From Rogers to Rivers: the rights of the mentally ill to refuse medication

Many individuals with mental illness wish to avoid psychotropic drugs, a type of treatment that may relieve their symptoms only at the risk of unpleasant, even permanent, side effects. In marked contrast to the widely-held view that most patients may refuse any treatment and that even patients with mental illness may reject other psychoactive interventions such as electroconvulsive therapy and psychosurgery, the courts and legislatures have been slow to recognize any right to refuse psychotropic drugs. This Article demonstrates that many of the justifications offered for forcing patients to take unwanted medications are inadequate and that unless treatment refusals are reviewed outside mental institutions, patients' rights will rarely receive appropriate deference. The author analyzes the federal and state litigation to determine whether the courts have fashioned meaningful relief for the mentally ill. The Article concludes that two recent United States Supreme Court decisions have made it impossible for the federal courts to provide adequate protection. By contrast, several state courts have responded to the needs and rights of patients with mental illness.     

Adolescents and mental disorder: who consents to treatment?

Although English law recognises that developing adolescents may acquire the capacity to make decisions about medical treatment themselves it does not address the problem of mentally disturbed or disordered adolescents. This article examines the nature of adolescent refusal of treatment and suggests that a line be drawn between three categories of adolescent disturbance--the competent young person who refuses treatment that an adult too may refuse, the rebellious teenager whose refusal is triggered by simple teenage angst, and the mentally ill teenager whose refusal is triggered by mental illness. It suggests that adolescent autonomy needs to be more fully understood and the Mental Health Act more readily used in treating young people.     

What constitutes a psychiatric emergency: clinical and legal dimensions

In true medical emergencies, informed consent is presumed or implied without application of the usual standard. In the litigation over the right to refuse treatment in psychiatry, a limited right for involuntarily committed patients to refuse treatment has been upheld, absent a finding of a psychiatric emergency. Increasingly, clinicians may find that their sole extrajudicial option in instituting treatment over the patient's objection is in invoking a psychiatric emergency. The purpose of this communication is to discuss the clinical and legal issues in defining and invoking a psychiatric emergency in treatment refusal. The substantive and procedural issues in the use of the emergency exception in treatment refusal are discussed with recommendations for their use in clinical practice.     

The impact of the right to refuse treatment in a forensic patient population: six-month review

In December of 1987, the Wisconsin supreme court held that all involuntarily committed mental patients in the state had the right to refuse psychotropic medication unless a court held that they were incompetent to make treatment decisions. The authors studied the effects of this decision in a 165-bed forensic hospital over the first six months after implementation of the decision. They found that 29 percent of patients already on psychotropic medication initially refused further treatment as opposed to 75 percent of newly admitted patients. Of refusers, 32 percent eventually resumed taking medication voluntarily; courts overturned the refusals of all the 51 percent who maintained their refusals, after an average delay of over a month. The length of procedural delays actually increased over the six months of the study as the courts learned of the decision. The authors compare their findings with other reported studies of implementation of right to refuse treatment decisions and discuss differences between the right to refuse treatment for civilly and criminally committed patients.     

Treatment refusal among forensic inpatients

Although the United States Supreme Court has not offered a definite opinion, some states have established the qualified right of involuntarily committed patients to refuse treatment. Controversy continues between psychiatry and law over what procedural protections should be provided to patients when therapists seek to override nonemergency refusal of treatment. The authors review Oregon's administrative approach and its application to the treatment refusal of 33 state hospital forensic patients. Patient characteristics, refusal patterns, and implications of treatment refusal are also described.     

A call for minds: the unknown extent of societal influence on the legal rights of involuntarily and voluntarily committed mental health patients

This article begins and ends with a call for more empirical research to understand the connection between societal views of mental illness and the legal system. The author asserts that changing social perceptions of mental illness certainly affect legal outcomes and commitment levels, but the degree remains unknown. This article explores the above two topics through the framework of the Circuit Court 'split' regarding the Constitutional rights of persons committed to state mental health institutions. A main facet of the 'split' is centered on the Circuits' disagreement about whether or not all mentally ill patients committed to institutions deserve the same Constitutional protections.     

Mental health courts: serving justice and promoting recovery

This article begins and ends with a call for more empirical research to understand the connection between societal views of mental illness and the legal system. The author asserts that changing social perceptions of mental illness certainly affect legal outcomes and commitment levels, but the degree remains unknown. This article explores the above two topics through the framework of the Circuit Court 'split' regarding the Constitutional rights of persons committed to state mental health institutions. A main facet of the 'split' is centered on the Circuits' disagreement about whether or not all mentally ill patients committed to institutions deserve the same Constitutional protections.     

Who should determine what is best for children in state custody who object to psychotropic medication?

This article explores a child's right to refuse medical treatment, in contrast to giving the state or the parents this choice. The article specifically explores a child's right to refuse psychotropic drugs, which are more limiting of personal liberty than physical restraints and can have long-lasting side effects. With a focus on children's competence and the significant side effects of psychotropic drugs, the author concludes that caseworkers do not know the best interests of children in state custody and thus adolescents should be allowed to make their own decisions about psychotropic medications.     

Refusing medical treatment after attempted suicide: rethinking capacity and coercive treatment in light of the Kerrie Wooltorton case

The inquest into the death of Kerrie Wooltorton in Norfolk, England, ignited extensive public debate on the scope of the common law right to refuse medical treatment where a patient is distressed, depressed or actively suicidal. In Australia, a patient's wishes need not be honoured if the patient is not legally competent, if he or she falls within the ambit of the compulsory treatment provisions in the mental health legislation, and possibly also if there is a recognised public interest in preventing suicide which is sufficient to override the patient's choice. This article argues that decisions about whether to give medical treatment despite an apparent refusal should be based solely on a determination of the patient's competence to make their own choice. However, the test for legal competence must take into account the person's agency in making the decision, and decisions which will effectively end the person's life must be shown to be thought through.     

The right to refuse treatment and the movement for mental health reform

The right to refuse treatment is the most controversial of the rights of mental patients, and usually polarizes the movement for mental health reform between providers of care and external activist reformers. A broad alliance supported earlier struggles for recognition of patients' rights, but most professionals oppose recognizing this most extreme right of treatment refusal. Professional opposition to treatment refusal is not based on a wide extent of actual refusal; rather it derives from a defense against challenges to professional and institutional autonomy, an opposition to legal interference, and a belief that the community as well as the patient must be protected. These three reasons for opposition are examined by reviewing studies of attitudes toward patients' rights, knowledge about patients' rights, and implementation of patients' rights. Finally, the implications of these studies for future directions in the movement for patients' rights are examined.     

Victimization of mentally ill patients living in the community: Is it a life‐style issue?

Purpose. Although criminal victimization of mentally ill patients has been researched, what little work there is focuses on in‐patient samples. This study aimed to compare crimes against mentally ill patients living in the community with crimes against students who have a high life‐style risk of victimization. Methods. The samples were selected via community‐based mental health services and a university population. A group of 40 mentally ill patients and 80 students reported experiences of victimization in the previous 12 months and attitudes towards the police. Results. Female mentally ill patients reported the highest victimization, but both male and female patients reported more victimization than did students. Mentally ill patients also held more negative opinions of the police. Conclusions. The results show that mentally ill patients experience more victimization when compared with the victimization experiences of a similar life‐style risk group. Discussion focuses on the implications for mentally ill patients living in the community, the support networks available to them, and relations between the police and mentally ill patients.     

The character of danger in psychiatric practice: are the mentally ill dangerous?

This paper explores the question of dangerousness and the mentally ill. Research for this paper was stimulated by the death by homicide of two psychiatrists in Oregon in 1985. The paper reviews three distinct areas in the psychiatric literature: the arrests of mental patients, assaults against psychiatrists and other mental health professionals, and assaultive behaviors exhibited by patients in hospitals and other psychiatric settings. The author concludes that the risks are real but are dependent, for the most part, on setting and the acuteness of illness. Realism in regard to risk is critical for the mentally ill, their families, professional caregivers, and society in general.     

Operation of guardianship laws in the emergency ward

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients' consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment. Consent and refusal of treatment provisions should be based on the notion of reasonableness, including recognition that the mental and emotional states experienced by physically ill people may, in the short-term, adversely affect their decision-making capacity. Unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients.     

Autonomy, guardianship and mental disorder: one problem, two solutions

The law in England and Wales governing both the provision of medical care in the case of adults with incapacity and the provision of care and treatment for mental disorder presents serious problems for the principle of patient autonomy. The adult with incapacity has no competence either to consent to or refuse medical treatment but the law provides no statutory structure for substitute decision making on that adult's behalf. On the other hand the law does allow a person with mental disorder to be treated for that disorder despite his or her competent refusal. The nature of these inconsistencies is considered and the implications which flow from the singling out of mental disorder are examined with reference to experience in two Australian jurisdictions. The current proposals for reform of the Mental Health Act are then considered in the light of the conclusions drawn.     

A comparison of civil patients and incompetent defendants: pre and post deinstitutionalization

There has been a great deal of speculation that deinstitutionalization has resulted in the criminalization of the mentally ill. Using two samples of defendants found incompetent to stand trial (IST) and two samples of civil patients randomly selected from five states, pre and post deinstitutionalization, this research compares changes in their mental health and arrest histories. After deinstitutionalization, fewer and less dramatic differences in the arrest and mental health histories were evident between ISTs and civil patients. Both patient samples displayed significant increases in prior hospitalization and arrest histories. Among the civil patients there was a significant increase in the frequency and seriousness of criminal activity. There was no evidence that IST commitments are being expanded to hospitalize the nondangerous mentally ill no longer subject to civil commitment.     

The right to refuse treatment: An application of the economic principles of decision-making under uncertainty

When courts do not defer to professional judgment, alternative ways must be used to make treatment decisions for persons who are deemed incompetent. Rather than impose the preferences of society on the mentally ill individual, courts have favored alternative procedures. The two most common approaches are substituted judgment and best interests. In using both the substituted judgment standard and the best interest standard the guardian of a patient who is judged incompetent to make a treatment decision tries to make the decision the patient would have made, had he been competent. The guardian must consider the individual's attitude toward risk in making this assessment. Substituted judgment can be used when clear and convincing evidence of the patient's preferences exists. The evidence would come from a study of the patient's expressed attitudes towards medical treatment and behavior before he or she became incompetent. This approach is effective only if the patient has revealed his or her preferences toward relevant medical treatment in the past. The best interest standard is used when no clear and convincing evidence of the patient's treatment preferences exists. The treatment decisions of competent patients whose characteristics are similar to the incompetent patient's, and who have faced a similar situation, can be used as a proxy for the decision the incompetent patient would have made. Using the choice function of similar people may make it possible to develop a reasonably objective basis for determining what course of action is in the patient's best interest.     

Ulysses Contracts in Medicine

Ulysses contracts are a method by which one person binds himself by agreeing to be bound by others. In medicine such contracts have primarily been discussed as ways of treating people with episodic mental illnesses, where the features of the illness are such that they now judge that they will refuse treatment at the time it is needed. Enforcing Ulysses contracts in these circumstances would require medical professionals to override the express refusal of the patient at the time treatment is required, something that is generally problematic both ethically and legally. In this paper I will argue that despite appearances Ulysses contracts can make it the case that treating a patient in such circumstances is an instance of treating him with his consent, although safeguards are needed to ensure that this is the case. Given the potential benefits to patients I further argue that modified Ulysses contracts should be made legally enforceable.     

精神病人刑事责任能力相关问题研究

受“有病无罪”观念的错误影响,长期以来法学领域很少开展对精神病人“犯罪”的研究,致使形成“精神病学鉴定专家裁判精神病人是否犯罪”的态势,忽视了对社会公共安全的保护。笔者简明扼要地介绍了美国司法精神病学近几十年的变迁,以此为参照,发表了对精神病人犯罪研究的一些看法。     

Forensic mental health law reform in Japan: from criminal warehousing to broad-spectrum specialist services?

Since the 1980s Japan has undergone a number of mental health law reforms culminating in the 2005 forensic law. This added to its enactments on involuntary commitment, long-term aged care and substitute decision making, bringing Japan into focus as an industrialized state now possessed of a full package of civil and forensic provisions. This article seeks to demonstrate that the new forensic law cannot achieve its own stated goals without seeking to put into place financial and administrative supports aimed to integrate the myriad of patient populations that will be inevitably affected by the new forensic system. In order to avoid the widespread syndrome that has already been experienced internationally of warehousing mentally ill offenders in jails, it is critical that the Japanese government develop effective and culturally sensitive techniques for dealing with low risk populations through a diversionary process. Furthermore, although the legislation addresses serious crimes, it is imperative that policies be put into place to avoid directing young offenders, violent patients from the general hospital system, the developmentally handicapped, already convicted persons found in hospital settings and problematic cases in the correctional system, to the new forensic units established by the legislation. It is only though contemplating unintended outcomes of the legislation that the Japanese government will be able to avoid the ongoing stigmatization and prolonged institutionalization of mentally ill populations. Despite apparent cultural differences internationally vetted human rights requirements must be properly protected, not only in the forensic context, but throughout the mental health system at large. The coordination of services and the development of specialty training are necessary conditions for the realization of improved and humane conditions for mentally ill persons in Japan.