed out of the contract, restitution would probably be the appropriate remedy and you would only get your $100 back. I suspect the parent comment was using the technical legal sense of the term “repudiate,” where the correct remedy is frequently restitution.

          In other situations, like your hypothetical, the proper measure of damages is what’s called the expectation interest, which is the amount necessary to put the nonbreaching party in the same position as he would have been in if the breaching party had performed. In your hypothetical, you would be awarded $1M because that is the amount you fairly expected to benefit from the bargain.

          I’m glossing over a lot of this because the measure of damages for breach of contract can be a pretty complex subject, but in general you need not fear the terrible situation you described.

        • Anonymous says:

          You can repudiate your promise of action; you cannot repudiate your promise of money. And the penalties are generally in the form of money. The point is not to let people break promises at will, but to funnel all enforcement into a single fungible commodity.

          Actually, I was probably wrong to say that you undo the action. If it is already done, it is probably almost never undone, except repossession. And the main point of repossession is that the value of the item repossessed is appropriate, not symmetry. The value is appropriate and you don’t have to worry about whether the possessor has other assets.

          • Richard Gadsden says:

            “Specific performance” is the rare exception to this. It’s really really unusual; you usually just have damages. The usual exception is in contracts for goods where the goods are unique in character (so, I contract to buy a painting, you have to deliver the specific painting once I’ve paid) or are land (since I can’t go out and spend the same money on a different bit of land).

    • LRS says:

      In the US, at least, this right does in fact exist and is fundamental to the law of contracts. A contract is an agreement to perform or pay damages. Your “appropriate penalties” are damages for breach of contract.

      • suntzuanime says:

        I think this is a still a little controversial, whether it’s actually a free choice or if it’s an ethical responsibility that merely carries a punishment for failure. You can google “efficient breach doctrine” if you want to find people arguing about it.

  5. Dan says:

    If psychiatric patients were allowed to waive their right to sue, then I suspect that it wouldn’t be long before psychiatric hospitals made waiving your right to sue part of the standard (semi-)required process for being released from the hospital. (Or even for being admitted, or for being treated.)

    I say “(semi-)required” because it might be possible for a patient to make it through an interaction with the hospital without waiving that right, especially if the law only allowed waiving the right to sue under certain narrow circumstances, but presumably the hospital would do what it could to make retaining the right inconvenient enough so that relatively few patients actually did it.

    Broader point: it’s possible to optimize for every particular case (e.g., the person who has a really really good reason to want to get out of the psych ward immediately), because if you change the rules to make it possible to optimize one particular case, the rule change also changes the whole game.

    • Anonymous says:

      I thought something similar to this also. I don’t think we live in a perfect utopia at present by any means, but allowing people to legally waive major rights, especially people who may be unbalanced or unwell, seems *extremely* problematic in pretty much any context I can think of offhand, and this is far from the worst.

      Sometimes there are undesireable circumstances such as this that have no real good/obvious solution, and all that’s possible is to pick from the bad ones…

      • caryatis says:

        I think legally waiving major rights is more common than you think. Every plea bargain means waiving the right to due process. The right to sue is often waived, as is the right to refuse a search or refuse to talk to police.

        I also think that there are good reasons to allow freedom of contract even for the mentally ill (a huge category). Having made a suicide attempt might make a person subject to involuntary commitment, but it doesn’t show that person is incapable of making any rational decisions.

    • JRM says:

      Right, exactly this. You make this OK, every single hospital has a no-malpractice lawsuit rule. Sign, or don’t and enjoy the nice street outside.

      Let’s take the rule in my profession: Lawyers can’t have a no-suing-me-for-malpractice clause in their contracts. Why? Because if you screw up hard enough and irritate your client, you get hit. As it should be.

      Doctors virtually never lose their personal assets in lawsuits. You’ve got malpractice insurance. It covers terrible things you do. And every error is not a valid lawsuit. (And ideally, your carrier will be bitey about it if someone sues with a poor reason.)

      Further, if you are employed by, say, a hospital, the hospital is on the hook for how terrible you are. They also have assets that are greater than your 1994 Toyota Tercel. Personal worry as far as actually getting scratched in a suit is misplaced.

      But a lawsuit is a serious headache, because you have to deal with lawyers. I get that, for sure.

      Anyway, back to the point: It is really hard to justify a no-suit rule for mentally ill people. I think this is just a disaster.

      Finally, this is outside my area of expertise, but I might sell this harder to the patients so they don’t feel like they have options. (I recognize that the story may be lightly edited for our amusement; your storytelling skills are great. So this is based on the story version above.) Options create stress. Perception that you can talk your way out of it will lead to efforts to talk your way out of it. If they’re getting committed, period, show strength, tell them there are no other legal options, and hold ’em.

      But that’s just my opinion. I could be wrong.

    • Jaskologist says:

      I agree. To me, the problem here doesn’t seem to be with contract law, it’s that you can sue another person for things you did to yourself. If you had checked yourself into the hospital for a suicide watch, I could see that, but otherwise you are responsible for your own actions; they don’t become somebody else’s fault just because you’re crazy. Sure you weren’t in your right mind, but it’s still your mind, not your doctor’s.

      Admittedly, I don’t have much experience with the mentally ill.

  6. galin says:

    We could also just make it illegal to commit people involuntarily, then you wouldn’t have a responsibility to do it.

    Seriously, though, involuntary commitment rests on the premise that the suicidal person isn’t competent enough to choose “treatment”, and you want people to accept that they’re competent enough to sign contracts waiving away future rights?

    I put “treatment” in scare quotes because I’ve known several (okay, two) depressed but not actually suicidal people who were involuntarily committed and their three- or four-day stays in the hospital fell somewhere between “giant useless waste of money” and “actually destabilizing and counterproductive”. They’re cut off from the outside world, doctors check in on them for five minutes a day, they feel completely powerless to change anything about their situation, and they’re surrounded by actually crazy people who may or may not be hostile. Scott, can you explain why you *want* to commit them?

    This is all object-level stuff… sorry, y’all.

    • Mary says:

      That’s not going to happen. When you are perfectly capable of murdering total strangers under the delusion they are plotting to kill you, you are getting locked up. Somehow.

      • Nita says:

        The thread so far seems to be about suicidal ideation and self-harm, not murderous psychosis.

        • Mary says:

          1. The proposed cure was “We could also just make it illegal to commit people involuntarily,” which would indeed include murderous psychosis.

          2. Note that suicide attempts can be dangerous to others, too. The auto “accident” for instance.

        • Deiseach says:

          That’s part of the problem, though: if you permit someone who has already tried to harm themselves to waive their right to sue on the grounds that they are otherwise capable of acting reasonably, how can you keep it confined to that? Why let a suicide risk go home and avoid involuntary committal and deny it to (say) a schizophrenic who is not suicidal?

          One of our social housing tenants suffers from paranoid schizophrenia. They were able to get themselves washed and dressed, get public transport from where they were living to where our offices are, able to know and remember who they needed to speak to, and able to make a request in a functional manner (they weren’t ranting and raving and frothing at the mouth, though they did exhibit very rapid and a little disconnected speech, and obviously heading towards an episode).

          That request being that we change the locks because the neighbours (not any specific neighbours, just a general them) were taking their door keys and getting into their house. This is generally the form their paranoia takes, and we generally send some guys out to change the locks just to reassure them and give them peace of mind because it’s only small hassle for us but saves them from worry and stress.

          In a full-blown episode, we get tales of ‘the neighbours’ getting into the house with the stolen keys and smearing chocolate muffins on the walls. Yeah, that sounds funny to read but in reality it’s not funny at all when someone is as out of it as that. Other times, ‘the neighbours’ are getting into the house while they are in the shower and they hear them laughing and talking about them. Also, in a full-blown episode, we get multiple calls per day about ‘the neighbours’ getting into the house, ripping up clothing, etc., even when our tenant is having a hospital stay.

          Do you refuse to offer this person the ‘waive your rights and go home’ contract? On what grounds? As I’ve said, they were functional (able to present themselves clean and properly dressed, able to know what bus to take and purchase a ticket, able to find the right department etc.) and not suicidal. So what if they were talking about neighbours stealing their keys, why should that affect their right to waive their rights?

          “Oh yeah, but they’re obviously crazy!” And what about the person who took too many pills ‘by accident’ or ‘oops I went too near the edge and slipped’?

  7. Crimson Wool says:

    And this is why you never, ever admit to having self-harmed. Tried to blow out your brains? Accident while cleaning your gun. Overdosed on pills? Was sleepy and thought they were candy (“REALLY sleepy”). Climbed over the fence over the freeway and jumped off? Just wanted to see if you could stand on top and lost your balance. Tried to hang yourself? You were experimenting with that autoerotic asphyxiation thing and accidentally knocked over the chair while trying to pull your pants down.

    • caryatis says:

      Could not agree more. Unless you WANT to be committed, there’s no reason to tell a doctor you ever had suicidal thoughts.

      • galin says:

        Some people have this radical idea that the doctor might be able to help with those feelings.

        • caryatis says:

          Right, if you think commitment will help, then go for it. But depressive and suicidal feelings are relatively common. In my opinion, institutional treatment is only worth it for the very most severe depression, if that.

          • galin says:

            I can’t tell whether you’re being serious… but sometimes people need help dealing with feelings without it ruining their lives at least temporarily.

          • caryatis says:

            I’m being serious. I’m not sure what you mean. You seem to be saying that mental health treatment can be helpful. Sure. But it also has real costs, especially when “it” is involuntary institutionalization.

            Wait–reading your comment above, I’m guessing you mean that you want people to be able to talk about suicidal thoughts without being hospitalized?

          • galin says:

            Hum, those two sentences after “go for it” weren’t there when I posted the earlier comments.

          • gattsuru says:

            I’d consider trying to gargle bullets among the very most severe depression, almost as a tautology.

          • Matthew says:

            But depressive and suicidal feelings are relatively common.

            The second half of this conjunction struck me as very unlikely, so I googled “incidence suicidal ideation” and immediately got this.

            The 3-year incidence of suicidal ideation and suicide attempts was 2.7% and 0.9%, respectively.

            Do you consider 2.7% to be “relatively common”?

          • anon1 says:

            2.7% seems so implausibly low that I can’t believe this is more meaningful than another edition of “people lie on surveys.” Or maybe the survey having some really strict definition, like requiring an immediate plan and desire to act on it. Seriously, how can any human not think about killing themselve now and then?

          • Matthew says:

            Seriously, how can any human not think about killing themselve now and then?

            That right there is possibly the most extreme example of the Typical Mind Fallacy I’ve ever seen in the wild.

            There are plenty of people who’ve never entertained thoughts of suicide.

          • suntzuanime says:

            I remember in my middleschool health class they were talking about how if you were thinking about suicide you should get help, and I pointed out that everybody in the class was thinking about suicide because we’d been talking about it all class period.

            I was kind of a little shit back then.

          • anon1 says:

            I mean, I know that there exist people who never think of suicide as a possibility. I’ve read their comments on blogs, and I’ve even talked to a couple. I just can’t alieve it – it’s too staggeringly implausible. Certainly all the close friends I’ve ever had think about suicide now and then. (Selection bias – I’m kind of a downer, so if you’re not a bit depressed yourself you probably won’t want to hang out with me.)

          • Matthew says:

            I don’t think the relevant inferential distance is people who get depressed v. people who don’t. I think depression (episodically, not lifelong) is something that is experienced by a large proportion of the population.

            Where I think you’re going astray is assuming that being depressed inevitably leads to suicidal ideation. This is not a universal.

          • anon1 says:

            I don’t actually think that all depressed people think about suicide. I also do think that some non-depressed people think about suicide. It is just that I can’t alieve that there are people who don’t think about suicide, and maybe also that I can’t alieve that there are people who aren’t always at least gloomy if not depressed. Just like I can’t alieve that there are people who like the taste of mayonnaise even though I have seen people voluntarily put it on their food.

            Hmm. I can tell I’m being conspicuously not very sane here. I wonder if that means this place has gotten social enough for me that I should pick something more name-like for myself.

          • Auroch says:

            One of those generic anecdotes about depression and suicide is this: A patient goes to therapy and says “Yeah, I’m depressed, it’s interfering with my life, I’d like help, ” etc. The therapist asks several questions, one of which is “Do you ever think of committing suicide?” The patient responds “Oh, not really, no more than the usual amount, I guess.” And the therapist replies “The ‘usual amount’ is pretty much zero!

            Suicidal ideation is rare, but pretty much always comes with a huge dose of typical mind. Nearly everyone with suicidal thoughts feels like those thoughts are universally common; this is not at all true.

            Or in short: The 2.7% number is basically accurate.

          • Luke Somers says:

            > Seriously, how can any human not think about killing themselve now and then?

            The notion crossed my mind once or twice this year, in a traveling circus (‘I’m about as likely to do that as jump off a cliff’).

            When I was a kid, I had to deal with it a little bit more often while I was navigating my way through the construction of my personal existential framework. It was never ‘I should go kill myself’, but ‘I observe that I don’t want to kill myself. Why is that, and are those reasons valid?’; the answer to the latter question was ‘yes’. I haven’t revisited that seriously since I was 8 or so.

          • Lalartu says:

            For Netherlands? Maybe. Suicide rate is vastly different in various countries, and so probably is suicidal ideation.

          • Stuart Armstrong says:

            Back when I was depressed, I had suicidal ideation quite frequently – and felt it was normal. Now that depression seems to be gone, I don’t have that ideation any more. At all.

          • Illuminati Initiate says:

            I think there might be some confusion here between thinking about suicide and actual suicide ideation. I imagine that plenty of people have had thoughts about suicide and what would happen if they did it, without actually wanting to kill themselves. I have suffered from something called intrusive thoughts and thought about killing myself alot, but it wasn’t real suicide ideation, I never wanted to kill myself.

          • caryatis says:

            The 2.7% Dutch number is “3-year incidence.” A British study found 2.3% annual incidence. (using the question “Have you ever thought of taking your life, even if you would not really do it?”) This is something that likely varies by nationality. The lifetime prevalence is likely much higher.


            Even with that caveat, I also find the numbers hard to believe, because 1) no way of knowing whether respondents are telling the truth about a touchy subject and 2) it’s counterintuitive that even most depressed people don’t think about suicide. But I may be more pessimistic than the average person–even when happy I often think about worst-case scenarios.

      • Anonymous says:

        I told a doctor I had suicidal thoughts and didn’t get committed.

        I thought I was depressed. Her diagnosis was OCD with obsessive suicidal ideation.

    • Morvkala says:

      Yeah. This combination of doctors having no ability to let people leave, and people paying for their own mandatory hospitalization is costing suicidal people a lot by forcing them to stay silent. I was in a psych hospital for a month, but wasn’t in the states so paying for it didn’t ruin my life after I got out. If I WAS there, I wouldn’t tell any medical professional I wanted to kill myself or how depressed I am regardless of my intentions just so the doctor wouldn’t get put in this situation. It’s amazing anyone does talk about it at all really.

      I’d also like to see doctor assisted suicide normalized so people who have made up their minds have a better option. (Regarding not requiring that the suicide rate go to 0 at any cost)

    • Anonymous says:

      100% agreed. Lying to doctors is an important skill to have if you don’t want to get sectioned. If I’m contemplating topping myself, telling a doctor is tantamount to committing to not doing it—but if I’m on the fence, that precisely means I’m not willing to commit one way or the other.

      (Conversely, if I thought the looney wagon was parked outside my front door, that might be enough to tip the balance the other way. I really doubt I’d get out the other end alive, and spending years on a psychiatric ward is a hellish thought.)

      • caryatis says:

        I don’t know where you live, but if it’s any comfort, in the U.S. most people who are involuntarily committed get out pretty quick–as in weeks, not years.

        • galin says:

          In most states, there is a 72-hour waiting period for acute suicidality and they can only keep you beyond that with a court order. The trick is that sometimes they’ll interpret that to mean “three court days”–a friend of mine got admitted the Friday before MLK day, so they didn’t get out till Thursday, but mostly they don’t try to keep you if you grit your teeth and tell them you’ve seen the light.

  8. Randy M says:

    I wonder if you can get meta/Beyes-ish on it? Say we allow for doctors to be wrong 5% of the time. Then have judges throw out suits if that doctor has been right at least 95% of the time.

    • caryatis says:

      Then you would have to have a trial on at least 95% of the doctor’s previous decisions. Much harder and more uncertain than judging the one decision at issue.

      • Randy M says:

        Surely you can look at a record of released patients who killed themselves within a certain period of time?
        The question of malpractice is bigger than that of merely whether the doctor was right or wrong in the course of his treatment (which is easier to discern in hindsight).
        Or at least it should be.

        • caryatis says:

          I’m not sure if hospitals track released patients that closely. And if a doctor doesn’t see many suicidal patients, then you couldn’t get a reliable percentage of correct decisions even if you had data on patients.

          • Randy M says:

            Well, I’m just thinking out loud here, no brilliant ideas necessarily. But it does bring to mind a joke. In a certain city, there was a law that doctors had to fly a balloon outside their door for every patient they lost. A new comer to town got injured and was looking for a doctor he could trust when a local told him about this custom. He first found a doctor with 10 balloons, and hurried on his way. The next doctor he passed had 15 balloons, “Even worse!” he thought. Finally he found a doctor with just three balloons flying, and thought, “I like those odds better,” and went in to make an appointment. The doctor told him he would try to fit him in, but “who knew I’d be this busy on my first day?!”

    • RCF says:

      That would require courts to be run logically.

      Also, if most doctors are hyper-conservative, then the “standard” percentage will be what percentage of patients of hyper-conservative doctors kill themselves. Anyone who isn’t hyper-conservative is going to have higher numbers.

      • 27chaos says:

        I think a lot of amateur political analysis goes as follows

        1. The system is flawed in this specific area.
        2. We can adapt the system to these flaws by doing X, Y, and Z radical reforms.
        3. Fixing the root of the problem is too difficult, you aren’t pragmatic if you insist on fixing the root.

        The mistake is that although fixing the root of the problem is impossible, achieving X, Y, and Z is also impossible. In this case, it’s not at all obvious to me that improving the courts’ rationality is a more difficult solution than completely overhauling the way our civil rights work. I strongly suspect the opposite is true.

  9. Randy M says:

    “did you know they can force you to pay for your involuntary commitments?”
    Kind of like forcing parents to pursue all possible tests for any disease which the child could have, with the threat of cps if you want to get a second opinion.

    • pneumatik says:

      Assuming you’re talking about yourself or someone you know, you or they have my deepest sympathies and I wish you/them the best of luck.

      • Randy M says:

        In the case I am thinking of, I’m not sure they would refuse the treatment, because of the chance that the seemingly healthy baby is sick in an unidentifiable but dangerous way, but there are no symptoms other than an anomalous test, which does seem serious.
        The point being, though, that the choice is effectively out of their hands if they want to keep their newborn (and likely their other child if CPS were to get involved), though the payment is not.

  10. Morvkala says:

    I am really really sorry you’ve got to deal with decisions like that. My brain is trying to come up with a few hundred possible solutions to this that don’t involve ruining the medical system, people’s lives, or contract law and they’re all terrible.

  11. You do understand that lawyers way outnumber doctors in legislatures across the democratic world?

    But I am not sure that anyone should have a right to sue over something they gave not-under-duress informed consent to. After all, what is consent supposed to mean?

    • Auroch says:

      That just pushes the court process onto suits about whether the circumstances count as duress. The threat of losing your job and missing important family events if you’re committed is arguably duress. The absurd restrictions on employment contracts are arguably not duress, but it’s a pretty weak argument.

  12. Douglas Knight says:

    I agree with Galin that this is a weird choice of example. If the state thinks that it is necessary to coerce people into the hospital, why shouldn’t it also coerce psychiatrists to enforce this decision?

    If the patients did have the right to waive their right to sue, would the endpoint be any different than if they didn’t have the right in the first place? Maybe it would be better to just trust your judgement without the treat of malpractice hanging over you, but that would be better achieved by eliminating it wholesale.

  13. Anonymous says:

    I am depressed and have fairly serious suicidal ideation. I’m pretty sure I’m too much of a coward to ever kill myself, but whenever anything goes wrong in my life I spend days with part of my head chanting “I’m such a loser, I should kill myself, I should kill myself, why not jump off that bridge over there?”. I’ve never come anywhere close to acting on it, but it’s a real drag (wow that sounds flippant, but I mean that literally: it drags on everything I do.)

    …The clusterfuck you describe–which is not your fault, and I don’t blame you for acting as you do–is why I’d never tell a doctor the above. I don’t know what they can practically do to cure it [1], so the positive contribution to life EV is small, and while the experience of being hospitalized in-and-of itself is not something I dread beyond belief, I have insurance, can leave my life behind for a couple days, etc…I can’t afford to have _been_ hospitalized, which really is life ending. Anyone who finds out will think I’m a psychotic weirdo and want nothing to do with me, I’m legally barred from various things (clearances, etc), and no one will hire me for any position of responsibility.

    I don’t suppose Scott or others have suggestions?

    [1] I really don’t trust that SSRIs work overall for atypical depression; even if they helped a little, the possible side effects terrify me. The really bad ones are _awful_, and even the less-bad ones (I see often described as taking the edge off everything and dulling things) would be ruinously bad for me: there’s no non-arrogant way to put this, but I make a living by being a neurotic genius who is good at a few very fiddly tasks, and I can’t possibly risk losing my skills. Not to mention that I can’t try them and find out if this happens, because discontinuation can be worse than the drug itself. I’ve tried talking to a therapist (without telling him anything about suicidal feelings, because the above) and spent about $2K to get nowhere; Scott’s earlier posts seem to make it pretty clear that it’s no better than a placebo anyway, and I’m clearly past placebo help.

    • Anonymous says:


    • pneumatik says:

      Check out ketamine. There’s evidence supporting it as an anti-depressive, it’s not an SSRI, and it’s only schedule III (in the US) so a friendly doctor can prescribe it for you.

      • Anonymous says:

        I’m pretty sure asking for ketamine will get me laughed out of the exam room. Multiple doctors refused to let me try modafinil even when I showed up with clinical studies and metanalyses defending it.

        • 27chaos says:

          If you are willing to consider suicide, you should probably also be wiling to order drugs via TOR. Doctors are taught how to prevent people from getting sick, not how to cause them to flourish, and so their knowledge is about worst-case scenarios and they tend to be very conservative about unnecessary risks.

        • James Miller says:

          Then keep looking for new doctors. Some will let you have modafinil.

        • Anonymous says:

          Try to find a good resident (no offense to our or other residents). They tend to be less convinced of their own correctness and more interested in learning new things. It makes them more willing to go along with you if you show up with a tough problem and an evidence-based solution to it. Presenting your situation confidently may trigger the resident’s learned response to an attending telling them about a problem and how to fix it, too.

      • Sarah says:

        DON’T try ketamine right off the bat. It’s not a safe drug. If you’re worried about the side effects of SSRIs, you should be more worried about the side effects of ketamine.

    • anon1 says:

      There’s some interesting research on ketamine and psilocybin. Bonus: both of those have robust enough black markets that, depending on who you know, they may be easier to obtain than SSRIs.

      • Anonymous says:

        Yeah, I’m a boring dorky loser with barely any friends, and the ones I have are white-bread enough that they can’t get me illegal drugs. And random people on the street or whatever is a well-established way to end up poisoned by bad drugs.

        • anon1 says:

          For psilocybin the best answer is of course to hunt your own mushrooms, though the prospects for this are much better in some regions than others.

        • creative username #1138 says:

          If you really, really, really desperately want to buy ketamine or psilocybin your best bet would probably be the various TOR market places that have them on offer.

          (Note: I have never used one of these places and only know them from news stories. I can’t judge the quality of the drug you’d be getting or the risk of law enforcement finding out)

      • Anonymous says:

        I second the psylocybin recommendation! I felt great for a couple of weeks after a trip I took during my most recent depression. The research i saw indicated that it was a dopaminergic

        • Matthew says:

          I third the psilocybin recommendation.

          And you know, you don’t have to buy it illegally. There is a substance called 4-AcO-DMT that is almost identical to psilocybin and has effects that are indistinguishable. You can purchase this substance in pure form from various research chemical supply companies quasi-legally* if you know where to look on the Internet.

          *I will not mention the one company I know by name because this sort of thing is, as I said, quasi-legal, and if you spread the word too widely (such that their name easily pops up on the front page of google), it is going to attract the attention of those who might not be happy about what they are doing. These chemicals they sell are supposed to be “research chemicals,” “not approved for human consumption” yadda yadda yadda. You’ll have to make something up about how you need it for a chemical lab experiment (mainly to cover their butts in case law enforcement takes a peek at what they are doing). But they will sell it to you…with a wink and a nod.

        • alexp says:

          I very strongly recommend against taking psilocybin therapeutically unless you have somebody you trust and love with you during the trip. Preferably that person should be sober and experienced with the drug.

          You can ignore the second part if you’re doing it relationally and are in a calm state of mind.

    • J says:

      A different post on this blog is more directly related to depression and things that can help:

    • Anonymous says:

      Sounds like you’re going through a really difficult time. I’m not a doctor, but I have some personal experience with this stuff and I think your depression may be trying to trick you into not getting help. It’s nasty like that.

      “I have suicidal ideation” is not generally something that gets you involuntarily committed. There are levels of ideation and things like “has a specific plan” and “has a day chosen” make it more serious. Saying “sometimes I think I’m a loser and I should kill myself” is not likely to get you involuntarily committed.

      Also, any treatment that you get will be covered by medical privacy laws. If you did end up getting treatment somewhere (voluntary or not) no one will ever need to know about it. Employers can’t ask you this, and can’t look it up. The only way anyone will ever know what treatments you’ve had or haven’t had is if you choose to tell them.

      You need the help of a doctor. Try to find a doctor who practices cognitive behavioral therapy. Try going to a couple different ones for one session to find someone who clicks with you. Don’t settle for “oh well I tried it once and it didn’t work.” You are intelligent and skilled–put that intelligence to work in order to find a someone is on the same wavelength as you are and can understand and help.

      And always remember that your mind is capable of coming up with rationalizations for anything. For any treatment you might try (therapy, medication, meditation, whatever) there’s always some scary thing you can come up with for why it might go wrong.

      In conclusion: Please go to a doctor and tell them what’s going on. We care about you, but you need someone who’s experienced in helping people through this.

      • Anonymous says:

        Quick, how many celebrities can you name who’ve been on a 5150? Think any of them signed a HIPAA release?

        I am not a celebrity, so you wouldn’t
        _necessarily_ hear of me getting committed, but I sure as hell don’t trust medical privacy laws to keep my secrets from people who know who I am.

        And my point, such as it is, is that I _do_ need the help of a doctor, probably (though I’m still doubtful any of them can fix me), but I can’t get it because of this combination of incentives.

    • 27chaos says:

      Buy yo’self a puppy dog. Not kidding.

    • pylon shadow says:

      Question your assumptions about therapy and/or medication. You seem handicapped by inexperience, unwarranted certainty and exaggerated fears.

    • Scott Alexander says:

      Atypical depression, eh? You might get very good results with a MAOI (good luck finding someone to prescribe this), bupropion, or even modafinil. I’m pretty sure I said the opposite of “antidepressants are no better than placebo”, but I would be especially optimistic about those ones in an atypical case.

      • M says:

        If no doctor will prescribe an MAOI, you can always buy Syrian Rue off the Internet and cook the seeds down with some vinegar to make it into a nice digestible solution of harmaline with minimal nausea.

        Actually, Syrian Rue is better in some ways than mainstream MAOIs because its active ingredient, harmaline, is a RIMA (Reversible inhibitor of Monoamine-oxidase-A) which means:
        1. It is “reversible” – short acting – only stays in your system for 6 hours at a time per dose.
        2. It targets monoamine-oxidase A (which is the one that kills all your serotonin and dopamine, so you want to decrease that enzyme to boost your serotonin and dopamine), but it leaves monoamine-oxidase B alone (which is important because you really need MAO-B to help clean up toxic byproducts of foods like tyramine).

        Now, you still need to be careful with the dosage of Syrian Rue because if you take too much you can elevate your serotonin levels too much and bring on “serotonin syndrome” (I myself had a slight case of that from too much Syrian Rue one time (I was trying to hallucinate off it, so I was taking a much larger dose), and I had a really bad headache and high blood pressure for a few hours. But the anti-depressive effects are noticeable at much lower doses). Make sure you follow closely any precautions that are listed for it on

      • Anonymous says:

        Can attest that bupropion will not dull your emotions — or at least, it doesn’t dull mine. I find that basically any arousing stimulus has become a lot more efficacious. My emotions are more volatile — I flash over from irritation to anger more easily, I cry a hell of a lot more easily, and yes, the “arousing” in the previous sentence includes what you think it includes.

        TMI: Shpxvat iraynsnkvar tnir zr gur obare bs na borfr cer-qvnorgvp fvkgl-guerr-lrne-byq; ohcebcvba tvirf zr gur obare bs n ubeal fvkgl-guerr-lrne-byq ivetva, juvpu gheaf bhg gb or whfg nf zhpu bs n cnva va gur nff.

    • eqdw says:

      Something you might not have considered: hormones.

      I’ve been dealing with both constant low-grade depression, and episodic severe depression, for almost ten years now. I’ve tried every major SSRI, none have helped, side effects suck, some made me worse. Nothing has helped.

      A few weeks ago I came across some blog posts on testosterone levels (I think one of them might have even been in the SSC archives, I don’t remember) and a few of them mentioned that low testosterone can cause anxiety / depression / mood disorders in men. So I got mine tested. First test came back last week: I am below the ‘normal’ range but not far enough below to justify treatment, so I’m going for a second test (T levels fluctuate wildly during the day so it might be a fluke).

      This might work for me. So it might work for you. If nothing else, blood tests are free when your primary tells insurance you need them

    • caryatis says:

      I would suggest trying strenuous exercise. Free, safe, side effects are largely good. Might sound obvious but it’s been important in helping me deal with similar issues.

    • Anonymous says:

      I think you are overestimating the risk of a trial run. Under short term use, the side effects will be *temporary* – as in, you should go back to normal after discontinuation, at worst experiencing a temporary withdrawal (which is why people treat them gingerly – a suicidal patient might be driven to action during withdrawal). Under long term use … well, that’s a harder question, but beware inaction bias – if during the trial run if you start feeling better and being productive then any possible side effects may be outweighed by alleviating the depression, which *also* has “side effects”.

  14. Conor says:

    Doctor’s attorney: “But didn’t you specifically ask not be treated?” Patient: “Yes, but I wasn’t in my right mind. Maybe the fact that I was undergoing psychiatric evaluation just after a suicide attempt should have clued you in!“

    Obviously, you’ve simplified the legal arguments a bit, but if this is the gist of how a trial against you would proceed, I don’t see how allowing a right to waive rights would help.

    The case is grounded in the patient not having the mental capacity to decline treatment. If he doesn’t have that capacity, how can he be a competent party to a contract?

    • caryatis says:

      I believe the legal standard for involuntary inpatient commitment does not require that the patient not have the mental capacity to decline treatment. (The standard varies by state but is probably something like a person who is mentally ill and reasonably expected to do physical harm to himself or another if not committed.)

      The broader answer to your question is that a person can be legally competent in one respect but not in another (e.g. competent to stand trial, competent to consent to medical treatment, competent to manage finances may have different answers.)

      • LRS says:

        Then that’s the doctor’s attorney’s counterargument right there, isn’t it?

        “You were perfectly competent to waive your right to sue; it’s irrelevant that you recently attempted suicide, because that’s implicates a separate set of mental faculties than those required to make a valid waiver of legal rights.”

    • ozymandias says:

      In fact, involuntarily committed mentally ill people *do* have the right to decline treatment. No one can give you psychiatric medication without your consent or a court order. I declined antidepressants when I was involuntarily committed.

      • Loki K Zen says:

        Doesn’t this (anecdotally) happen all the time though? I never saw it happen when I was in psych, but I certainly have heard people say they saw people injected with meds against their wills.

        • Anonymous says:

          Perhaps the difference is between short-term treatment for an acute event (eg, freaking out) vs long-term medication like antidepressants?

        • caryatis says:

          I think involuntary medication is allowed in emergencies without a court order.

      • call_me_aka says:

        “Consent” may be obtained under dubious circumstances.

  15. Another possible approach is to eliminate this class of lawsuits altogether, by adopting a “no fault” system, such as New Zealand’s ACC.

    (NB: I don’t know whether our emergency room doctors are nonetheless obliged to commit patients in the sort of scenario you describe, just that the risk of a lawsuit is not a factor.)

  16. Azure says:

    So, as someone who has been commited to a psychiatric unit because the psychiatrist interviewing me had rather not wonderful English skills, I am somewhat sympathetic to the idea of being able to throw down and say “Heck no, I’m not suicidal you jerk!”

    My worry in the case you cite would be one of institutional reactions to patients being able to waive their rights. I am not a doctor and don’t know how these things work, but I would fear that doctors would be encouraged, in the case of poorer patients who might have difficulty paying, say, to say “Well, looks like you had a tough time of it. You might want to consider a stay in the hospital, but really you can just sign this waiver and go home now.”

    I suspect we want reforms to malpractice law. My understanding is that the damage-happiness of juries already causes tremendous loss to unneeded tests, and this just sounds like another example of doctors being forced to be risk averse as heck instead of behaving according to their best judgment.

    • RCF says:

      “So, as someone who has been commited to a psychiatric unit because the psychiatrist interviewing me had rather not wonderful English skills, ”

      That piqued my curiosity.

      • Azure says:

        This might sound a bit odd. And long. But it doesn’t make sense without the context. And for the context to make sense I have to explain how your emotions feel when they don’t work right.

        I have, basically, won the affective lottery: I spend most of my life in a more-or-less stable hypomania.

        Once upon a time, it was ‘less’. I don’t experience “classic” depression, in that I don’t experience the common combination of anhedonia/apathy/and extremely low energy. My version of depression is an active, jumpy, bright, unpleasant thing that combines the energy of mania with the pain of deprssion. Usually it’s just unpleasant, but sometimes it’s the worst thing in the world. A full-on mixed state leaves a longer-lasting, more intense emotional trauma than pretty much anything that’s ever happened to me. Now, in this extreme case, I am legitimately a suicide risk. I don’t feel hopeless, don’t want to die, nothing like that. But the emotional pain is so intense I’m overcome with fear that if it doesn’t let up soon, my resolve will break and I’ll do the equivalent of chewing my leg off to escape a trap with a city bus.

        The other extreme is outright mania. This can be really great. The whole world becomes a concert whose composer believes in sensory overload and assault (in the nicest possible way) as valid aesthetic tools. The mind races, you get intoxicated on abstractions. You feel as if you can see through the world and cut it to the quick with your questions. it also lends itself very well to intellectual activity, like mathematics. However, there are down-sides. You become prone to doing things that are a really bad idea, because you see the up-side of every course of action and the down-side of none. After a certain point, you become Uncomfortably Energetic. You feel like you don’t fit in your own skin, in your own mind, or in the world. There’s a sense of being /so/ full of something that you have to be careful, as if you might set something on fire if you looked at it for too long; not that I had delusions of being pyrogenitive, it’s the feeling and sense, not the belief. Though mania can cause delusions, the very few times I’ve had them I became very paranoid about time travel paradoxes.

        Lest you worry, I have been infusing big, heaping gobs of lithium ions into my brain for years. This has pinned me stably in a slightly lower-but-much-more-stable-than-I-would-normally-have hypomnia like a butterfly on a eudaemonic corkboard.

        So, with that background, I was talking to a psychiatrist who was an Indian immigrant whose English was fine but he seemed to stumble when it came to the colloquial.

        I was feeling more elevated than is usually considered desirable, but not unhappy, and one of the features mania is that you don’t so much use language as stormed by the lexicon as its vector to invade and conquer the world. (More prosaically you keep interrupting yourself with every new notion that occurs to you and will often /try/ to talk about one thing but have a bunch of other words given birth by passing thoughts jump into your mouth and rush out. It’s a strange feeling, almost as if you’re physically trying to drag your language and your attention back in one direction while it’s pulling and whipping wildly in every direction at once.)

        The psychiatrist asked me how I was feeling, noted I was agitated, and asked if I felt upset. Without meaning to I gave a long, colorful, winding explanation of how I felt and contracted it with ways I did /not/ feel but had felt in the past, partly for context and to help him try to calibrate my affect, partly because the words just happened to me.

        Much to my surprise he told me I was depressive and suicidal. I wasn’t feeling even remotely unhappy, but
        when I looked at my records later, it looked like his comprehension of English was overwhelmed by the sheer torrents of locutionary force with which I was deluging him. He had hit a bunch of keywords, but the context, mostly negations and past tenses and counterfactuals, had got lost. This was likely because I kept stoping in the middle of one sentence, pushed it onto the stack, started another, and kept going until I unwound the stack later on.

        This was somewhat annoying to me at the time but is more amusing than anything in hindsight, mostly because I had excellent health insurance, so I didn’t have my financial situation ruined by a miscommunication.

  17. Kevin says:

    On the other hand, sometimes an entity has no intention of ever cooperating with you, and a lawsuit is the only viable remedy. Despite the example in your first paragraph, modern contract law in the US effectively prevents consumers from suing corporations: Thrown Out of Court

    Hastily clicking through terms of service is now all it can take to surrender your rights to these companies. Once you do, your only path for recourse if you’re harmed by any one of them is “mandatory arbitration,” where the arbitrator is often chosen by the corporation you’re challenging, and any revelations about the company’s wrongdoing tend to be kept secret.

    In 1985, the Supreme Court heard Mitsubishi v. Soler Chrysler-Plymouth, a case in which a car dealer had sued the Japanese manufacturer for violating antitrust laws, and Mitsubishi had pushed to arbitrate. Recalling the Federal Arbitration Act, the car dealer pointed out that companies could only use arbitration to settle contracts they had written, not interpret laws Congress had passed, like the Sherman Antitrust Act. Stunningly, a five-justice majority—riding its recent wave—sided with Mitsubishi. Arbitrators could now rule on actual law—civil rights, labor protections, as well as antitrust—with no accountability or obligation to the public.

    In 2004 a court ruled that arbitration clauses were enforceable against illiterate consumers; another court ruled that they were enforceable even when a blind consumer had no knowledge of the agreement.

    At this point, there was one slender thread of protection left: class-action bans still weren’t enforceable if they eliminated the only way someone could bring a case. But in 2013, the Supreme Court gutted even this provision in a case pitting Italian Colors, a family restaurant in Oakland, California, against American Express. This time around, the same five-judge majority ruled that class-action bans in arbitration contracts were legal—even when they left citizens with no recourse at all.

    (Apologies for the multiple quotes, but it’s actually difficult to choose a single worst fact in that article.)

    • Lesser Bull says:

      This is not legal advice, but as a practicing lawyer I can tell you that the article you quote is wildly exaggerated.

      • caryatis says:


      • Ken Arromdee says:

        What in particular is exaggerated?

        • Lesser Bull says:

          That buying things as a consumer leaves you little to no legal recourse against corporations. Courts are eager and willing to ignore boiler-plate terms of service and lawyers are clever about finding claims that circumvent them even when they are enforced or enforceable. In the legal arms race, victory has not gone to corporate defense, not by a long stretch.

  18. jrdn says:

    “In multiplayer games, the ability to limit your options can provide a decisive advantage.”

    Radiolab did a great episode on a fantastic example of this: There was this TV game show called Golden Balls – basically the prisoner’s dilemma. In the final stage of the game, contestants have to decide to split the money, or steal it. If one splits and the other steals, the stealer gets all the money. If both steal, both get nothing.

    On one episode, one contestant straight up said that he was going to steal, and nothing would change his mind, but if his opponent agreed and he won the money he’d share it after the show. By adding this extra information, he made his opponent’s choice easy – he could chose split and maybe get half the money if the guy wasn’t lying, or he could choice steal and definitely get nothing.

    Of course, now that he’s limited his opponent’s logical choices to one (choose share and hope he’s telling the truth that he’ll share later), he can now also safely choose share.

    Video of the game:

    Radiolab episode:

    • 27chaos says:

      Real winning strategy: make this exact claim, referencing this exact occurrence, then ultimately defect in your game. XD

      • Matthew says:

        If I were the opponent, I’d publicly agree, stipulating that I would also devote the rest of my life to using every non-illegal means possible to make the first-mover’s life miserable if they meta-defected.

        • suntzuanime says:

          Using otherwise non-illegal means to make a person’s life miserable is known as harassment, and is illegal.

          • Matthew says:

            Oh, very well. You can substitute precommitting via a side bet to sue for breach of contract. (I expect such a suit would probably lose at the verdict stage, but is not so obviously unreasonable that it would be thrown out of court or that the plaintiff would be held accountable for legal fees.)

          • call_me_aka says:

            Using otherwise non-illegal means to make a person’s life miserable is known as harassment, and is illegal.

            Exactly. And you can’t challenge someone to a duel these days, either, so we’re out enforcement mechanisms that don’t involve the state.

      • CaptainBooshi says:

        I’ll just make a note that this is only the real winning strategy if you don’t care about your reputation, won’t ever have to face a similar situation again, will not be troubled by your conscience, and you don’t have people close to you who might treat you differently if you act evil. Basically, I don’t think it’s a real winning strategy at all for most people.

        • 27chaos says:

          I think the sum of money offered is so huge that the hit to reputation that occurs is outweighed. This suggests that minimizing the size and amount of large lotteries, whether natural or artificial, is a good idea. Luck tax? Probably an awful idea, fun to play with in my head to try to make it work.

    • RCF says:

      Another strategy, that wouldn’t be as good as (C,C), but better than (D,D), would be to tell the other player “I won’t look at my balls, if you won’t”. Then you have a 25% chance of (C,C).

  19. pneumatik says:

    I think part of the problem here is that that system doesn’t assign responsibility appropriately. Specifically the lawyer offering the not-committed patient a pile of money doesn’t accept any risk or responsibility for any aspect of the medical system. While there’s a valid reason to have outside pressure on the medical industry to not fail catastrophically, the manner in which the pressure is applied by lawyers is very specific and limited in what it can do.

    I have a friend who was an ER doctor for a while and he said that if you want to spend 24 hours in a hospital just go into the ER and say the words “chest” and “pain” in the same sentence. He believed that tort reform was necessary to reduce medical costs not because malpractice insurance drives up costs but because the threat of a suit drives doctors to run unnecessary tests. From this perspective no patient would want to waive the right to sue (assuming they could, considering they’re in bad enough condition to be in the ER) because it would mean that the doctors would run fewer tests on them and be less careful with their care.

    I don’t have a good solution. Society can’t afford to give everyone the same high level of care, if for no other reason than highest levels of care will by definition be the stuff that not everyone can afford. Centralizing health care somehow, which is what most countries other than the US do, runs into the problem of rationing (in some way and to some degree).

    I think this is all related back to waiving rights because part of the problems inherent in systems with these problems are that huge sets of rules have already been erected that restrict people’s ability to form contracts freely. Very few people can be primary health care providers in the US. While a bunch of doctors can easily form a business to provide medical care they need government permission to create a psych hospital like the one where Scott is now (or any hospital – in the US counties limit total hospitals, hospital beds, and even the number of licensed operating rooms, for example). Other people have declared what the standard of care is for various patients, so to a certain extent despite lots of expensive training Scott will always be stuck doing what other people direct even when it comes to providing direct medical care. Patients who are not in a healthy mental state are treated differently from a legal perspective. For doctors like my friend who was an ER doc they can’t refuse patients and the patients are often in no condition to go somewhere else. And then having third-party payer insurance completely wrecks any hope of rational pricing.

  20. Drew Hardies says:

    Limitations like, “No Eternal Non-Competes” seem justifiable because of information costs.

    The status quo is that there are all kinds of limitations on how contracts will be enforced. In general, a contract’s side effects have to be the same order-of-magnitude as the primary goal. They can’t get massively bigger. And this is a good thing.

    Take the Blockbuster Terms of service as an example. Right at the top, there’s a clause:

    Changes to our Terms and Conditions and Frequently Asked Questions are made from time to time, and your continued use of our website following any change shall be deemed as your acceptance of such change. It is the user’s responsibility to regularly check our Terms and Conditions for changes.

    If we allowed unlimited contracts, there’d be nothing preventing Blockbuster from silently raising their late fees to $10,000/day.

    This would have a couple effects in the iterated game. (1) Some poor, unwary person would get tagged with a bajilion dollar late fee. (2) everyone would have to start continually checking websites/having lawyers review their video rental contracts, (3) the extra legal attention would force some elaborate procedure for updating rental fees so the contract would be “fair”.

    As far as I can tell, that would end up almost exactly like the status quo; people would sign contracts letting them rent videos for “fair” fees. The major difference would be a huge increase in transaction costs as people have to get lawyers to read everything.

    Instead, it’s much, much more efficient to bound contracts at a systemic level. That way, when I sign something labeled an “employment contract”, I know it’ll deal with obligations & duties for roughly the duration of my employment — rather than having some clause where I get sold into slavery together.

    Perhaps this is unfortunate for those people who really, really do think it’s in their interest to sign a ‘non-compete for life’ contract. But that seems like a vanishingly small demographic

  21. Drew Hardies says:

    I’d argue that the laws are a form of commitment device.

    In particular, they’re a way for society/(a representative agent) to decide to get treated in advance of knowing if they’re one of the people who will become depressed.

    The tradeoffs are exactly what you described: false-positives make people miss little league games. False-negatives let temporarily depressed people kill themselves.

    You could read the laws as people signaling (in advance) that they consider the downsides of involuntary commitment in the “looks depressed, not depressed” case to be worth the benefits in the “looks depressed, is depressed” state of nature.

    • Jiro says:

      false-positives make people miss little league games.

      False positives make people go into debt paying for the involuntary commitment, or lose their jobs (which can also lead to them going into debt).

      • Anonymous says:

        false-positives make people miss little league games

        Or lose their job (either from the time lost, or from being seen as no longer able to hold responsibility).

        Or lose their housing.

        Or lose custody of their kids.

        Or fall into bankruptcy.

        If you were an attorney, or a physician, or a contractor with a valuable clearance, or a military officer, or a teacher, or a police officer, would you still be so cavalier about a false positive? I suspect the number of high-functioning people who would very much like treatment, but can’t get it for fear that one misspoken sentence or psychiatrist misunderstanding would effectively end their career and cost them hundreds of thousands of dollars, is quite high. (See, e.g., other commenters in this thread.)

  22. 27chaos says:

    Should we also have a right to waive this right? I’d think so. I’d also think such a right would need its exceptions. At some point, analysis of this sort boils down to pointing out that no strategies are equally advantageous across all domains. That’s how I feel about decision theories and prisoner’s dilemma bots as well. Trying to find an ultimate perfect universally winning strategy is a waste of time.

  23. suntzuanime says:

    If ninety percent of the sob stories are false, and three percent of the story-tellers will kill themselves, and you think it’s a good thing to try to prevent people from killing themselves, does the math actually work out, here?

    My position is that some contracts are good and some are bad, and we should do what we can to prevent the bad ones and allow the good ones, and it’s not clear that a contract a mentally disturbed person signs waiving his right to sue you for violating your duty to properly treat his mental disturbance is actually one of the good ones.

    • Scott says:


      Doctor’s attorney: “But didn’t you specifically ask not be treated?” Patient: “Yes, but I wasn’t in my right mind. Maybe the fact that I was undergoing psychiatric evaluation just after a suicide attempt should have clued you in!“

      This seems to me like a really good argument, and while it certainly sucks that doctors have to be close to these patients while they go through emotional upheaval, I think that it’s better for everyone that the patient doesn’t have a choice here. Play the trolley game, where one direction makes the passenger on the trolley miss their kid’s little league game and get yelled at by their boss. The other direction leads to 50 random tracks, one of which goes off a cliff. While the right to waive your rights is an interesting idea, much of the reason these rules are in place are because over time, they’re the right course of action. And with the limit on information you can get from a half hour consultation, I frankly don’t trust a physician’s gut on this. (No personal offense)

      • ozymandias says:

        The thing you’re missing is that a lot of people really, really don’t want to go to the hospital.

        A lot of suicidal people don’t go to a therapist or tell their therapists because they don’t want to go to the hospital, making it harder for them to get treatment. Similarly, when I was a teenager, it was not uncommon for my friends who did really bad self-injury they probably should have gone to the doctor about to put a bandage on it and hope for the best, because if they went to the hospital it would be ””’parasuicide”” and they would have to go to the mental hospital. (And no one wants to go to the adolescent ward of a mental hospital.)

        • Anonymous says:

          Yes, there are tradeoffs. Maybe this one makes involuntary commitment a bad system.

          But it’s really condescending to say people are missing it. They aren’t talking about it because it isn’t the subject of the post. If you think it’s absurd to talk about this subject without bringing up that aspect, complain to Scott, not to the commenters.

          • Scott says:

            I didn’t get a condescending vibe from ozy’s comment at all. The fact that people might avoid going to the hospital for suicide injuries because they fear that they will be committed is a valid tradeoff that I hadn’t thought of before. I’m not sure it tips the balance of whether this is a good idea, but it certainly makes the cost-benefit more interesting.

          • call_me_aka says:

            Friendly reminder that self-harm =/= suicide.

        • If you google “parasuicide”, Google presents you with a phone number for the National Suicide Prevention Hotline on top of your actual search results.

          I find this very creepy. I’ll find it even creepier if suicide prevention stuff shows up in my G+ account after this.

          • vV_Vv says:

            I find this very creepy. I’ll find it even creepier if suicide prevention stuff shows up in my G+ account after this.

            But if the suicide prevention stuff stops showing up in your G+ after you wrote this comment then you should really freak out. 😀

          • Anonymous says:

            report back for those of us without g+.

        • vV_Vv says:

          if they went to the hospital it would be ””’parasuicide”” and they would have to go to the mental hospital. (And no one wants to go to the adolescent ward of a mental hospital.)

          Don’t you think it would have been good for them to be hospitalized?

          • galin says:

            No! What do you think actually happens in a psych hospital?

          • vV_Vv says:


            No! What do you think actually happens in a psych hospital?

            I suppose that mentally ill people receive treatment there.

          • Nikias The Random Blog Commenter says:


            Gullible people like you are the reason why the parasites get away with one act of aggression after another.

            “Protecting people from themselves” is not about protecting people. It’s about dominating people.

          • galin says:

            What do you think that treatment looks like? Medicine, if you’ll take it, which will take weeks to kick in, and maybe group “therapy” with people from the bottom rung of the socioeconomic/functionality ladder to the tune of “emotional management is a thing–try to notice your feelings and make better choices”, which might work for people who have never encountered the concept before, but certainly not the average middle-class American, teenage or not. And they can only keep you for three days without a court order, and as far as I can tell they mostly don’t.

            The other problem is that suicidal people are usually admitted to the “top-security” parts of a hospital, meaning limited visiting hours, no electronics, no time outside, and a host of actually dangerous people all around them. Yes, it’s only three days, but for a teenager especially that can be traumatic.

          • vV_Vv says:

            @Nikias The Random Blog Commenter

            I find your comment unnecessarily hostile and not informative.


            It seems that you are objecting the standard of mental health treatment that people receive in hospitals. While it is certainly possible to criticize it (I don’t really have any expertise on it), this is different than criticizing the principle of involuntary commitment.

          • Nikias The Random Blog Commenter says:


            The information value that you can extract, if you want it, is that there are people who disagree on your naive view that institutions which are ostensibly about helping people who refuse said help are actually about helping those people, rather than about extracting status, dominance, money and social-desirability-biased ideological affiliation benefits from actually harming those people.

            How could you possibly help someone by locking them up against their will?

          • Mugasofer says:

            Nikias: I occasionally suffer from suicidal ideation, which has, a few times, made it as far as self-harm/suicide attempts.

            I would absolutely endorse – right now – someone “locking me up against my will” if they detected that I was about to try and injure or kill myself. Heck, I’d probably thank them after I was feeling better.

            Because – this is something that has apparently escaped you – depression is a real phenomenon that actually exists, and it impacts your decisionmaking, and it is in no way secretly a lie invented by the medical community to control the populace.

          • Nikias The Random Blog Commenter says:

            Mugasofer, the claim that depression is easily treatable, or that antidepressants are effective, is indeed a lie. It is used by the pharmaceutical and psychiatric industries to extract money from society via forced insurance.

            It is also used by religious lobbyists to attack suicide rights for purely ideological reasons.

            If you endorse being locked up against your will in the future, you should be required to consent to a contract that says so. And no one else should be affected.

            You can sell yourself into slavery all you want, but you shouldn’t be allowed to sell other people into slavery. I find it absurd that we even have to discuss this.

          • Susebron says:

            @Nikias: Did you read Scott’s post on SSRIs?

          • Nikias The Random Blog Commenter says:

            Not only that, I have my own negative experiences with them, thank you very much.

          • Susebron says:

            Anecdotes are not data, at least not on the scale being discussed. You may have personally had problems, but that does not necessarily mean that all antidepressants are completely ineffective.

          • vV_Vv says:


            Mugasofer, the claim that depression is easily treatable, or that antidepressants are effective, is indeed a lie. It is used by the pharmaceutical and psychiatric industries to extract money from society via forced insurance.

            You are veering into conspiracy theory territory.

            No scientifically-minded person will claim that major depression is easily treatable, but the effectiveness of antidepressants is well established.

            Not all drugs are effective on all people, and some people can’t be treated with any known drug. The most likely explanation for this is that major depression is a complex condition with multiple possible causes, just like cancer or obesity, not that it is a plot by Big Pharma.

            I’m not going to argue that mental health care is perfect. Instance of incompetence, abuse and corruption certainly do exist. But evidence-based mental health care does more good than harm on average.

          • ozymandias says:

            vV_Vv: I don’t think it would have been good for them to be hospitalized. Mental hospitals for adolescents are often awful– like, “I know multiple people with PTSD from the experience” awful. There are a lot of protections adults have that adolescents don’t: for instance, adolescents can be drugged without their consent, but adults can’t.

            And even if it was good, what actually happened was not Ozy’s Friends Get Hospitalized, it was Ozy’s Friends Clean Their Wounds And Hope For The Best. There is a tradeoff here– involuntary commitment does discourage people from getting treatment that might lead them to being committed.

          • vV_Vv says:

            And even if it was good, what actually happened was not Ozy’s Friends Get Hospitalized, it was Ozy’s Friends Clean Their Wounds And Hope For The Best.

            Or Ozy’s friends don’t cut themselves as much as they would if they didn’t fear being committed.

          • Anonymous says:

            As someone who cuts, I can tell you that that’s probably true–there are all sorts of disincentives to do it that reduce the incidence and/or severity–but, like, that person’s still not okay. And there’s something really wrong with trying to disincentivize people who need help by withholding help from them.

            One of the most pernicious dynamics that involuntary commitment creates is that really bad behavior gets you in trouble, but moderately bad behavior gets you nothing. So even if you know you’ll be committed if you cut badly and you know it’s going to be useless and traumatic, you might go ahead and do it anyway because what else is there to do.

          • Patrick says:

            Well, that’s the fun thing about self destructive behavior, isn’t it. The positive case for involuntary treatment is that you perceive a choice between

            1. The self destructive behavior continues, or,
            2. Treatment that will be harmful but less bad than the continuance of the self destructive behavior.

            But the self destructive person facing treatment isn’t going to agree that that’s the choice. They’ll pose,

            A. The unpleasant treatment hurts me, or,
            B. I voluntarily stop the self destructive behavior.

            (B) is obviously the superior choice against (A). But after they promise (B), they do (1). (B) was never on the table.

            The fun thing is that there is literally no treatment to which this pattern cannot apply, because literally no treatment is better than the person just stopping the self destructive behavior on their own. Except for the part where that’s a phantom.

          • Anonymous says:

            literally no treatment is better than the person just stopping the self destructive behavior on their own.

            Actually, no treatment will work period, if all you care about is stopping the self-harm. The point is that the point should be to make the person better, not simply to stop the self-harm so you can discharge them and not have to worry about lawsuits.

          • Scott Alexander says:

            Nikias, second warning, and I’m only giving you this many because I like your name.

          • Patrick says:

            Who said we were only worried about stopping lawsuits, or about stopping the self harm in some kind of vacuum that has nothing to do with caring about the person engaged in it?

        • caryatis says:

          Couldn’t you go to a doctor and say, I’m depressed and have symptoms x and y, can you help me? Without going into symptom z = suicidality.

        • Garret says:

          I’d point out that being involuntarily committed can (in the US) come with a lifetime ban on owning firearms. For some people, that’s a much bigger risk than a few days vaccation with bad lighting, worse food, and rude service.

      • LRS says:

        I think I agree.

        The fact that the law punishes doctors for the bad consequences of releasing these patients and does not punish them for committing them is an embodiment of society’s cost-benefit analysis over the entire population of such patients. We have decided that we would rather have doctors erroneously commit patients than erroneously release them.

        Or, to put a finer point on it, and to make it clear that I am aware that this is not a costless analysis: society would rather bear the risk-adjusted costs of having patients forced to miss their parents’ deaths/their childrens’ little league championships/fired for absenteeism/plunged into foreclosure/unjustly stripped of custody of their children/ abandoning their adopted daughters’ boyfriends to their fates because a doctor committed them, than bear the risk-adjusted costs of having them injuring/killing themselves because a doctor released them.

        There will, of course, be cases where, in the doctor’s professional opinion, for some particular patient, the cost-benefit analysis comes out differently. But society has decided that it needs a meta-level rule that can be applied and enforced over the entire population.

        A persuasive counterargument, advocating a different meta-level rule, would present an analysis of the underlying costs and benefits that reached a different conclusion.

        Tangentially – the degree to which young doctors are socialized to fear and hate the legal system is so interesting to me. Scott writes that he wants to do what’s right for his patients and also avoid being sued, as if these two goals were in conflict. Like many doctors, he seems to think of the arguments made by lawyers at the lawsuit stage as some sort of dark trickery, as if there were no chance that they could actually articulate some real reason why the doctor’s actions were wrong.

        It seems like, if a doctor actually cares about doing what’s right for patients, any arguments being made by patients’ lawyers at the lawsuit stage should already have been refuted in the doctor’s head at the treatment stage. And not just in the form of “this is how I’ll explain this decision to the court,” but in the form of “this is why this decision is right.”

        • vV_Vv says:

          It seems like, if a doctor actually cares about doing what’s right for patients, any arguments being made by patients’ lawyers at the lawsuit stage should already have been refuted in the doctor’s head at the treatment stage. And not just in the form of “this is how I’ll explain this decision to the court,” but in the form of “this is why this decision is right.”

          Are you pro-Israel doctors or pro-Palestine lawyers? 😀

          The interests of the average doctor are likely to be aligned to those of other doctors, while the activities of malpractice lawyers are more likely to damage them. Therefore, doctors tend to see other doctors as their natural allies and malpractice lawyers as their natural enemies.

          Politics everywhere!

        • Douglas Knight says:

          The degree to which lawyers are socialized to lie about the legal system is so interesting to me. How can they function in it with such false beliefs? In other fields, it’s easy to see how people’s beliefs diverge from their actions, but law is such an analytical field, how can the beliefs be segregated from their reasoning process?

        • houseboatonstyx says:

          patients forced to miss their parents’ deaths/their childrens’ little league championships/fired for absenteeism/plunged into foreclosure/unjustly stripped of custody of their children/

          Fwiw, being kept in any hospital for a heart attack or an accident injury can have those effects too. If HIPAA privacy were really secure, psyc patients would just be in the same situation as other patients. Though the non-psyc patients might not be locked in or chased by the police, still if the hospital staff doesn’t want you to leave, flouncing out in a hospital gown with wires attached is not very practical, especially if you need someone to push your wheelchair.

    • John Schilling says:

      If ten percent of the sob stories are true, and thirty percent of the true ones involve fates comparable to death, then it’s a wash. Turns into a net win if we assume the psychiatrist has any ability to distinguish between the two.

      And given the social, economic, and legal stigma presently attached to mental illness, “fate comparable to death” is not necessarily a gross exaggeration. Airline pilot who can forevermore only work jobs involving the phrase “do you want fries with that?”, father whose only son really will never talk to him again because missed one too many Little League games plus now Certified Crazy Person, etc – if these people were even borderline suicidal before, I’m not betting on their post-commitment lives being either long or generally pleasant.

      Ideally, we’d make it so that brief in-patient psychiatric treatment is no more stigmatizing than spending a few days in bed with the flu, but I think that’s an even more improbable reform than Scott’s proposed legal remedy.

  24. Matthew says:

    (I realize this isn’t really the point of the post, but I’m curious.)

    A guy begs to be allowed to go, says he’s not suicidal at all, everything will be fine. The doctor goes soft and lets him. He thanks the doctor profusely, says she can’t possibly understand how much it means to him. The next month he shoots himself and is permanently crippled. A lawyer informs him he can get $500,000 by suing the doctor for breach of duty since she let him go home even though he was clearly suicidal, and the doctor doesn’t have a leg to stand on.

    Suppose it isn’t one month later, but six months. Or six years. How long after a patient is released from psychiatric care is it still considered reasonable to blame the doctor if the patient does something destructive?

  25. desipis says:

    I think part of the problem here is that that system doesn’t assign responsibility appropriately.

    This is really the heart of the issue. Meddling around with contract law, attempting to make those under psychiatric distress legally bound by the agreements they make, just seems to be gasping in the wrong direction. Doing so would open the psychiatrically vulnerable to all manner of abuses.

    It would be much better to tweek tort law and block liability for negligence in cases of self harm following psychiatric treatment, primarily for reasons of causal uncertainty. I think it’s reasonable to rely on the doctor’s own moral compass to balance the patients interests and the associated risks, rather than trying to substitute it for a lawyer’s or a judge’s perspective.

    An exception could be made if the doctor’s conduct can be shown to have been reckless or malicious. Of course that sort of conduct ought to see their medical license revoked as well.

    • LRS says:

      I strongly agree with your first paragraph, which encapsulates one of the stronger objections being made by many other commenters.

      I’m not sure that carving a doctrinal exception in tort law for this situation is the right way to get to where you want to go.

      A doctor’s legal duty is defined by the standard of care, which in turn is defined by the rest of the medical community. If mandatory involuntary commitment is required by the standard of care, but not what we want doctors to be doing, then maybe what’s needed isn’t so tort reform, but rather standard-of-care-reform within the medical community.

      • desipis says:

        I was think more of the causation tests, rather than the duty.

        In terms of factual causation: What evidence is there as to the effectiveness of a mandatory 72 hour evaluation? Does it prevent harm over the long term, or does it just delay it? Is the liability typically imposed on causal evidence or legal presumptions about the efficacy of the treatment?

        In terms of legal causation: Does imposing liability on the doctor conflict with the duty of the doctor by causing them to cover their own backside rather than forming judgements in their patient’s overall best interest?

        • LRS says:

          Your legal causation argument strikes me as more of a duty question than a causation question, though I grant that the concepts bleed into each other to a great extent.

          Regardless, can’t defendant-doctors already make all of these arguments in the tort system as it’s currently constituted? Causation is already a frequently litigated issue. The patient-plaintiff already bears the burden of proving causation by preponderance. I don’t see that any tweaks to the tort system are necessary to include the issues you’ve laid out (which are very salient) in the liability analysis.

  26. Anonymous says:

    Immediate complaint. These people aren’t in their right mind, with a high probability. So, committing them is probably the correct action to take, regardless of what they explain. If you give them this waive your rights option they may very well take it, but I don’t see how that benefits them.

    • Nikias The Random Blog Commenter says:

      These people aren’t in their right mind

      Based on what? Your personal value judgment? I think conservative voters aren’t in their right mind. How bout we ban them from voting, and while we’re at it, lock them up for trying?

      • M says:

        More specifically, I would ask: Is the doctor’s judgment that they aren’t in their right mind a falsifiable (i.e. scientific) judgment?

        Is there anything that a suicide patient could say, any evidence that they could present, that could change a doctor’s mind? If not, then the doctor isn’t really practicing science, but rather dogmatism, no?

        This is something that has always bothered me about psychiatry.

  27. gwillen says:

    I think, before any push to loosen or eliminate restrictions on freedom of contract, it’s important to consider this: It’s simply not possible to exist in today’s society without implicitly agreeing to a huge number of contracts of adhesion, none of which the average person is able to understand, almost all of which the average person will never read, many of which the average person is not even aware they’re agreeing to.

    My guess is that you have agreed to hundreds if not thousands of contracts of adhesion — that is to say, take-it-or-leave-it contracts presented to you, as a condition of doing business with some entity, prewritten for your agreement — in your lifetime, and you have likely read no more than 1% of them, if that.

    Is it your position that if any single one of them contained a clause that says “also, you’re my slave for life”, that this should be binding on you? That doesn’t seem likely to end well.

    I understand the position that the market should … maybe … eventually … correct this. How many lives (I am counting ‘accidentally sign a slave-for-life contract in exchange for a copy of Starcraft’ as the loss of a life) will it cost in the process? How many is it worth? What fraction can the market realistically prevent?

    • suntzuanime says:

      He explicitly mentioned the contract-of-adhesion issue at the beginning of the post. This is more of an argument for respecting that there is a tradeoff when society refuses to honor a waiver than an argument that all waivers must be honored. Which is true in general, although I don’t know that I agree with him about the relative value of the tradeoffs in the specific case he outlines.

    • DanielLC says:

      If you try to hide something significant in a contract like that, it’s not binding. For example, someone signed a contract saying that when they’re buying furniture, they don’t own any of it until the finish the payment on all of it, and when they failed a payment on the last piece of furniture, the store was not allowed to repossess all of it like the contract said they could. Nonetheless, you’re allowed to sign contracts where your entire house is repossessed, just because that’s a more typical thing to do and they’re clearly not trying to trick you.

      This isn’t about being able to sign yourself into slavery because you didn’t read the EULA. It’s about being able to sign yourself into slavery to pay for an expensive medical procedure you need to not die.

  28. Harald K says:

    Reminder: the only two-party agreement is a gentleman’s agreement. If it’s not a gentleman’s agreement, it has at the very least one more party: the party supposed to enforce the contract. If you keep that party in mind, maybe you can resolve some of your quandaries.

    There is a standard agreement between you, the patient, and the enforcer (the courts, in this case) that says that you’re obliged to hospitalise someone if you think – or ought to think – that they’re not of sound mind and a threat to themselves or others. This is already an issue of the “can God make a rock so heavy he can’t lift it?” type. It is an agreement where you waive your future self’s rights.

    Now, you might question whether our society should have any such agreements at all. From the deontological perspective, denying your own agency is a contradiction. You cannot meaningfully consent that your consent shouldn’t matter. But a conditional, temporal denial of your own consent might be permissible.

    But anyway, we have them, as long as involuntary psychiatric commitment is a thing. (In fact, if you try to justify the court system from liberal principles at all, you have them there too). Society has taken what is by default their responsibility and made it yours instead. At the point they are standing before you, it’s too late for them to change that – the rock is too heavy for God to lift at that point in time, at least.

    But you might argue that they should be allowed to opt out of the agreement at a point they are not your responsibility. Contact the local medical authorities at a point where you are not suicidal, and declare that you do not wish to be hospitalized over concerns that you’re a threat to yourself. From liberal principles, you should probably be allowed to do that.

    But if you do, the authorities, on their end, might reasonably decide to get out of other agreements with you that they’re a party to (usually as the enforcer). Maybe they won’t agree to protect you from employee discrimination based on mental health, for instance (after all, it is sort of your employer’s business if you reserve the right to suddenly kill yourself). They might decide to not protect you from “unlawful” dissemination of your mental health information. These are agreements, “contracts” if you like, that might reasonably be considered part and parcel of accepting involuntary hospitalisation.

    • Jiro says:

      But if you do, the authorities, on their end, might reasonably decide to get out of other agreements with you that they’re a party to (usually as the enforcer).

      That is unfair because the authorities have a legal monopoly on being an enforcer. If the government on the end of the “bargain” decides to get out of other agreements, they still reseve the right to keep you from making those agreements with someone else–you cannot, for instance, hire another enforcer to protect you from employee discrimination based on mental health. Furthermore, the bargain is not “agree to be involuntarily committed, and we agree to not let employers discriminate based on mental health”, the bargain is “pay taxes and agree to be involuntarily committed, and we agree to not let employers discriminate based on mental health” but your description of breaking the bargain leaves out any provision for not paying the taxes.

      • Harald K says:

        “That is unfair because the authorities have a legal monopoly on being an enforcer.”

        They do not. They have a de-facto monopoly on certain means of enforcement, but in reality, those means are rarely used anyway. If you decide to seek protection from discrimination via a union, or an organized boycott, they will not stop you. (Usually. Of course the state does a lot of things it ideally shouldn’t).

        But I don’t want this to become yet another discussion on government. The point is that there is an agreement where you – sort of – consent that doctors may do things to you that you are in no state to accept or refuse.

        Reservations make sense according to the logic of such an agreement, and I think we should strive to let people negotiate such reservations as much as we possibly can.

        But on-the-spot refusals do not make sense, if involuntary admissions make sense at all. If you (by silence) consented to let others legally evaluate whether you are of sound mind in certain cases, you can’t change your mind about that when you are in the position that they rule that you aren’t of sound mind.

        But reservations or not, I think that the agreement enforcer (the government) should give medical authorities a good deal of protection from prosecution in cases where they exercise their professional judgement. If Scott refuses to subject a certain person to involuntary commitment, and this person goes right out to kill themselves, that does not mean Scott failed to do his job. It doesn’t even necessarily mean Scott made the wrong call in that particular case! You’d need statistics to judge that sort of thing.

        Certainly it’s perverse of the government to force people to pay for their own involuntary commitment.

    • Caspian says:

      It would be clearer to call it a standard set of rules, rather than a standard agreement, since it’s pretty much decided by the more powerful, enforcing party rather than mutually agreed. I mean you probably could get people to agree, same as people will click an EULA, but what’s the point? It can be enforced without their agreement. It seems like calling it an agreement or making it an agreement just obscures the power differential.

  29. Jack V says:

    I’m more thinking contracts are like most freedoms — in principle, you should be able to write a contact about most things, but the list of exceptions are not a detail, but rather, a massive tome which is a defining feature of civilisation. Contracts shouldn’t be incomprehensible to one side. Contracts shouldn’t have disproportionate penalty clauses. Contracts shouldn’t allow all sorts of unfair things when one side has disproportionate bargaining power to enforce them. Contracts for basic common situations (eg. marriage, insurance, employment) need to include clauses for all sorts of common occurences people might not have thought of if the government didn’t make them…

  30. Tarrou says:

    It would seem to me there is a practical implication for this general argument. How difficult is it to reverse whatever restriction of rights there is? I must unfortunately argue from specific examples rather than principle here, because practicality.

    1: Consider the case of “selling oneself into perpetual slavery”. This would be a permanent abrogation of almost all other rights, with no recourse once done. But we allow a temporary, softer version of this all the time. It’s called military enlistment. You literally sign away most of your constitutional rights for a set period of time.

    2: Then consider a middling case, such as the one Scott talks about, involuntary commitment. This is not permanent, but it is incredibly hard to convince people you are not crazy when they are convinced you are. There were studies done in the ’70s. Perfectly normal people can’t get out of a mental hospital, everything they do is interpreted as insanity. If you allow abrogation of rights here, it isn’t something that can’t be undone.

    3: Now consider the very silly. Companies putting “non-criticism” clauses in their CSA. These, in addition to being nearly unenforceable, possibly illegal and usually more hurtful to the company than beneficial, aren’t too hard to avoid. Just don’t buy their product. Unless it’s some sort of medical device, I look a lot less askew at something like this.

  31. naath says:

    In the specific case of worrying about involuntary committal why not instead remove the ability of the doctor to lock someone up? Or at least move to a system where they get to have a right to argue back. From my (non-expert) perspective a person who confesses suicidal tendencies to the wrong person has fewer rights than a person who commits even the most horrifying of crimes – with no right to representation, or a (hopefully) fair trial. I just don’t see how that is fair. Furthermore it is a factor that would actively deter me from seeking treatment, which is surely causing other people to not seek treatment that they would be happy to accept.

    Especially considering the long list of stupid reasons people have used to get people they don’t like labelled as “mad”.

    • Nikias The Random Blog Commenter says:

      Yes, involuntary committal is a human rights violation. Also, self-harm is a human right (you own your self, and you have the right to damage what you own).

      This is the basic confusion in Scott’s example, that you need the right to waive rights in order to get out of a rights violation.

      • Mugasofer says:

        >self-harm is a human right (you own your self, and you have the right to damage what you own).

        You also have the “right” to sell what you own. Do you believe we also have a “human right” to slavery?

        • Anonymous says:

          The right to own yourself is considered to override the right to sell yourself. To an extent that is the definition of outlawing slavery. I. The U.S. It has sort-of gone in reverse, with SCOTUS saying the 13th amendment means everyone fully owns themself.

          • Mugasofer says:

            That isn’t really normal “ownership”, then, is it? It’s a kind of “ownership” with certain rights usually inherent in ownership removed, for safety reasons.

      • Murphy says:

        The idea that you own yourself is a libertarian concept, hell it’s the root of libertarianism.

        That is not the only philosophy.

        In many countries you don’t own yourself.

        In some you are sort of the property of the state.

        In others any part of a living human simply can’t be the subject of ownership and neither you nor anyone else can ever own you or your body.

        Depending on where you live it’s very likely that if you die your body legally belongs to the state and is not part of your estate when you die, if there’s a plague or disaster it’s both the governments right and responsibility to dispose of it.

    • Harald K says:

      Punishment and treatment are justified under completely different assumptions, which is why it seems that the murderer has more rights.

      When you are put in jail, there is little pretense that it is for your own good. However, with involuntary psychiatric commitment, the idea is (rightly or wrongly) that it’s something the person could have and would have consented to, if he were of sound mind. Only then he wouldn’t need it of course. This is why the threshold for putting people in jail is so much higher.

      I’ve argued elsewhere in this thread for a right to opt out, though not without consequences. Just as you might be forbidden from working in kindergartens if you reject immunisations, there are maybe some things you wouldn’t be allowed to do if you pre-commit to rejecting psychiatric treatment. But it’s very important for society to give such options, as much as we possibly can, whenever we force people to do something “for their own good”. Even if we are absolutely sincere and justified!

      Involuntary psychiatric commitment has historically been abused a lot, most famously in the Soviet Union post-Stalin, so a right to opt out in advance should be defended even if we think there’s no reason to use it right now.

      • Mugasofer says:

        >When you are put in jail, there is little pretense that it is for your own good. However, with involuntary psychiatric commitment, the idea is (rightly or wrongly) that it’s something the person could have and would have consented to, if he were of sound mind. Only then he wouldn’t need it of course. This is why the threshold for putting people in jail is so much higher.

        This does seem like it would justify a “lawyer” figure for psychiatric patients, though – to represent their interests when they are incapable of doing so.

  32. Shenpen says:

    Dear Scott,

    I think it is simpler than that. You are basically saying it is possible write rules so good that even if everybody is behaving like an utter selfish asshole to the extent the exact letter of the rules allow it, the results are still good.

    No, it is not possible. At the end of the day, only that works if the judge or jury interprets not just the letter of law, but the intent, it tries to figure out, merely with the help of the law, if your were being just or unjust.

    This means every functional society needs a sense of common-sense justice, a sensus communis, to function. Judges can say “The plaintiff is technically right, but still an asshole. Case dismissed.”

    This means you must trust judges, and you must trust something as vague as common-sense justice can be determined.

    My point – you need to trust people to some certain extent, you cannot just trust rules.

    Without a certain amount of goodness in people – at least some people being reliably good and be trusted to be so: judges – nothing can work.

    No rules ever would make a society of assholes work.

    For this trust, you need to be to some extent monocultural. So that you can have a strong cultural societal agreement regarding what is just.

    For example rules on the subway of Austria do not forbid drinking alcohol, only excessive drinking. It is not defined how much is excessive. It is cultural, you trust the controller has the same idea as everybody else. But it is only true if they are reasonably monocultural. Only this works, because if you want to rely on rules, you either must tolerate all drinking or completely forbid alcohol it and both suck.

  33. vV_Vv says:

    In order to sign a valid contract you need to be mentally competent. Having just attempted to commit suicide looks like pretty strong evidence that you may not be mentally competent at the moment, so how could you possibly be allowed to sign a legally binding contract? What court is going to enforce it?

    I suppose that suicidality doesn’t necessarily imply mental incompetence, and people should be allowed to commit assisted suicide after their mentally competence has been assessed by a thorough psychiatric evaluation (as in the Swiss model), but suicidality is certainly prima facie evidence of mental incompetence.

    Moreover, even assuming that you could be sure that people who sign such contracts were mentally competent, the mere possibility of entering the contract may be harmful to them:

    Suppose that you attempted suicide and you really want to get treatment in a hospital, but you are afraid of the social consequences of doing so (your mother/kid/boss/etc. being upset that you spent time in hospital). Involuntary commitment is a pretty strong justification to hold against them. They may be mad at you because of your suicidal attempt, but they can’t be rationally mad at you even more because you were hospitalized as a consequence of it.

    If you have the right to refuse hospitalization, and still choose to be hospitalized, then your choice can be socially held against you. Either you stand by you choice and damage your social status even more, or you don’t and thus fail to get the treatment that you actually wanted.

    • Cadie says:

      You’re assuming that someone who would be angry or upset at someone else’s hospitalization for a serious health issue is going to be rational. The idea many have is that people who go into a hospital for voluntary treatment are less ill than those forced in, and thus held in somewhat higher esteem – especially since the things people may check themselves in for are more varied than the things they can be committed without their consent for. For example, many people would view someone more negatively for hospitalization for attempted suicide, schizophrenia, or psychotic mania than for alcoholism treatment or even an eating disorder (and bulimia, in particular, doesn’t always show symptoms a layperson would notice – it can be difficult to detect because many people with it are at a normal weight and/or fluctuate within a relatively small range indistinguishable from yo-yo dieting.) Alcoholics and bulimics face some stigma, but most people don’t view them and their households as dangerous and to avoid at all costs. The unfair stigma with committable illnesses is stronger. So with voluntary treatment, it’s easier for potentially hostile family members to pretend the issue was something less of a social liability for the patient and themselves, and react less negatively.

      • vV_Vv says:

        People are risk averse. If you remove the distinction between committable and non-committable mental illness by banning involuntary commitment, people will tend to assume the worst-case scenario.

  34. Anonymous says:

    This power wouldn’t just be used to let people go. It would make keeping people against their will a lot less risky if you can get them to waive their rights to sue you. For both medical and law enforcement practitioners.

  35. Sarah says:

    Is this post *seriously* just noticing the reason why freedom to contract is useful?

    The whole SSC trend seems to be towards evolving classical liberalism from first principles. Which is kind of wholesome and adorable, but dude, we knew about this.

    • 27chaos says:

      Similar sentiments here.

    • Vaniver says:

      I will note that if you want to convince other people of things, starting where they start is a good way to do so.

    • Jaskologist says:

      See The Great Relearning.

      Just wait until he starts seriously thinking about marriage. I just hope he does so before it’s too late for him to start a family.

    • Patrick says:

      The entire rationalist/less-wrong community seems to exist in order to re-invent other philosophical systems, but with their own sword-and-sorcery themed jargon. I suppose I support this- maybe future generations will find discussing rationalism more fun once it is whimsically themed with castles and demons and wizards.

      • Sarah says:

        “Was du ererbt von Deinen Vätern hast, erwirb es, um es zu besitzen.”

        What thy fathers have bequeathed to thee, earn it anew, if thou wouldst possess it.

        But, y’know, *afterwards* maybe crack a book open.

  36. Alex Godofsky says:

    I don’t think you’re getting anywhere with this because the example just doesn’t work. You’re asking the same policymakers that created the legal obligation in the first place grant you a way to escape that legal obligation. If they thought it should be escapable, why would that have created it as they did in the first place?

    The simpler answer is to just ask them to repeal the obligation.

    • Irenist says:


      I’m honestly confused as to why this post is about waiving lawsuit rights, rather than about getting rid of involuntary commitment laws for those who are only a danger to themselves, rather than others.

      Either it’s a good thing to involuntarily commit those people (to save their lives) or not (because it will wreck their lives). But if you’re going to have such a policy, you have to enforce it.

      Of course, it’s understandable that Scott might like a policy where he can involuntarily commit where he thinks it’s a good idea, but not get sued if he errs. But doctors do err. So either get rid of involuntary commitment or don’t. The lawsuit issue just seems like a distraction here.

      • Cadie says:

        I think that modifying the rule to retain commitment of those who are a danger to others, but not only themselves, would be the best way to go. There’s a compelling public interest in treating people who are at an extremely high risk of harming others – there’s no perfect solution here and this one seems the least awful. But if they’re adults and harming no one but themselves, there’s not as much justification.

        I have a refractory mental illness that is fortunately mild enough that it doesn’t make my life hell and only slightly limits my employment options. Sometimes treatment doesn’t work or doesn’t work well, and there’s no guarantee that effective treatments will be made soon. It’s unpleasant, and hasn’t responded at all to therapy, and only a little bit to medication, but even with the remaining symptoms, I’m not suffering so much that I don’t feel life is worth living. If it was much more severe, though, to the point I couldn’t work or have good social relationships at all, it would be horrific to force me to live another 40 years with little relief. A pet suffering an equivalent amount would be put down; humans don’t even have that option and can’t elect to do it themselves legally (except in a few places, in a limited fashion, if they have a painful illness that will kill them soon anyway). Even though I want to live, I’m uncomfortable with the idea of making it mandatory to the point that a person will be hospitalized and forced to comply if they don’t want to.

    • vV_Vv says:

      It seems that Scott wants to retain the power to commit people while being able to make deals with his patients not to commit them in exchange of them not suing him.

      The potential for abuse should be obvious: doctors could use this to cover their asses from malpractice lawsuits by threatening basically every patient with involuntary commitment (a form of imprisonment where you have even less rights than a convicted criminal in a prison) in order to force them to waive their right to sue. In principle patients who refused to enter the deal could sue for being committed without a good medical reason, in practice it is difficult for a committed patient to get legal representation, and they would have to prove that their treatment deviated from the “accepted standard”, which is defined by, guess, doctors.

      Not being able to waive you right to sue for medical malpractice someone who could threaten you with involuntary commitment looks like a textbook case where the state prevents parties with an extreme disparity of power from entering a contract that would most likely damage the weaker party. I find somewhat ironic that the author of the “Anti-libertarian FAQ” fails to see this. He must have succumbed to the near-universal human tendency to rationalize one own self-interest as it was the interest of the society.

  37. Stuart Armstrong says:

    Moloch rears its head again. Limiting people’s rights – say, limiting the right of workers to waive away their statutory holidays in countries where these exist – can prevent a race to the bottom.

  38. Erik says:

    The reductio ad absurdum is the EULA that says “By opening this product, you agree not to sue us if this product malfunctions and hurts you, not to give us any negative feedback, and not to object if this product monitors everything you do and reports it back to us.” And people never read those things, so it basically means companies can be above whatever laws they choose.

    IMO, that’s an independent absurdity which says little about contract. It’s not even consistent by state whether EULAs are binding at all – some places, both in the US and internationally, have ruled that EULAs aren’t binding because they appear after purchase and without proper notification about extra conditions at time of purchase. That’s not part of the sale contract, that’s a unilateral instruction issued separately.

    (Which has resulted in some companies trying to weasel out of it again by saying that they’re not *selling*, but *renting out*, this thing that comes with a single price tag for indefinite duration rather than a periodical fee, and a physical copy you can keep, and various other characteristics of a sale.)

    And failing that, even if one does take the EULA as binding in the first place, it’s countered by placing an order for the product and mailing payment in an envelope with one’s own “By opening this envelope you agree to exempt me from the EULA” counter-EULA on.

    On top of that there’s the complete lack of enforcement of EULAs which are violated a million times a day in harmless ways that the companies are unable to notice, let alone prosecute, which in some common-law-like jurisdictions means that the company forfeits its right to prosecute such breaches in the future. And then there’s other stuff like the case of the too-clever-by-half hackers who remove the EULA from a program before they install and run it, thereby never having to agree to it. Court might laugh at it, sure, but the hackers laughed at the EULA in the first place, and at this point I think we’ve long since left the realm of contract law, passed through the lands of who is the better hairsplitting sophist (aka: lawyerdom), and are heading for the region of who has power and enforcement capability to do anything about a disagreement.

    I agree with the general thrust of the post, that it’s important to be able to make contracts, but there are concerns. And I agree that EULAs are an absurdum. But I’m not seeing the reductio. EULAs are very much not a serious thing, and they are extremely historically contingent. Imagining them in the context of absolute contract law, which we don’t have, is a false ceteris paribus. If a strong, full contract law were being built from the ground up, where things like EULAs had to be taken seriously, I’d expect a lot more small and narrow-field mediation tribunals which people contracted to follow the judgment of, and a lot fewer things like our EULAs.

    This section of the argument feels like one of those funny science-oid quotes about how if the gravitic constant were higher we’d all die because something something escape velocity of toxic gases in the atmosphere. That’s only relevant in the case of a sudden changeover; in the case of a universe which always had that higher gravitic constant, “we” wouldn’t die because “we” would be different lifeforms. So if anything, the reductio is not against contract but against suddenly deciding to retroactively enforce all EULAs exactly as written, which I hardly think needs counterarguing.

  39. blithe spirit says:

    the view from hell is clear and bright, where the right to waive your rights has been waived away and every cradle is a grave, aping insight to overcome bias with unqualified reservations on a slate star codex

  40. Deiseach says:

    Also, we’re assuming that Scott is a competent professional who never (or very rarely) gets it wrong. But suppose he screws up? Suppose he does involuntarily commit someone who wasn’t a suicide risk, or permits a suicidal person to leave when he should have stopped them?

    In that case, the “waive your right” looks like less “giving my patients agency” and more like “covering my ass”. Doctors do screw up, as in this case where an out-of-hours supply doctor apparently mistook the symptoms of carbon monoxide poisoning for the winter vomiting virus (he’s not the one being tried in this case). Now, it seems this is very easy to do, but all the same… you’d hope your doctor could tell the difference between “this will kill you within hours” and “you’ll only feel like it will kill you in a few hours”.

    • 27chaos says:

      Even this assumes Scott is merely a bumbling incompetent. Suppose instead that Scott is secretly evil. Imagine him talking patients into signing away their rights, then knowingly giving them inappropriate treatments, then laughing at their suffering.

  41. OldCrow says:

    Okay, I see two possible ways around this problem:

    1. Allow contractual pre-commitments along the lines of a DNR. I think it is very likely that someone who has recently attempted suicide is “not in their right mind” – that is, their brain is manufacturing false beliefs that justify their suicide, while ignoring evidence that contradicts those beliefs. Many people here seem to agree with me. But that argument is much weaker if someone signs a Do Not Commit in advance, while not presenting any obvious symptoms of mental illness.

    2. Allow some doctors/medical institutions to waive their ability to involuntarily commit people who pose a threat only to themselves.

    Idea #1 doesn’t help people who didn’t have the foresight or capacity to sign a waiver ahead of time, or children/teenagers. Idea #2 won’t necessarily help someone who was just brought to the closest hospital after a suicide attempt, but it should make it easier to seek treatment beforehand. Maybe every doctor wants to opt out of involuntary commitment, solely because they don’t want to be sued. I don’t know if that would happen, but it would be an interesting experiment.

  42. no one special says:

    To: those afraid to tell therapists about their suicidal thoughts.
    For use as evidence in a Bayesian update.

    I was suffering from a severe depression, and wanted help from a therapist. I took advantage of my employer’s employee assistance program, (which gets you a set of 5 free therapy sessions a year.) I had done this before, and had wasted (IMO) the first 3 sessions while the doctor determined that I wasn’t going to kill myself.

    So, I opened this way:

    Can we just skip the part where you try and determine if I’m a danger to myself or others? I’m depressed and angry, and while I have thoughts that I would be better off dead, I have no plans to kill myself, nor do I want to. I want to get rid of the negative thoughts. Likewise, while I have thoughts that I’d like to see my enemies suffer, I have no plans to attack them, nor do I enjoy hurting people. So lets just skip that part and get to the part where we work on eliminating the negative thoughts.

    The doctor gave a long pause, then said “okay.”

    I’m not sure how common the thought “I wish I was dead” is. Other comments here seem to imply it’s less typical than I expected. But it is not a one-way trip to involuntary commitment. I expect that professionals are able to tell the difference between feeling bad and actively suicidal, and will only commit those who are high risk.

    • Ken Arromdee says:

      The problem is that it’s a *chance* of a one-way trip, and the chance is based on pure luck because you can never predict exactly what the doctor is going to think.

      • no one special says:

        (Status: I’m not even a Bayesian.)

        Your prior for involuntary commitment should be low. Your P(Involuntary commitment | You said “I sometimes feel like I would be better off dead”) is also low.

        I suspect P(Involuntary Commitment | You tried to kill yourself today already) is high. As is P(Involuntary commitment | You say “I have a plan to kill myself.”)

        I suspect that people have an irrationally high P(Involuntary commitment | You said “I sometimes feel like I would be better off dead”), which causes them to avoid getting treatment that can help.

        So, the chance is not based on pure luck. We may not have the exact numbers, but we can look at the factors and see what will make it more or less risky. Perhaps Scott will give us glimpse into the Psychiatrist playbook so we can see what indicators are strongly likely to cause commitment, and which are less likely. This is really asking for [ X | p = P(Client is likely to actually commit suicide | X ) for X where p > how much risk of getting sued Scott is willing to take].

        (I feel like combining a list comprehension with a conditional probability calculation is an offense against the gods of Formal Grammars. There’s a special place in programmer hell waiting for me; I’ll probably be required to write a FORTRAN 77 Parser in FORTRAN 77.)

    • CAE_Jones says:

      wasted (IMO) the first 3 sessions while the doctor determined that I wasn’t going to kill myself.

      Pretty much how my first attempt at talking to a psychologist went. The cynical parody-generating module in my brain decided that it almost sounded like the counselor was trying to talk me into being suicidal. (The rational part knew this was unlikely, but it is easy to imagine as a satirical skit.)

  43. Watercressed says:

    What about making a special procedure for the definitely binding contract? The procedure needs to involve some cost or hurdle, to prevent it becoming the common standard for contracts.

    I suggest requiring signature of three copies of the contract, in blood.

  44. oneforward says:

    “You don’t understand! I have to transport my adopted daughter’s boyfriend to safety. This man’s done no wrong, and he needs a doctor’s care. Another hour yet, and then I’m yours, and all our debts are paid.”

    Thank you for reminding me that this is good music I should be listening to.

    (Also, I’m not sure how this example fits into your point. Committing him would have been terrible, but he did basically commit suicide when let go. And killing yourself doesn’t help at all.)

  45. Arthur B. says:

    In Law’s Order, David Friedman gives of cases where restricting contracts can be economically efficient.

  46. Sieben says:

    It sounds like you don’t really care about contracts and just want the world to be a place where good people can act in good faith.

    Rights for nice people.

    No rights for mean nasty people who might use contracts for their own selfish advantage at the expense of groups we’re supposed to feel compassion for.


  47. Platypus says:

    It sounds like you don’t so much want “people should be allowed to sign a contract waiving their rights” as “we should repeal this law that says I have to commit people for treatment if they attempted suicide”.

    …And I honestly — I mean, I don’t have your experience, but I kind of feel like, if someone has just attempted suicide, their argument that they have a bunch of responsibilities they have to take care of starts to feel not-very-credible.

    • Patrick says:

      When I was in college, my roommate made something very much akin to a series of threats of suicide. I wasn’t sure if they were serious. They could have been. Certainly he had been on a several month long downward spiral into what was either serious depression, or else self indulgent drama (locking himself in the bathroom for hours, writing himself notes about how much of a loser he was, internet-stalking his ex, etc). I informed the university. His immediate response was to be enraged at me because my actions could impact his ability to get into medical school.

      I can easily imagine a scenario where he engaged in some sort of suicide-attempt-like self harm in a moment of either particular misery or particular need for attention, and exactly the same set of events taking place. Me informing authorities, him angry because I took his nonsense out of the comfort zone he had created for himself, and made it a real part of his permanent life.

      I remember once asking him about creationism. His response was pretty clear- he was a committed, dedicated, honest-to-god creationist. On Sundays. Not elsewhere. We are a species capable of that kind of nonsense. I think we can manage trying to kill ourselves at 2 PM and worrying about picking up the kids from school at 3:00.

    • Anonymous says:

      When I was younger I was most suicidal when I felt suffocated by my responsibilities and terrified of failure. So if someone had tried to force me to stay alive and also take away my ability to do the things I had to do, I probably would have had a heart attack on the spot.

    • Scott Alexander says:

      I agree that changing the rules around commitment is one solution. But it might be that we like the rules around commitment, and think psychiatrists when left to themselves are going to mostly do the right thing with who they should and shouldn’t commit. I’m saying that even if we trust psychiatrists’ judgment a lot, the current system doesn’t allow them to exercise that judgment.

      Completely removing the ability to commit is the “nuke it from space” solution, and in this case I wouldn’t necessarily be opposed, but I worry that there are similar incentive problems in a whole lot of other areas.

      • Burninate says:

        What I don’t understand is why there is this pretense that a doctor’s release constitutes a functional, lasting, binding guarantee of sanity. Mental illness is not, and has never been, as clear as that. I don’t understand why you and the medical profession’s lawyers think you can infer a malpractice standard on engineering a temporary state of mind… and importantly, if you *can* infer this standard, then isn’t every doctor who involuntarily commits for three days, releases, and then observes the suicide a week later, committing a much less nuanced, more culpable act of malpractice liability?

        The triage / triggering event is an at-a-glance judgement, and any at-a-glance judgement should be treated with less scrutiny than the outcome of days of inpatient care – yet inpatient care can’t guarantee outcomes either.

        Tortious malpractice is something I have no issue with, but tortious malpractice being extended from surgical procedures & internal medicine mistakes to *controlling the deliberate actions of the victim* against the victim’s own will, seem a bridge too far.

        Can you give me any examples of warranted psychiatric malpractice suits for post-care suicides? If not, then your problem isn’t “limiting contracts” canonically, it’s with this particular reductio ad absurdum.

        • Anonymous says:

          It’s not about guarantees at all. Malpractice occurs in the combination of the doctor deviating from convention and something going wrong. If the doctor follows convention, he’s safe. If he deviates, he plays the odds. If the conventions are well-designed, it’s reasonable (or at least not insane) to enforce them on the doctors.

  48. I attempted suicide and was sent home without going to a psych ward twice. The first time I was sent home that day (as in, I overdosed at 11pm and was home in time for tea.) The second time I was hooked up to a heart monitor overnight.
    And I didn’t beg not to be hospitalised. (If my dad hadn’t been there, I would have begged to be hospitalised the first time.)
    I guess the law and culture in the UK are very, very different regarding this specific issue.

  49. Elizabeth says:

    Your character said said “my sainted mother” and then “it’s not just my father”, which seems wrong.

  50. Eric Rall says:

    I’ve heard about a similar issue with skydiving. It’s an inherently dangerous activity, and it’s standard practice for the people who operate skydiving services (equipment rental, instruction, taking you up on the plane, etc) to have their clients sign a waiver saying they understand it’s an inherently dangerous activity and agreeing not to sue if an accident happens. When accidents do happen, if the client (or their family) sues, courts sometimes set aside the waivers (*).

    (*) This seems to depend on the state. California in particular has a reputation for being plaintiff-friendly in personal injury lawsuits.

    The solution I heard about was to also take a video recording of the clients talking about how they understand and accept the risks. I don’t know if these have ever gone to court, but the theory is that making a video explaining acceptance in your own words is much stronger evidence of informed, conscious agreement than a signature on the bottom of a page full of legalese.

    • Princess Stargirl says:

      That seems quite reasonable to me in concept. A video really does show much more understanding.

  51. Kaminiwa says:

    Um. Simpler solution? Change the laws that require you to involuntarily commit someone.

    It seems really obvious that, as a general case, “ability to waive your rights” is going to be ridiculously abused, especially when you’re explicitly aiming this at mentally ill people who clearly aren’t making good decisions. In your specific case, there is obviously a clear exception. So rather than unleash a generalized evil upon the world, why not just address the specific case?

    And given the specific case is caused by a law *explicitly* requiring you to do X, it seems pretty trivial to say “don’t have laws explicitly requiring X, because X is actively harmful”.

    Apologies if I am missing some obvious reason why this isn’t viable. But I don’t get why you would generalize from this one case, especially after establishing that the generalized case leads to horrible awful places o.o

  52. J. Quinton says:

    Joining the military, you sign away some rights. Double jeopardy, for example, is a legal consequence for committing a crime while you are in the military: you can be charged for the same crime in both the civilian and military court. Apropos the topic of this post, you’re also not allowed to sue military doctors for malpractice (IIRC).

  53. Princess Stargirl says:

    I think whether he likes it or not Scott is becoming one of the leading libertarian philosophers of our time. In my opinion the leading an-cap thinker is David Friedman. And David Friedman just called Scott a “Modern Orwell.” And if the leading an-cap isn’t Friedman its Caplan and his review of Scott was glowing. I do find it a bit strange Scott’s writings tend to be deeply beloved by people he does not feel a political affinity with (note Friedman and Caplan are true ancaps, not moderate libertarians).

    • suntzuanime says:

      Orwell was a heterodox Socialist, so a libertarian calling Scott the successor to Orwell probably does not count as anointing him as a libertarian philosopher.

    • blacktrance says:

      I wouldn’t call Scott a libertarian, even a moderate one. I would describe him as a progressive, though a more heterodox and market-oriented one than usual.

      • houseboatonstyx says:

        What I’ve seen reminds me of the political remark “We’re using our tools to fix their car.” Here, using Libertarian or Traditional tools for Progressive ends.

      • MugaSofer says:

        Hasn’t Scott referred to himself as a libertarian on several occasions?

        A moderate one, to be sure, but still libertarian-identifying.

        • Eric Rall says:

          I think this is the closest I’ve seen Scott come to self-identifying as libertarian

          To many people, libertarianism is a reaction against an over-regulated society, and an attempt to spread the word that some seemingly intractable problems can be solved by a hands-off approach. Many libertarians have made excellent arguments for why certain libertarian policies are the best options, and I agree with many of them. I think this kind of libertarianism is a valuable strain of political thought that deserves more attention, and I have no quarrel whatsoever with it and find myself leaning more and more in that direction myself.

          — Anti-libertarian FAQ, question 0.3

          Overall, my impression of Scott’s politics is that his general philosophical approach is utilitarian pragmatism combined with a visceral reaction against bad arguments (especially Dark Arts arguments), and his policy preferences are mostly a mixture of soft libertarianism and mainstream American center-left.

    • Anonymous says:

      “Leading… philosopher of our time” is massively, massively overstating his influence, or even the quality of his contributions (see Sarah’s point on classical liberalism above). Don’t get me wrong: I like Scott, but the ability to write lucidly and relevantly on intro-to-political-philosophy topics does not a great philosopher make.

      • Randy M says:

        The bit you are eliding with the elipse does qualify it, though, if he doesn’t think out time has a large number of superior libertarian philosophers.

    • Protagoras says:

      Why are we trying to pigeonhole Scott into a tribe? The problems with linking your ideas to tribal loyalty are one of the main themes of this blog.

  54. Markus Ramikin says:

    “This situation kinda maps on to the Prisoner’s Dilemma, you know. We can both cooperate – I send him home, he doesn’t sue me. I can cooperate while he defects – I send him home, then he sues me. I can pre-emptively defect against him – commit him to hospital.”

    Does a broader term than Prisoner’s Dilemma exist that would make that first sentence more accurate? Because I get what you’re saying, but this situation doesn’t map to a Prisoner’s Dilemma at all: payoffs aren’t PD-like, decisions aren’t independent (if you commit the patient, they can’t sue you any more), and you have power over the other player.

    And these differences matter; that last one is why the idea of letting the other player remove their ability to defect against you makes people nervous. Calling the situation a PD is a little misleading then, implying that a mechanism for producting “cooperation” would be an unambiguously good thing.

  55. TRex says:

    A lot of discussion here has centered around finding examples of people waiving their rights, and whether those examples really involve waiver. Here’s a class of transactions that’s a pretty good example of rights waiver: criminal plea bargains.

    For decades, plea bargains were frowned upon and happened only with a wink and a nod. When the Supreme Court dragged this practice into the light of day and approved it, the Court explicitly relied on contract principles. If a prisoner can save some sentencing time, and the government can save some trial/prosecution time, why not let everyone benefit?

    When a defendant agrees to a plea bargain, she waives the right to a trial, along with the right to present evidence. I can’t remember if the defendant also limits her ability to appeal (and there may be other rights involved).

    The process of reaching a plea bargain usually cannot be used in court. In other words, if the prosecutor and the defendant are debating a plea bargain, and the defendant backs out, the prosecutor cannot later say at trial, “Well, she was willing to take a deal! And listen to what she said…”
    In at least some cases, however, the government has made waiver of this right to confidentiality a precondition of the plea process. In other words, the government has refused to bargain at all, unless the defendant agrees that anything she says during the plea bargaining can be used against her in court. Obviously, this places the defendant at one heck of a disadvantage in the bargaining process – if the deal goes south, the jury can hear that the defendant was willing to take a plea, and anything else she said during the plea bargaining.

    I find this latter waiver of rights disturbing. As I’ve previously argued here, federal prosecutors have a lot of bargaining power on their side already. Using that bargaining power to obtain waiver of a right so that prosecutors have even more power, just aggravates the imbalance of bargaining power.

    But anyway, here’s a further example of rights waiver.

  56. Foggen says:

    I read the Chicken/Thermonuclear War analogy as a direct refutation of your entire premise. If the hospital wants to protect itself, its maximum strategy is to waive the ability to send someone home.

  57. ta74747 says:

    It sounds to me like you simply disagree with the standard of care for psychiatric emergencies. You think there should be exceptions for certain types of hardships to the patient that are allowed to be balanced against the risk of suicide when considering involuntary commitment. This seems to me a more straightforward way to address the problem you present than allowing patients to waive their right to sue for malpractice.

  58. DanielLC says:

    If you can waive all of your rights, then some idiot is going to sell himself into slavery. Some people might manage to do it for a good reason, but it’s hard for there to be a good reason, so I suspect a lot of them won’t. It might be a good idea to give them more leeway, though.

    At first it seems like letting someone sign a waiver that keeps them from suing you is the same as just not requiring you to force your patients to get treatment. I guess there is a difference though. They might be more hesitant to refuse treatment if doing so requires signing away rights.

  59. DanielLC says:

    Should you be able to waive your right to waive your rights? Could you waive the right to do that?

  60. Abel says:

    Weird lawsuit stuff in America.

  61. A.Person says:

    Contracts are only as powerful as the law’s ability to enforce them. Contracts that would lead to things like slavery can be countered by the higher social contract of the law stating that it will not enforce such contracts, or having laws against slavery in the first place. Now there are grey areas, but the more democratic a country enforcing such laws, the more such laws will hew towards the average notion of the range of practices which constitute forms of “exploitation” it is best for the law to take an active role in tackling.

    In the case of committing a mental patient, it could run in the opposite direction. A law could be made which bans suing for malpractice (or in the negative sense, the law will simply not enforce such a thing, so no money can be extracted), in the specific set of cases when the malpractice involves relinquishing control of the patient’s own autonomy. The law would see shooting yourself as your fault de facto, when there are no extenuating circumstances of blackmail, and this is regardless of whether doctor could have theoretically helped by committing you. He should not be held accountable for his errors in not acting. No more than Italy should have prosecuted geologists for not predicting an earthquake. Punishing passive failure as well as active failure reduces the number of people who want to take up practice in the long run.

  62. Bright Cloud says:

    My only comment here is that, having been to (an adolescent section) of a psychiatric hospital, one of the things that I took away from the experience is that it can be rather easy to get oneself out of an involuntary commitment in a short amount of time because fundamentally the whole system relies on you being honest and open about what you are feeling, and people who really want to kill themselves or self-harm will play the system to get out and do what they want. While I was in there, there were a couple people who were discharged while I was there who had admitted to other patients that yes, they were still suicidally inclined, but yes, they were still getting discharged anyway and still planned to attempt suicide again. While I don’t think that it’s always a bad idea to offer inpatient treatment, and it certainly can help in a few ways that outpatient treatment can’t in my experience, I think sometimes unfortunately all it will teach someone is how to lie to doctors.

  63. I volunteer at a suicide hotline, which is obviously not the same thing, but I do frequently have to decide if I should call for an active intervention, or make a CPS report. A lot of the time I feel grateful that the decision has been made for me, because having to do each one as a judgement call would be too hard, and involve too much guilt.

    Obviously you’ve got a lot more training and information than I do, but does that feeling still come up? Could it be worth committing people who obviously don’t need it in order to avoid having to make judgements on the more marginal cases?

    The harder cases for me are the people who seem like they’ll be genuinely harmed by commitment. People who will lose their job, or PTSD sufferers that are triggered by hospitals.

  64. Lizardbreath says:

    I’m more interested in the example in this post than in the “on princple” discussion.

    Example!Scott seems to be setting people up to at best be furious with him, and at worst to actually emotionally or even physically flip out on him. (Hey, maybe that’s a good thing–if Example!Scott feels bad about violating their autonomy, maybe it’s good if they throw a nice tantrum. Maybe then he can feel commital really is justified. ;))

    But seriously, Scott…people *don’t like it* when they’re set up to have something slowly dawn on them instead of just being told. Having it slowly dawn on them makes them feel stupid, *especially* when they just invested a lot of effort in behaviors (in this case, arguments) that were futile all along. Only they didn’t know that. Because they were set up for it to slowly dawn on them instead.

    …sound familiar? I wasn’t expecting this, but I just realized as I read my own words: Yeah, this totally applies to “women letting men down easy,” too.

    Ha! Actually I make the same argument to young women all the time: Just tell him. Just flat out *say you’re not interested*. That’s really politer, it’s more respectful, and usually it even gets a better response (cf. Gavin de Becker).

    Same here, Example!Scott. Just tell them. Just say flat out, just *start* the conversation with, “You attempted suicide. The rules are that I have to commit you. So I’m going to.”

    With “letting men down easy,” people often say the reason to do it is fear, and I agree that’s somewhat true; but IMX, the more usual reason is…erm…”underentitlement”? It’s a feeling that you don’t have a right to say this, and so you feel you need, basically, to “hope they’ll give it to you as a favor.”

    Turning someone down, you give an excuse why you “can’t” go out with him, and you’re thinking, “Please, take pity on me and *accept my excuse* and *let me go*.” (The problem is, he really has *no reason* to know it’s an excuse rather than a real obstacle that you want to overcome. You *told* him you want to, except for this obstacle! Don’t blame him when he comes up with a way around that obstacle!)

    And talking to a suicidal patient, you give an excuse why they surely *want* to spend some time in the hospital! Really! and Example!Scott seems to be thinking, “Please, take pity on me and accept my reasoning and *don’t make me openly force you*.”

    But people hate hate *hate* finding out only after the fact that, all along, they never had a choice.

    Example!Scott, the rules *do* say you should commit them. You *do* have a right to. In fact, apparently, you have a (legal, anyway) *responsibility* to.

    Just do it.

    Related joke:

    A man left his cat with his brother while he went on vacation for a week. When he came back, he called his brother to see when he could pick the cat up. The brother hesitated, then said, “I’m so sorry, but while you were away, the cat died.”

    The man was very upset and yelled, “You know, you could have broken the news to me better than that. When I called today, you could have said he was on the roof and wouldn’t come down. Then when I called the next day, you could have said that he had fallen off and the vet was working on patching him up. Then when I called the third day, you could have said he had passed away.”

    The brother thought about it and apologized.

    “So how’s Mom?” asked the man.

    “She’s on the roof and won’t come down.”

    All of that is completely aside from the more theoretical discussion of whether it’s a good idea for society to be set up this way, whether you *should* have a right to or a responsibility to. Certainly, maybe you shouldn’t. The above is only about how to behave respectfully in *this* society, where you do.

  65. j says:

    I wonder if you guys realize how dangerous that mandatory, involuntary hospitalization for attempted suicides is. It sounds much more like it’s intended to cover your asses legally than to help people. Yeah, it may save some lives, but I guarantee it’s keeping a lot of people who would otherwise ask for help from doing so.

    I have a friend who has strongly considered calling a suicide hotline several times, but then, on a suspicion, they Googled this question and found that the people on the phone can and will trace your call and send the police to your home to lock you up if they think you’re an imminent danger to yourself. Same with therapists and mental health professionals of all stripes. They present themselves as trustworthy and compassionate, but they are in reality also an arm of the law that says that suicidal urges abrogate your right to autonomy.

    I think a lot of very depressed people would love to try to get help, but the danger of being forcibly interred in a psych ward turns them off to the idea.

    That policy is a flat assurance that, no, you cannot trust the person who is telling you to trust them.

  66. I’ve been thinking that the right solution to this is that there should be some sort of ritual that is required to waive one’s rights. Something too costly and inconvenient to be demanded in a EULA, but not so costly and inconvenient that it prevents people from doing so when *they* decide that it’s really in their best interest to do so. Something along the lines of: you need a notary,a friend that you’ve known for over a year, $100, and a half hour of silence to waive your rights.