He received his law degree from Columbia Law School in 1951 and his medical degree from New York Medical College in 1957. He then undertook a postdoctoral fellowship at Harvard University in 1958/1959, which included a training programme funded by a grant from the National Institute of Mental Health. He would work as an internist in private practice and conduct legal work pro bono.
His seminal paper on "The Right To Treatment" appeared in 1960 in the American Bar Association Journal, marking the first published use of the term sanism in reference to the mentally ill. 50 different publications over a period of two years had refused the paper. It was not published by a psychiatric journal until 1965. At the time public mental hospitals were warehousing large numbers of patients often without significant treatment efforts or qualified treatment staff.
After publishing his right to treatment article in 1960 and, through a friend, getting the issue covered in the New York Times, Birnbaum was contacted by two separate psychiatric patients (Edward Stephens and Kenneth Donaldson) and he took on their cases. He would spend the next decade fighting such cases, financing them himself.
The case of Edward Stephens, a man with schizophrenia being detained for more than 30 years and without treatment, was unsuccessful, though he was later released.
A partial legal victory involving the right to treatment argument was the case of Rouse v. Cameron (1966), when U.S. Appeals Court Chief Judge David L. Bazelon, writing for the court, became the first appellate judge to say that civilly committed mental patients had a "right to treatment."
Birnbaum was involved in the Alabama class-action of Wyatt v. Stickney (cf Bryce Hospital) starting in 1970, U.S. District Court judge Frank Minis Johnson held that involuntarily committed patients are entitled to adequate care and treatment otherwise there would be a violation of the Fourteenth Amendment to the United States Constitution. Subsequent hearings defining this right continued for decades, becoming the longest mental health case in national history, and resulted in the "Wyatt Standards" - a humane psychological and physical environment, adequate staffing, and individualized treatment plans. However, as Birnbaum pointed out, there was little in the way of effective enforcement.
The landmark case in which Birnbaum was probably most involved personally was O'Connor v. Donaldson starting in Florida in the 1960s. He would later recall his amazement that for 14 years, in every Florida and federal court with jurisdiction and before more than 30 state, federal and Supreme Court judges, he was unable to obtain a fundamental writ of habeas corpus for Mr Donaldson. However, in 1971 Donaldson was released, and in 1975 the United States Supreme Court ruled on the case that a finding of mental illness alone could not justify a State locking a person up against their will and keeping them indefinitely with nothing more than custodial confinement.
Birnbaum also repeatedly challenged the Medicare exclusion of institutionalised mental patients under the age of 65.
... the irrational thinking, feeling and behavior patterns of response by an individual or by a society to the irrational behavior (and too often even the rational behavior) of a mentally ill individual. It is morally reprehensible because it is an unnecessary and disabling burden that is added by our prejudiced society to the very real affliction of severe mental illness … It should be clearly understood that sanists are bigots …
According to Birnbaum's daughter, Rebecca Birnbaum MD, he was influenced in the concept by his close friend the lawyer and civil rights activist Florynce Kennedy, who had graduated from Columbia Law School with him. Kenneth Donaldson used it in his memoir Insanity Inside Out in 1976, as well as acknowledging the 'dedicated fighter' Birnbaum. Later Michael L. Perlin, now professor at New York Law School, read about it in 1980 and would use and publish on it widely.
Treatment and liberty
During his cases Birnbaum sometimes disagreed with fellow advocates who were primarily concerned with civil liberties to the exclusion of welfare rights, such as lawyers from the American Civil Liberties Union. The libertarians would emphasize a stricter due process on involuntary commitment and more rights to refuse forced treatment, sometimes rejecting both entirely, though compromises were reached for joint legal actions. Birnbaum came to be horrified to see deinstitutionalization resulting in many mentally ill being in prison or on the streets rather than being properly helped. He felt that a clearer standard for a therapeutic quality of care was needed, whether in the community or hospital.
In 1966 Birnbaum argued that offenders diagnosed as psychopaths should not be sent to mental hospitals instead of prisons. Noting that under existing psychopath laws coercive regimes that could not have been sanctioned in the name of punishment had been sanctioned in the name of psychiatry, he suggested three reasons for caution. Firstly, a need to maintain a practical boundary between mental health services and correctional services in dealing with psychopathy, partly to avoid stigma for law abiding mental patients, and partly due to the second reason - a lack of reliable knowledge about psychopathy. Despite claims by many psychiatrists, a review by sociologist Michael Hakeem had shown literally opposing psychiatric views on every aspect - whether psychopathy is a distinct clinical entity or not, what causes it, whether it is frequent among criminals, what type of crimes it relates to, and what types of treatments are suitable and with what success. Thirdly, state mental hospitals were already grossly understaffed due to a lack of daily expenditure per patient, and for criminal psychopaths it would be just another form of penal custody (though he thought pilot research with extensive facilities for them could be tried). He suggested that the unrelenting debate among many psychiatrists and lawyers about whether to use a M'Naghten rules, Durham rule or Model Penal Code test for an insanity defense, would make no real difference to the interpretive difficulties and was a distraction from the real problems.
- American Bar Association (May 1960). ABA Journal. American Bar Association. pp. 499–. ISSN 07470088.
- Law Precept Urged: Aid for Mentally Ill; LAW RULE URGED FOR MENTALLY ILL By LAWRENCE O'KANE, New York Times, May 26, 1961
- "The Evolution of Disability Rights Litigation: In the Supreme Court: The Right to Treatment". Mn.gov. Retrieved 2015-02-13.
- Sanism in Theory and Practice May 9/10, 2011. Richard Ingram, Centre for the Study of Gender, Social Inequities and Mental Health. Simon Fraser University, Canada
- Primum Non Nocere: How to Treat the Criminal Psychopath Birnbaum, Morton. American Bar Association Journal, Vol 52, No 1 (January 1966) pp. 69-73
- American Bar Association Journal, May 1960 (Vol 46) Pgs 499-504: The Right To Treatment by Morton Birmbaum
- My Father's Advocacy for a Right to Treatment Rebecca Birnbaum, MD, J Am Acad Psychiatry Law 38:1:115-123 (March 2010)
- Disability Discrimination Law, Evidence and Testimony: A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals John Parry, American Bar Association, 2008. Page 7-13
- Morton Birnbaum, 79, Champion of Mentally Ill, Dies Potts, M., NY Times, October 2005
- The Right to Psychiatric Treatment: A Social-Legal Approach to the Plight of the State Hospital Patient Jonas Robitscher, Vol 18 Vill. L. Rev. Issue 1 (1972).