Indiana Law Review


Taking Harms Seriously: Involuntary Mental Patients and
the Right to Refuse Treatment

Samuel Jan Brakel, J.D.*

John M. Davis, M.D.**

Introduction

One of the more controversial, if not paradoxical, developments in
the continually expanding field known as **mental health law"' has been
the establishment in the mid-to-late 1960's of a patient's right to treatment,^

* A.B., 1%5, Davidson College; J.D., 1968, University of Chicago. Member of the
teaching faculty at DePaul University College of Law, Director of Research at the College's

Health Law Institute, and on the staff of the Isaac Ray Center in Chicago.
** Oilman Professor of Psychiatry at the University of Illinois, Chicago and Director

of Research at the Illinois State Psychiatric Institute. A.B., 1956, Princeton University; M.D.,

1960, Yale University. Our thanks to Matthew Oloss and Lynn Hopkins for assistance with

the research.

1. In no field of law is the divisive, dualistic character of America's legal system

more apparent than in the field known as mental disability law. There, legislatures,

courts, and scholarly tradition have combined to produce an unwieldy amalgam

of general principles and particularized provisions so riddled with internal conflict

as to justify a diagnosis of florid legal schizophrenia. In this field of law, the

state's parens patriae power competes with its police power; the patient's right to

treatment coexists (all so uneasily) with the right to refuse it; the therapist's obligation

to preserve client confidentiality militates against the duty to warn others; the

psychiatrist's wish to treat is undercut by legal compulsion to deinstitutionalize or

to refrain from institutionalization altogether; while the pressure on the provider/

administrator toward early release increases the risk of legal liability; and the doctrine

to deliver least restrictive treatment threatens the disabled with the reality of being

subjected to a regimen that retains most of the coercion and restraints of the

institutional setting, but without the treatment, or worse, of being left with the

unfettered freedom to deteriorate and die in the streets.

Brakel, Legal Schizophrenia and the Mental Health Lawyer: Recent Trends in Civil Commitment

Litigation, 6 Behav. Sci. & L. 3, 4 (1988).
2. Rouse V. Cameron, 373 F.2d 451 (D.C. Cir. 1966), is generally recognized as the

first judicial articulation of the right to treatment. The concept was explicitly put forth as

early as 1960 in an influential article by Birnbaum. Birnbaum, The Right to Treatment, 46

A.B.A. J. 499 (1960). The Rouse court based the availability of this right on closely related

language in the District of Columbia's mental health code. However, subsequent court decisions

in other jurisdictions had no trouble finding such a right in the absence of explicit or suggestive

statutory language. The right was seen to be inherent in the "logic" of civil commitment

and according to some courts, was even compelled by the state and federal constitutions.

See, e.g., Welsch v. Likins, 550 F.2d 1122 (8th Cir. 1977); Eckerhart v. Hensley, 475 F.

Supp. 908 (W.D. Mo. 1979); Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971). The
United States Supreme Court has never found a patient's treatment right to be constitutionally

compelled. See Youngberg v. Romeo, 457 U.S. 307 (1982); O'Connor v. Donaldson, 422

U.S. 563 (1975).



430 INDIANA LAW REVIEW [Vol. 25:429

followed a short decade later by the legal consolidation of its counter

point — the right to refuse treatment.^ Although legal rights advocates'*
may contend that there is no conflict between these two rights, the reality
is that they often do conflict. The clash of interests is most pronounced

in mental hospitals housing involuntarily committed patients,^ where the

very concept of right to refuse treatment seems anomalous and its un-

checked assertion would wholly vitiate the purpose of the enterprise. In

this setting, many treating psychiatrists find themselves cornered into an
ethical and legal no-win position as they must watch patients, committed

to their charges by the state because the patients are incapable of rec-

ognizing their need for treatment, fall prisoner^ to this "liberty interest"

they have chosen to exercise.'

3. The leading cases here are Rennie v. Klein, 476 F. Supp. 1294 (D.N.J. 1979),

modified, 653 F.2d 836 (3rd Cir. 1981), vacated, 458 U.S. 1119 (1982), and Rogers v. Okin,

478 F. Supp. 1342 (D. Mass. 1979), aff'd in part, rev'd in part, 634 F.2d 650 (1st Cir.

1980), vacated sub nom. Mills v, Rogers, 457 U.S. 291 (1982). The appeals and rehearings

of these cases chipped away at the breadth and constitutional stature of this right, as compared

to its initial articulations, though the general proposition that the right to refuse is available

to mental patients remained intact. In some writings, the date of "discovery" of the right-

to-refuse concept is pushed back to 1972 via a reference to Canterbury v, Spence, 464 F.2d

772 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972). However, this case is about informed

consent to treatment, a doctrine of far longer standing that at best implies a right to refuse,

and it does not involve a mental patient.

4. These advocates are often called, or label themselves as, patients' advocates. In

our view, this is a misnomer because the uncompromising assertion (or creation) of legal

rights frequently clashes with the patient's personal and medical interests.

5. The conflict may, of course, also arise in the treatment of voluntary patients,

except that hospital personnel in that situation can mitigate the dilemma by discharging or

threatening to discharge the refuser. By the same token, the assertion of the right to refuse

can also undercut medical objectives in the outpatient clinic or the psychiatrist's office. Legally,

the institutional psychiatrist's dilemma is that he is potentially liable if he treats and also if

he does not. See also infra notes 36-37.

6. The term "prisoner" is no mere figure of speech here. A patient who refuses
treatment will often extend the length of his confinement, thereby acting counter to his

"liberty interest." Without treatment, he can only receive custodial care {i.e., be "warehoused"),

thus undercutting both his own and the institution's medical interests, not to mention society's
interest in the efficient treatment of medical patients, particularly "public" patients. For the

initial articulation of the view that to hospitalize a patient involuntarily, but not to permit

treatment under the right to refuse, subjects the patient to preventive detention, see Stone,

The Right to Refuse Treatment: Why Psychiatrists Should and Can Make It Work, 38
Archives Gen. Psychiatry 358 0981).

7. The "liberty interest" analysis is classic to right-to-refuse cases. It derives from

the due process clause of the fourteenth amendment and was recently endorsed by the Supreme

Court in Washington v. Harper, 494 U.S. 210 (1990), a case in which the institutional inmate's

refusal was held to be properly overridden. Legal rights advocates may see this as an irony.
In our view, the greater irony is how often the assertion of the liberty interest, in effect,
decreases freedom.



1991] RIGHT TO REFUSE TREATMENT 431

In and of itself, the existence of a right to refuse unwanted medical

treatment is not controversial and is clearly salutary. It is a right we
presume to be accorded to all citizens—an indisputable element of the
political and moral consensus in a society committed, such as ours, to

democratic traditions limiting the power of the state and other external

authorities. It is part of the premium we put on individual freedom, the
liberty we possess to define and decide what is in our interests, our right
to self-determination, personal autonomy, or even (and awkwardly) "per-

sonhood." These core values find expression in our contemporary legal

culture under the rubric of one's "right to privacy"— a general, stretchable
concept whose more particularized, and in our context, most relevant

articulations include the **right to bodily integrity" or '^freedom from

bodily intrusions."^

Although the principle of personal inviolability thus commands us to
respect an individual's medical treatment decisions in all **ordinary" sit-

uations,^ exceptions must sometimes be made in unusual circumstances.
For example, when the treatment offered or requested is experimental or
presents a high risk, appropriate limits are placed on the individual's

affirmative treatment choices. The same is true when the refusal to be

8. Liberty, freedom, privacy, and autonomy are interwoven concepts that, judging

from their articulation in court cases, seem more to feed on one another than to submit to

any logical progression from primary to secondary or general to specific. Is it the right to

privacy that creates the liberty interest or the other way around? Does the concept of personal

autonomy foster various freedoms or do the acknowledged freedoms generate autonomy? The

constitutional invocations for these concepts are equally confounding and range from specific

clauses in the fourteenth amendment to fuzzier constitutional "penumbrae" from which the

rights {e.g., "privacy") are seen to emanate. See Griswold v. Connecticut, 381 U.S. 479, 483

(1%5). The specific right to bodily integrity or freedom from bodily intrusions derives from

traditional tort law.

9. A favorite judicial quote here is from Justice Cardozo, who in Schloendorff v.
Society of New York Hospitals, 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914) wrote: "Every
human being of adult years and sound mind has a right to determine what shall be done
with his own body." The "sound mind" qualification is critical to our context. The qualification
of adulthood is also relevant. Children are not competent under the law to make contractual
or other decisions that have legal ramifications. In recent years, the law has vacillated between

a hands-off and an interventionist approach as regards the mental treatment and commitment

of minors, with the most recent trend favoring the former mode. See Parham v. J.R., AAl

U.S. 584 (1979). Legal interference is rare for the treatment of children's physical illnesses.

Parents, in consultation with their physicians, routinely make these decisions on behalf of
their children, unencumbered by legal process or even the thought of it. It is in cases when

parents, out of religious conviction, have attempted to withhold treatment that the law has

recognized a need to intervene. See, e.^.. Walker v. Superior Ct., 194 Cal. App. 3d, 222

Cal. Rptr. 87 (1986), superseded, 47 Cal. 3d 112, 763 P.2d 852, 253 Cal. Rptr. 1, cert,

denied, 491 U.S. 905 (1989) (rejecting a Christian Scientist's defense that the "spiritual

treatment" given to her four-year-old daughter who died of acute meningitis exonerated her
from charges of involuntary manslaughter and child endangerment).



432 INDIANA LAW REVIEW [Vol. 25:429

treated is life-endangering, amounting to a passive suicide decision. The

possibility of serious, even fatal, harm to the patient is the unifying thread.

The right to make one's own health choices is not absolute. One may
(still) kill oneself slowly by smoking cigarettes or, as in some of our more

freedom-loving states, live with the increased risk of instantaneous injury

or death by not wearing a seatbelt while driving a car or protective head

gear while riding a motorcycle. Yet, neither the law nor social morality

presently condones the notion that people are free to kill themselves

actively or to mutilate themselves severely. '° Once a person becomes a

client of the health care system, the idea that treatment choices may be
circumscribed is reinforced by the doctor's professional ethic that he shall

not harm his patient.
The * 'extraordinary" situation most relevant to our topic tends to be

less extreme than the death-defying scenarios invoked above and involves

balancing different values.'^ It is the situation when the individual needs
standard medical intervention, but is, for one reason or another, incapable

of asking for it (or incapable of resisting it, in instances when the treatment
provider is willing or obligated to intervene in the absence of the indi-

vidual's request or consent). There is no treatment decision issuing from

the individual on which the treatment provider can act. A person who
is comatose or who is otherwise overwhelmed by physical trauma cannot
request or consent to medical treatment. In the mental health setting,
* Uncapacity" usually means "incompetency." There is no treatment de-

cision because the individual is mentally incapable of making it.

Much has been written about the meaning of "mental incompetency":*^
(1) whether its essence is clinical or legal or some mix of the two; (2)

10. The so-called right-to-die cases, which are becoming increasingly prominent in law

and in the public consciousness, turn on the assertion that the life of the individual who
wishes to end it is (in the individual's view or that of a substitute decisionmaker) no longer

worth living—an assertion that is debatable or litigable only in dire circumstances. See, e.g.,
Cruzan v. Director of Mo. Dep't of Health, 110 S. Q. 2841 (1990); In re Quinlan, 70 N.J.
10, 355 A.2d 647, cert, denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976).

11. Some commentators and interested parties on either side of the issue nevertheless
try to structure the debate in right-to-live/right-to-die terms. This misses the point and constitutes

a gross exaggeration of the mental treatment issue. Even the more invasive interventions,

such as psychosurgery (today virtually never performed) or ECT, are not of that order. For

antipsychotic medication treatments, despite side effects that in isolated cases of misadmin-

istration have caused death, framing the issue as such is even less pertinent. See Kaimowitz

V. Department of Mental Health, No. 73-19434-AW, slip op. (Cir. Ct. Wayne County Mich.,
July 10, 1973).

12. For an extensive treatment of the civil incompetency concept, see S. Brakel, J.

Parry, & B. Weiner, The Mentally Disabled and the Law 369-433 (3d ed. 1985).
Contemporary articulations of the incompetency concept threaten the capacity of the states

to provide treatment for mentally ill persons. Given a rigid interpretation of the theory that



1991] RIGHT TO REFUSE TREATMENT 433

whether it stands for a general incapacity or one specific to the decisional

situation at hand; (3) whether it is, or should be, presumed for all who
certifiably suffer from a mental illness, for those institutionalized in mental

hospitals, for those involuntarily hospitalized, or for none of the above;

(4) if and when it is advisable to have a delegate for an incompetent
person make substitute decisions for the latter; and (5) whether * incom-
petency'* is merely a pragmatic concept for those who wish to exercise
power over the alleged incompetent.

This Article does not attempt to resolve the preceding questions about

the concept of competency. What is important for the purpose of our
present analysis is that an individual's mental incompetency does not,

except in isolated instances, wholly preclude him from articulating a

treatment decision. In other words, in contrast to one who is silenced by
physical incapacity, a mentally incompetent person can voice objection to

treatment.'^ Based on this generalized presumption of retained capacity

to speak, we can postulate the following minimal principle on which
general agreement should be possible: All mentally-ill persons, irrespective

of adjudicated or presumed incompetency, retain an initial right to ar-

ticulate their objection to or refusal of unwanted treatment which should

be heard. Beyond this principle, interests begin to diverge and opinions

may differ. The crux of the controversy regarding treatment refusals by
mentally ill persons is whether, when, how, and by whom an articulated
refusal can be overridden.

Having identified what we believe is the true issue, we can supply
the answer. We state it in the form of three basic contentions whose
direct application is intended to be limited to situations when patients are
in mental hospitals via involuntary commitment and when the proposed
treatment is antipsychotic medication. We contend that in this situation:
(1) the decision to override a treatment refusal is best made by medical
personnel rather than judges or other legal functionaries;"* (2) the override

"incompetent" persons cannot give valid consent to voluntary hospitalization and treatment,

the viability of the states' entire voluntary admission schemes is undermined. Persons who
may wish to be hospitalized or who willingly sign voluntary admission and treatment papers,
will instead have to be involuntarily committed—hardly the preferred approach. Worse, some
of these persons, though seriously ill, may not meet the restrictive criteria for involuntary
commitment and thus, could be left without any way to obtain treatment. For the proposition

that hospital officials may even be legally liable when they extend "voluntary" treatment to
such persons, see Zinermon v. Burch, 494 U.S. 113 (1990).

13. The unconscious patient will not object to treatment, but the delirious adult and

many children, particularly small children, may. They may fight, scream, and voice inarticulately
their "objection" to treatment. Indeed, not infrequently, patients need to be restrained for

treatment to proceed. This has never been deemed a problem requiring legal intervention,

nor should it be.

14. The mandate for judicial review of treatment refusals produces an especially



434 INDIANA LAW REVIEW [Vol. 25:429

decision can be made in all circumstances, not, as presently conceded by
the law and most legal advocates, only in emergencies; and (3) it can

and should be made with minimal loss of time (even no loss of time if
the basic treatment decision is made simultaneous with the commitment
decision, as we propose the law should provide).*^ The objectives of and
rationales for each of these contentions are interrelated. They defer to

professional competency and perhaps more importantly, the need for timely

treatment.'^

Legal rights advocates are prone to dispute the above contentions on

constitutional grounds. Rather than debate or litigate the straightforward

question of what measure of patient autonomy is desirable and practicable

in the mental hospital setting, the advocates' strategy has been to outflank

the perceived "opposition" by redefining the issue in terms of **due

process," *'equal protection," or even ^'freedom of expression," often

enveloping the analysis in the language of discriminatory treatment.*''

This Article does not intend to join the debate on this level for the

following reasons. We do not believe that the right to receive or to refuse
treatment conundrum is likely to be solved by constitutional or other

doctrinal analysis. Nor are treatment issues usefully conceptualized as
problems in invidious discrimination. The heart of the problem, we believe,
lies elsewhere. It is primarily factual. Its essence is in the law's apparent,

and in some cases apparently willful, misunderstanding of the medical

facts. As such, we believe its resolution will come principally through
factual rectification.

I. The Persistence of Medical Misinformation
AND Myths in the Law

Although a recent Supreme Court decision concerning the involuntary

medication of a state prison inmate endorses a medical/administrative pro-

anomalous result in cases in which the involuntary patient refuses medication upon admission.

In that instance, a second trial must then be held which will be almost wholly duplicative

of the commitment proceeding just completed.

15. This proposal will be elaborated in the final pages of this Article. For now, we

want to point out that making the treatment decision simultaneous with commitment will

not threaten the patient's opportunity to be heard, to object, or to refuse. To the contrary,
the matter would be addressed explicitly and separately. In addition, the treatment decision

would be subject to periodic administrative review, including at the patient's initiative.

16. These principles may have substantial applicability beyond the present context. See
supra note 5. In addition, medical judgment deserves substantial deference with respect to

treatment methods other than medication. Youngberg v. Romeo, 457 U.S. 307 (1982).

17. The first amendment freedom of expression link to the matter of forced medication

may appear the most remote of the various constitutional strategies. For an extensive argument

that it is the most appropriate link (a point, it should go without saying, we do not share),

see Winnick, The Right to Refuse Mental Health Treatment: A First Amendment Perspective,
44 U. Miami L. Rev. 1 (1989).



1991] RIGHT TO REFUSE TREATMENT 435

cedure for overriding decisions to refuse treatment,'^ it can hardly be

concluded that the medical side has won the battle of what process best
serves the treatment interests of mental patients. The Supreme Court has

long been a voice in the wilderness on mental health matters, diverging

sharply from other courts on both the state and lower federal levels.'^ State

court holdings in particular continue to adhere to the orthodoxies of the

legal decisionmaking model,^ under which the provider's determination to

override the patient's refusal will be subjected to judicial reassessment at

any of a variety of junctures while little heed is paid to the individual and

institutional harms that may result from the consequent delay.^' At the

18. Washington v. Harper, 494 U.S. 210 (1990). In this case, the Court approved

the State of Washington's Special Offender Center policy that an inmate may be involuntarily
medicated upon the order of a psychiatrist if he is found to suffer from a mental disorder

and to be gravely disabled or dangerous. Rejecting the legal decision model urged by the

inmate and found to be constitutionally required by the state supreme court, the Court held

the Center's administrative review procedures to be constitutionally sufficient. The essence of

these procedures was a timely hearing and subsequent periodic review by an in-house special

committee composed of a psychiatrist, a psychologist, and a corrections official. The decision's

import for the mental health care setting is not altogether clear. Prisoners, to the extent they

ret£iin "autonomy" rights, which they do up to a point, retain somewhat different ones than

do involuntary mental patients. In terms of the state's interest, forced treatment on the ground

of security considerations may be more compelling for prisoners. On the other hand, involuntary
treatment of mental patients is logically supported by the rationale of commitment and the

objectives of mental institutionalization. If the medical decision model is appropriate for

corrections, can it be wrong for mental health?

19. See, e.g., Youngberg v. Romeo, 457 U.S. 307 (1982); Parham v. J.R., 442 U.S.

584 (1979). Parham and Romeo had a great deal to do with the outcome in Harper. The
fact that Harper itself was a reversal of a decision by Washington's highest court is also

telling. Finally, the three dissenters in Harper, Justices Stevens, Brennan, and Marshall, would

have sustained the Washington Supreme Court's requirement for a judicial hearing. Their

opinion reflects an overestimation of the dangers and discomforts of drug treatment mixed

with legitimate points about the lack of independence of the institution's review mechanism

and the unhealthy "muddling" of therapeutic and security rationales in the forced medication

of inmate Hzuper.

20. The federal district and circuit courts are by design more prone to follow the

lead of the United States Supreme Court than are the state courts, especially on minimum

standards which the states are free to exceed. Evidence of this is detectable in the appellate

courts' response to the initial decisions in Rennie v, Klein, 653 F.2d 836 (3rd Cir. 1981),

vacated, 458 U.S. 1119 (1982) and Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980), vacated

sub nom. Mills v. Rogers, 457 U.S. 291 (1982). However, the most significant implementation

of the Supreme Court's stance was presented in United States v. Charters, 863 F.2d 302 (4th

Cir. 1988), cert, denied, 110 S. Ct. 1317 (1990), which upheld the medical-administrative

procedures for ordering the forced medication of an involuntarily committed psychiatric patient

who was unfit to stand trial.
21. Describing and documenting these harms is a major aspect of the remainder of

this Article. For a listing of state and federal court decisions on the right to refuse treatment

and a discussion of the general tenor of the law, see Brooks, The Right to Refuse Antipsychotic

Medications: Law and Policy, 39 Rutgers L. Rev. 339 (1987). For another discussion by



436 INDIANA LAW REVIEW [Vol. 25:429

same time, the legal literature^ has continually shown a one-sided preoc-

cupation with the "invasive" nature of mental treatment and medication

and its potentially deleterious side effects,^ while down-playing, if not

outright ignoring, its documented benefits.^

When one combines the traditional inertia of law with the fact that
the recent Supreme Court holding in Washington v. Harper^^ does no

more than sustain a minimum constitutional standard for making the
override decision in the prison setting, it is apparent that no real conciliation

has been achieved between medical and legal rights and that none can

be assumed to be forthcoming. The prospect of entrenchment or re-

trenchment is real. Free to impose far more onerous standards for over-

riding patients' refusals, state courts and legislatures, influenced as in the

past by a steady stream of medical misinformation and myths, can be

expected to follow their institutional incUnation to continue to "belegal"

the process.^^

The purpose of this Article is to show that a retreat from the Supreme

Court's recently approved standard is neither necessary nor desirable. By
relieving the legal community of the popular cant that institutional psy-

chiatrists are gleefully engaged in a "therapeutic orgy"^^ that is over-

the same author, see Brooks, The Constitutional Right to Refuse Antipsychotic Medications,

8 Bull. Am. Acad. Psychiatry & L. 179 (1980).
22. The value of the Brooks contributions lies in part in their relatively even-handed

handling of the issue as compared to the treatment accorded to the mental treatment/refusal

topic in most legal journals. We suppose that legal rights activist lawyers will find equal bias,
in the opposite direction, in most medical publications. See supra note 21.

23. For the proposition that the side effects are really just "effects" and that the

label "side" is used to diminish their significance or seriousness, see Winnick, supra, note

17. To assess the probity of this point, the reader might consider that the same thing can

be said of more familiar drugs.

24. As with harms, a major objective of this Article is to document the benefits.

25. 494 U.S. 210 (1990).

26. When the Supreme Court took away the federal constitutional rationale for requiring
full legal due process in treatment decisionmaking, a number of state courts responded by

grounding the judicial process mandate for overriding treatment refusals on state statutory

and common law or on the state constitution. See Rogers v. Commissioner of the Dep't of
Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983); Rivers v. Katz, 67 N.Y.2d 485, 495

N.E.2d 337, 504 N.Y.S.2d 74 (1986); State ex rel. Jones v. Gerhardstein, 135 Wis. 2d 161,

400 N.W.2d 1 (1986), affd, 141 Wis. 2d 710, 416 N.W.2d 883 (1987). State judges and

legislators will presumably feel equally free to circumvent the implications of Washington v.

Harper. For general comments on lawmakers' inclination to solve social problems with law

and leg£il process, see R. Slovenko, Psychiatry and Law, 221 (1973); Brakel, Response to

James Ellis, 23 L. & See. Rev. 961 (1989); Brakel, Pro Se, 14 Student Law. 38 (1986).
27. See Plotkin, Limiting the Therapeutic Orgy: Mental Patients' Right to Refuse

Treatment, 72 Nw. U.L. Rev, 461 (1978). This is one of the most frequently cited writings
in right-to-refuse cases and other legal commentary on the subject. The article steirts off by

speaking of mentally ill persons as being "arrested and confined for 'treatment."' Id. It then



1991] RIGHT TO REFUSE TREATMENT 437

whelmingly harmful in effect, and showing that the benefits of medication

treatment are immense, indisputable, and capable of being delivered in

a way that is largely risk-free for most patients, we hope to persuade
decisionmakers that the patients' treatment interests can be served without

the maintenance of a cumbersome and counterproductive legal-safeguard

machinery. Faith in the law's capacity to render appropriate treatment

decisions is misplaced. The law can only curb medical abuse. Too often
the legal mind equates this with the assumption that there is abuse.

Although never justified, this see-only-evil, hear-only-evil attitude is par-

ticularly inappropriate and destructive in today's mental health services

environment. More than any previous time in psychiatry's history (and
with due credit to the legal rights side for its role in fostering a new

vigilance),2* we believe that the contemporary law can safely afford to
give a measured deference to the good faith, professional ethics, and

professional competence of treating doctors.

II. Separating Myth from Reality:
The Empirical-Medical Perspective

Our purpose is to focus on the empirical aspect of the right-to-refuse
question and to present medically accurate information on the benefits

and risks of drug treatment and the harms resulting from no treatment.

This information shapes the consensus medical perspective on the right

to refuse treatment. It should also be the basis for any and all legal

perspectives, but unfortunately, it is not.

We have reviewed the legal literature on the use of psychotropic drugs
in detail, and we find that almost all of it is not merely biased, but also
factually incorrect. Of the more than thirty law journal articles we ex-
amined, at least twenty would by any objective criterion be classified as

vitriolically "antidrug. "^^ The remainder are somewhat more tempered.

goes on to assert that "while incarcerated^ they are subjected to a veritable orgy of 'therapeutic

techniques' imposed upon them without their consent and often ageiinst their will by state-

employed physicians." Id. (emphasis added). For a typical court case echoing this unmodulated

antipsychiatric perspective, see Davis v. Hubbard, 506 F. Supp. 915 (N.D. Ohio 1980).

28. Notwithstanding our view that law at the so-called cutting edge of mental health

is too often based on worst case scenarios, refuses to acknowledge that the general scenario

is not nearly so bad or is much improved, and as a result, goes too far in legally inhibiting
the mental health care provider, the aggressive advocacy of legal rights must nevertheless be

credited with directly or indirectly fostering needed correctives in perspective, policy, and

procedures. For a brief discussion of this dialectic quality of legeil reform in the area of

corrections, see Brakel, Prison Reform Litigation: Has the Revolution Gone Too Far?, 70
Judicature 5 (1986).

29. Few put the bias as unabashedly in the title as Plotkin, but the content is no

less slanted. See supra note 27. In addition, there is an equally voluminous law journal



438 INDIANA LAW REVIEW [Vol. 25:429

but even these, with a few exceptions, are fundamentally slanted against

the use of drugs in psychiatry. Factual inaccuracies abound and, as the

writings rely almost exclusively on one another, they merely repeat spurious

myths, pihng misinformation on top of misinformation.^° In addition,

there is almost no consideration of the
*

'helping'* rationale behind psy-

chiatric treatment or an acknowledgment of the obvious legal conundrum

of how the state can justifiably hospitalize a patient against his will without
providing effective treatment.

The judicial opinions are only marginally better balanced.^' Too often
they share the internal-referencing flaws of the reviews, with judges relying

literature that is antipsychiatric in general, as opposed to antidrug. In Dautremont v. Broadlawn

Hospital, 827 F.2d 291 (8th Cir. 1987), the phrase "mental restraint" is used in connection

with drug treatment. In most articles, drugs are said to be "intrusive." The word intrusive

suggests unwarranted entry into someone's mental life, presumably for punitive purposes or

subjectively unpleasant effect. This is a pejorative term much like referring to surgery as

butchery. The word "drugged," which is used frequently, has the connotation of heavy

sedation.

30. Initially, several medically inaccurate law review articles were published based on

snippets of data found in studies that came to diametrically opposite conclusions than the

ones proffered by the legal writers. See, e.g., DuBose, Of the Parens Patriae Power and
Drug Treatment Schizophrenia: Do the Benefits to the Patient Justify Involuntary Com-
mitment?, 60 Minn. L. Rev. 1149 (1976); Plotkin, supra note 27; Plotkin & Gill, Invisible
Manacles: Drugging Mentally Retarded People, 31 Stan. L. Rev. 637 (1979). These misre-

ferences were then quoted by authors of subsequent law review articles or incorporated into

court discussions. This resulted in the consideration of a succession of factually erroneous

materials by both legal academics and legal practitioners. Virtually no one read and correctly

summarized the original medical literature. The problem is that most legal libraries do not

C£irry medical books and journals; therefore, the medical information about the risks and

benefits of drugs and practical information about the context and consequence of their use

is unavailable to most lawyers. There is also a "communications gap" compounding the

availability problem. It is not so much (or not only) that the medical information is written

in jargon, but that the implications of the information may not be readily understood by
nonmedical readers. References to "mean improvement scores" and the like are not well-

tailored to express the full human significance of the changes to the patients. The suggestion,

implicit above, that the psychiatric profession shares some of the blame for the lack of

information, that its complaint is in part a self-inflicted problem, is further strengthened by

the fact that psychopharmacology was and remains a developing science in which many

psychiatrists and psychologists are not well versed. The legal system may at times have had

inadequate, perhaps even incorrect, input from the mental health community. Occasional

commissions of both lawyers and psychiatrists have been appointed to review the psycho-

pharmacological literature. Yet, with the persistence of elements in the psychiatric community

unschooled in this specialty, or apathetic or even unsympathetic to its potential and achieve-

ments, it is quite possible that these reviews have served only to contribute to the information

gap. See infra note 45.

31. Judges, particularly trial judges, are bound in theory by the facts presented in

the case before them and not by the literature. However, judicial "facts" are not facts in

the ordinary sense. They may include, in addition to the parties' allegations about specific
events, practices, or procedures, a wide range of conclusions based on direct testimony by



1991] RIGHT TO REFUSE TREATMENT 439

not on original medical data, but on the self-perpetuating **interpretations"

of the data in the legal literature. ^^ Unique to the common-law system

experts, the "facts found" in other legal cases, and personal or so-called common sense
perspectives and assumptions of which judges may simply take "judicial notice." Thus, it is
possible for a case to state the following: "Such widespread use of psychotropic drugs . . .

is not, however, necessarily supported by any sound medical course of treatment. Put simply,

the testimony at trial established that the prevalent use of psychotropic drugs is counterth-

erapeutic and can be justified only for reasons other than treatment—namely, for the con-
venience of the staff and for punishment:' Davis v. Hubbard, 506 F. Supp. 915, 926 (1980)
(emphasis added). This case also states that "the inmates' principal interest affected in the

present case arises not from the state's attempt to punish thoughts but its attempt to use

treatment as a means of controlling thought, either by inhibiting an inmate's ability to think

or by coercing acceptance of particular thoughts and beliefs:' Id. at 933 (emphasis added).

Mixed in with these "findings" are references to the most vociferous antipsychiatric legal

literature, including Plotkin, and a cite to Rennie v. Klein, 476 F. Supp. 1294, 1299 (D.N.J.

1979) for the proposition that "drugs may cause cancer." Davis^ 506 F. Supp. at 928. The
Fourth Circuit's decision in United States v. Charters, 863 F.2d 302 (4th Cir. 1988), cert,

denied, 110 S. Ct. 1317 (1990), was preceded by a decision of a panel of the same court

which endorsed the traditional judicial review model and supported this result with a great

deal of antidrug invective similar to the Davis opinion. See United States v. Charters, 829

F.2d 479 (4th Cir. 1987).

32. This produces statements such as the one in an amicus curiae brief in Okin v.

Rogers that patients are "forcibly drugged into a physical stupor to prevent these activities. . . .

[Cjhlorpromazine . . . produced ... a marked lack of interest in what was going on. . . .

[I]t is difficult for patients so sedated that they can only sleep ... to become members of

the community again. . . . [P]henothiazines . . . decrease learning performance." Mental Health

Association, Civil Liberties Union of Massachusetts Amicus Brief at 45-46, Okin v. Rogers,

134 F.2d 650 (1st Cir. 1977) (No. 77-1201). In addition, the court in Rennie v. Klein, 476

F. Supp. 1294, 1299 (1979), modified, 653 F.2d 836 (3d Cir. 1981), vacated, 458 U.S. 1119

(1982), noted that "drugs inhibit a patient's ability to learn social skills needed to fully recover

from psychosis." A further extended quote gives one a flavor of the right-to-refuse treatment
movement's thinking on antipsychotic medication:

[DJrugs are the most painful, distressing ordeal they have ever experienced — in
a different class than prolonged solitary confinement or physical deprivation. . . .

The drugs can, however, cause a permanent psychotic condition. . . .

Physiologically, antipsychotic effects cannot be confidently distinguished from

crude measures—such as bleeding, purging, and, in all probability, lobotomy

—

which render individuals too weak or preoccupied to attend to their psychotic

urging. . . .

[Mjost acute psychotic episodes abate . . . without drugs. . . . Drugs are

remarkably effective restraining devices ....

Drugs also ease the burden of the custodian's remaining tasks .... [In the

past] staff accompanied every restrained or secluded patient to the bathroom; if

patients could not leave their rooms, staff had to clean up after patients who soiled
themselves. ... By contrast, drugged patients are generally ambulatory .... They

can walk to the dining room, en masse, feed themselves, return to their quarters

and relieve themselves

This psychological state, induced in confinees, must be every overweening

jailer's ideal. . . .



440 INDIANA LAW REVIEW [Vol. 25:429

is the insidious possibility that the unsubstantiated allegation of today's

case becomes tomorrow's generally established "legal fact." For example,

in In re the Mental Commitment of M.P.^^^ a well-known case used in
psychiatric circles, the Indiana Supreme Court opined that **[a]t the heart

of this case is the virtually undisputed allegation that a person medicated

with antipsychotic drugs has a 50% risk of contracting tardive dyskine-
sia.'*^"* No more than a year later, this assertion prompted an Illinois
appellate court to bolster its decision invalidating a trial court-approved

medication plan with the '*fact" that **[t]he Indiana Supreme Court found

that a person medicated with antipsychotic drugs has a 50% risk of
contracting tardive dyskinesia in addition to other unpleasant side ef-

fects."^^

These errors of fact and reasoning are no mere abstract concern. We
are not just dealing with a dissonance in interprofessional metaphysics.

The errors have real consequences. They affect the content of legal

Private facilities that routinely bound, shackled, restrained, benumbed, or

secluded the mentally ill would be intolerable today, because the state jealously

guards its monopoly on physical force. Thus, shifting custody from public to private

institutions, depended on the invention of a treatment form that made private

management of mental illness consistent with evolving general norms about physical

force and restraint. What private custodians cannot be allowed to accomplish with

physical restraint, they can do even more efficiently by drugging ....

Clinical state psychiatry's "paradigm"—if that is the appropriate term—is
"political," however, in a number of respects. . . . The apparent motivation is to

maximize drugging because of the drugs' custody-enhancing effects—a political rather
than a scientific objective. Its reduction of individuals to fungible entities without

distinguishing characteristics, its tolerance for state-induced distress, and its apparent

willingness to conceal the truth bespeaks political overreaching more than scientific

or professional error. . . .

Doctors lying to patients, their infliction of serious drug harms, and their

affronts to patient dignity can be checked by court decree.

GeUnjin, Mental Hospital Drugs: Professionalism and the Constitution, 72 Geo. L.J. 1725,

1744-64 (1984).

33. 510 N.E.2d 645 (Ind. 1987). At the time of this case, quantitative data on the

development of tardive dyskinesia (TD) fell short of acceptable standards of precision and

reliability. However, it is known with substantial certainty that there is almost no risk for

short-term patients, a category that describes the overwhelming majority of patients. We also
know that the risk goes up when high-dose medication is continued over the longer-term

(generally defined as beyond six months). A reasonable estimate, based on preliminary research
findings, is that the risk of developing TD increases about three percent per year. Thus, a
patient who has received medications for an aggregate span of three years has a 9% risk
and a 15*^0 risk after six years. The 50<7o risk "found" by the Indiana and Illinois courts

for mental patients, undifferentiated by the length of drug treatment, would in fact apply

only to patients who are well into their second decade of continuous medication. See infra
note 106 and accompanying text.

34. M.P., 510 N.E.2d at 646.

35. In re Orr, 176 lU. App. 3d 498, 513, 531 N.E.2d 64, 74 (1988).



1991] RIGHT TO REFUSE TREATMENT 441

representation provided to patients. They determine the practical outcomes

to the patients who are covered by the courts* rulings, either as direct
parties or far more broadly, as the indirect **beneficiaries" of the litigant

class. They turn the right to refuse into a proverbial double-edged sword,

one edge of which is capable of cutting deeply into the treatment rights

and needs of patients, their families, and professional care providers. Both

lawyers and psychiatrists can profit from trying to understand their dif-

fering professional philosophies and perspectives. These differences are

real, perhaps profound, and are not easily reconciled. Yet, differences in

values can never be bridged if the facts are ignored or misstated.

We will describe the risks and benefits of psychotropic drugs based
on well-controlled, verified, and verifiable investigations. Factual infor-

mation cannot tell us how the law should balance values in conflict, but
wrong facts can result in bad law. The translation of the abstract right-

to-refuse issue into real world treatment refusals has consequences which

are vastly more serious and more complicated than the law and legal

literature presume. We argue that a lawyer in possession of the medical
facts cannot maintain the fiction that liberty is best protected by a legal

philosophy—whether perceived as liberal or conservative—that holds the
right to refuse treatment as the patient's paramount right.

A. Reality of the Patient's Setting

Apart from the mythology surrounding medical treatments for psy-

chiatric patients, there is a second operating myth that determines the

predominant legal stance toward right-to-refuse cases. This second myth

concerns the type of mental patient for whom the right to refuse is at
issue and how and why the patient finds himself in the setting. Both
myths need to be undone before members of two diverse professions can

come to a mutual understanding or agreement on what is best for patients.
We deal briefly with the second myth first, before devoting the remainder
of the Article to the issue of psychotropic drugs.

Most right-to-refuse cases arise among patients who have been in-
voluntarily hospitalized. Voluntary patients who do not wish to cooperate
with the prescribed treatment regimen can simply leave the hospital against

medical advice or be discharged if they want to maintain the untenable

position of wishing to stay while rejecting the course of treatment decided

upon in the doctor's best medical judgment.^^ Outpatients can simply

36. More significant perhaps, is the empirical evidence that treatment refusals among
voluntary patients are qualitatively different than the refusals of involuntary patients. A 1980
study by Applebaum & Gtitheil found that voluntary patients may resist treatment for a
variety of reasons, but that the disagreements are usually resolved easily and quickly. See

Applebaum & Gutheil, Drug Refusal: A Study of Psychiatric Inpatients, 137 Am. J. Psychiatry



442 INDIANA LAW REVIEW [Vol. 25:429

refuse to take their medication.^^

For involuntary patients, there should be no illusions about the true

nature of their commitment (i.e.y how and why it took place).^* A court
ordered them to be admitted to a psychiatric hospital, based on legal

standards, substantive and procedural, that today are quite exacting.^^

They were found to either be so disabled as to pose a grave risk to their

own well-being or so dangerous as to present an inmiinent threat to others.
No alternative disposition less restrictive than hospitalization was deemed
safe or available, or if available and offered to the patient, was not

accepted by him. In personal terms, the patient's relatives felt hospital-

ization to be the only recourse, a judgment in which the family physician

or other treatment provider almost certainly concurred. By contrast, the
patient was unable to recognize his illness and his need to be hospitalized.

It would not be unusual for him to be distrustful of, or even overtly

angry at, those concerned about his mental health. Clinically, the patient's

picture would be as follows: the patient suffers from a major mental

illness (schizophrenia, mania, or psychotic depression, often with suicidal

tendencies), is delusional and clinically incompetent, and has a history of

repeated hospitalizations with an institutional record of psychotic episodes

including violence against himself or others frequently matched by a similar

340 (1980). Only a small minority of voluntary patients are persistent refusers. By contrast,

the typical involuntary patient who rejects treatment does so out of persistent delusions about
the treatment which are difficult to dispel. See infra note 41.

37. One of the drawbacks of outpatient care of mental patients is that many do not

take their prescribed medication regularly or stop taking it altogether. As a result, both legal

and medical practice have moved toward compelling previously hospitalized patients to continue

with their medication via discharge that is conditioned on their doing so, with rehospitalization

to occur if they violate the condition. For outpatients under such legal compulsion, the

decision to refuse to comply begins to resemble in its legal and clinical consequences, the

situation of the involuntarily committed treatment refuser. In addition, the concern about

side effects such as TD is real for the outpatient who remains under such compulsion for
the long term.

38. If flaws are perceived in the commitment of a particular individual or in the

commitment process, there are legal avenues for a direct challenge. To use the right-to-refuse
concept as the linchpin for such challenges is, if nothing else, strategically unsound in that

it produces a range of undesirable effects for the psychiatric treatment system and for patients

who are ordered to be treated by the system.
39. We permit ourselves an understatement here. The evidence is abundant that the

commitment laws today are overexacting and leave many individuals who desperately need
treatment untreated because the law, as interpreted by judges and sometimes even by treatment

providers, does not permit their commitment. The rise in the number of homeless people on

our streets and in our parks, many of whom are overtly psychotic, is not unrelated. For
some insights into this relationship, see Brooks, Law and Ideology in the Case of Billie Boggs,
26 J. Psychosocial Nursing & MEhrrAL Health Serv. 22 (1988) (analyzing the case of Joyce
Brown/Billie Boggs, particularly the trial judge's opinion ordering her release).



1991] RIGHT TO REFUSE TREATMENT 443

free world history.'"' This is the context in which we should view the pros
and cons of the right to refuse/'

40. Involuntary patients tend to be much sicker than voluntary patients. The formers'

illnesses progress to a point where they—and only they—fail to recognize their need for help.
From time to time the assertion (and it is no more than an assertion, though a quite tenacious

one), surfaces that mentally ill patients are no more dangerous than the general population.

See, e.g., Note, Developments in the Law: Civil Commitment of the Mentally III, 87 Harv.

L. Rev. 1190 (1974). Usually invoked in support of the assertion is a disparate set of studies

on varying population groups (hospitalized and nonhospitalized, voluntary and involuntary,

and even criminal offenders with mental disabilities) that use widely diverging definitions of

dangerousness and unmatching methodologies for detecting or measuring it. Most studies

capture only the most conspicuous expressions of dangerousness-^those which come to the

attention of enforcement authorities, as reflected in the number of arrests and convictions.

They do not capture the bulk of dangerous conduct that leads to rehospitalization or that

bypasses the criminal justice system and the violent, overtly threatening or self-destructive

behavior that occurs in the "private" realm of family, friends, or fellow patients. Finally,

the studies are old and would, irrespective of their relevance, credibility, or inclusiveness at

the time the data were collected, have little to say about the characteristics of contemporary

populations hospitalized under today's restrictive commitment laws. The results of more recent

studies tend to belie the sanguine conclusions of the earlier research. See, e.g., Brakel, Sampling

The Mental Health Law Literature: Three Recent Books, 1981 Am. Bar Found. Res. J. 535
(all assessments of dangerousness involve a heavy, but usually hidden, "political" judgment

component); Lagos, Perlmutter, & Saexinger, Fear of the Mentally III: Empirical Support for
the Common Man's Response, 134 Am. J. Psychiatry 1134 (1977); Sosowsky, Crime and
Violence Among Mental Patients Reconsidered in View of the New Legal Relationship Between
the State and the Mentally III, 135 Am. J. Psychiatry 33 (1978); Zitrin, Hardesty, Burdock,

& Drossman, Crime and Violence Among Mental Patients, 133 Am. J. Psychiatry 142 (1976).
A recent study, open to a variety of interpretations, is Hiday, Dangerousness of Civil
Commitment Candidates: A Six-Month Follow-Up, 14 L. & Hum. Behav. 551 (1990). Much
of its value lies in its demonstration of the definitional problem and the many indicators
bearing on dangerousness.

Among the involuntary committed populations today, there may occasionally be persons
with diagnoses such as multiple personality, various brief reactive psychoses, or any number

of other states of lesser severity in personality disorganization or acuteness. Consensually,

medication treatment would not be appropriate in such cases, and the idea that it would be

routinely prescribed either in private or public hospitals is simply false.

41. There is persuasive evidence that the treatment refusals among the involuntarily

committed population are a direct and persistent consequence of major mental illness. See

Ciccone, Tokli, Clements, & Gift, Right to Refuse Treatment: Impact of Rivers v. Katz, 18
Bull. Am. Acad. Psychiatry & L. 203 (1990) [hereinafter Ciccone, Right to Refuse]
(concluding from an empirical study of two samples that "the reasons for refusing medication

were rarely independent of an ongoing psychosis"). In general, most empirical studies find

treatment refusers to be seriously ill patients who refuse because of denial of their illness or
delusional thought about medication. See Bloom, Faulkner, Holm, & Rawlinson, An Empirical
View of Patients Exercising Their Right to Refuse Treatment, 1 Intl. J.L. Psychiatry 315

(1984) [hereinafter Bloom, An Empirical View]; Young, Bloom, Faulkner, Rogers, & Pati,
Treatment Refusal Among forensic Inpatients, 15 Bull. Am. Acad. Psychiatry & L. 5
(1987).



444 INDIANA LAW REVIEW [Vol. 25:429

B. Treatment and Drugs: A General Description of the State of
Medical Art and Research Today

What can be done for these patients? Formerly, not much. The better
hospitals may have provided decent physical care and custody, but little
effective treatment. That has changed dramatically, however, with the

advent of the so-called psychopharmacological revolution—a revolution
we feel it would be tragic to reverse because of some presumed legal
"liberty interest" that would allow the patients most in need of its benefits

(as so certified by the legal system itself) to refuse them.

Medicine has developed a methodology for the evaluation of drug

treatment in general medicine, pediatrics, and surgery. The same meth-

odology is used in drug evaluation for psychiatric treatment. Although

psychiatric theory can be **speculative," with different experts giving

different theories, drug evaluation is markedly different in that it is

objective, empirical, unbiased, and stringently regulated by the federal

Food and Drug Administration (FDA).'^^ Current, well-controlled studies
show the dramatic value of treatment with antipsychotic medication. In

the note below, we give a selective sampling of the writings and reports
of many studies that form the basis for the textual discussion.'*^

42. The FDA requires that any new medical drug or device be proven safe and
effective before it is marketed. This means that the producing company must provide data

from controlled, objective studies. In the case of drug manufacturers, this means "double

blind" studies often involving thousands of patients conclusively showing that the new drug

is superior to placebo or comparison medication. These drug trials are conducted under the

threat of inspection by FDA officials. In anticipation of FDA audits, representatives of the
sponsoring drug companies monitor the trials to insure that they are done in compliance with

the FDA's exacting requirements. The FDA takes legal action against investigators who violate
the prescribed procedures. Many other countries where modem psychotropic drugs are used
have similar validation procedures. Given this multiple review process of trials involving large

numbers of subjects, the safety and efficacy of the drugs can be said to be established beyond

a reasonable doubt, a legal standard that by the law's own measure can be fulfilled by a
single credible witness testifying in open court.

Some have charged that the operational mechanics of antipsychotic drugs are not well

understood, suggesting that the theory on how the drugs work is no more robust than
psychotherapy theory. In fact, we do know how the drugs affect the biological processes of
the brain, though our understanding of the biological causes of mental illness and why the

drugs improve the functioning levels of schizophrenics or patients with other serious mental

illnesses is hmited. Nevertheless, the conclusion that the drugs work is beyond dispute.

43. See M. Greenblatt, M, Solomon, A. Evans, & G. Brooks, Drug and Social
Therapy in Chronic Schizophrenia (1965) [hereinafter M. Greenblatt]; L. Grinspoon, J.
EwALT, & R. Shader, Schizophrenic Pharmacotherapy and Psychotherapy (1972) [here-
inafter L. Grinspoon]; D. Klein & J. Davis, Diagnosis and Drug Treatment of Psycidatric
Disorders (1st ed. 1%9); P. May, Treatment of Schizophrenics: A Comparative Study
of FrvE Treatment Methods (1%8); G. Paul & R. Lentz, Psychosocl^l Treatment of
Chronic Mental Patients (1977); Cole, Goldberg, & Davis, Drugs in the Treatment of



1991] RIGHT TO REFUSE TREATMENT 445

The placebo trial is the research methodology of choice for controlled

studies. It is generally considered unethical to continue placebo clinical

trials of acutely ill patients for longer than six weeks, which limits the

"hard** data on the benefits of drugs. However, we know on the basis
of more naturalistic longitudinal studies, anecdotal information, and in-

dividual case histories, that drug-induced improvements continue for several

weeks or even months. The best data on the efficacy of the drugs are,

of course, from the controlled studies. There are other sources of usable

information, however, including: (1) institutional treatment practices; (2)

the reports of uncontrolled clinical trials; and (3) reports from individual

psychiatrists on their day-to-day practices. We focus first on this **softer**
information to help set the practical context, including the history of the

drug revolution in psychiatry.

Today, antipsychotic drugs are used throughout the world as the

preferred treatment for schizophrenic, manic, and psychotically depressed

Psychosis, in Psychiatric Drugs 153 (P. Solomon ed. 1966) [hereinafter Cole, Drugs]; Davis,

Recent Advances in Pharmacologic Treatment of the Schizophrenia Disorders, in Psychiatry

1982 Annual Review 178 (1982); Davis, Important Issues in the Drug Treatment of Schiz-
ophrenia, 6 Schizophrenia Bull. 70 (1980); Davis & Chang, A Look at the Data, in
Controversy in Psychiatry, 595-660 (J. Brady & H. Brodie eds. 1978); Davis, Janicak,
Chang, & Klerman, Recent Developments in the Drug Treatment of Schizophrenia, 133 Am.
J. Psychiatry 208 (1976); DuBose, Of the Parens Patriae Commitment Power and Drug
Treatment of Schizophrenia: Do the Benefits to the Patient Justify Involuntary Treatment?,
60 Minn. L. Rev. 1149 0976); Englehardt, Rosen, Freedman, & Margolis, Phenothiazines in
the Prevention ofPsychiatric Hospitalization, 16 Archives Gen. Psychiatry 98 (1%7); Hogarty

& Goldberg, Dmg and Psychotherapy in the Aftercare of Schizophrenic Patients: One-Year
Relapse Rates, 28 Archives Gen. Psychiatry 54 0973); Hogarty, Goldberg, & Schooler,
Drug and Psychotherapy in the Aftercare of Schizophrenic Patients II Two-year Relapse Rates,

31 Archives Gen. Psychiatry 603 (1974); Hogarty, Goldberg, & Schooler, Drug and Psy-
chotherapy in the Aftercare of Schizophrenic Patients III. Adjustment of Non-relapsed Patients,

31 Archives Gen. Psychiatry 609 (1974); Klein, Rosen, & Oaks, Premorbid Asocial Ad-
justment and Response to Phenothiazine Treatment Among Schizophrenic Inpatients, 29
Archives Gen. Psychiatry 480 (1973); Leff & Wing, Trial of Maintenance Therapy in
Schizophrenia, 3 Brit. Med. J. 599 (1971); May, Psychotherapy Research in Schizophrenia—
Another View of Present Reality, 9 Schizophrenia Bull. 126 (1974) [hereinafter May,

Psychotherapy Research]; May, Tuma, & Dixon, Schizophrenia: A Follow-up Study of the
Results of Five Forms of Treatment, 38 Archives Gen. Psychiatry 776 (1981) [hereinafter

May, Schizophrenia]; May, Tuma, Yale, Potepan, & Dixon, Schizophrenia: A Follow-up
Study of Treatment II. Hospital Stay Over Two to Five Years, 33 Archives Gen. Psychiatry
481 (1976) [hereinafter May, Follow-Up]; May, Van Putten, Yale, Potepan, lender, Fairchild,

Goldstein, & Dixon, Predicting Individual Responses to Drug Treatment In Schizophrenia:
A Test Dose Model, 162 J. Nervous & Mental Disease 177 (1976) [hereinafter May,
Predicting]; The National Institute of Mental Health Psychopharmacology Service Center

Collaborative Study Group, Phenothiazine Treatment in Acute Schizophrenia, 10 Archives

Gen. Psychiatry 246 (1964) [hereinafter Collaborative Study Group]; Williams, Karon, &
Vandenbos, Consequences of Psychotherapy for Schizophrenic Patients, 9 Psychotherapy:

Theory, Res. & Pract. Ill (1972).



446 INDIANA LAW REVIEW [Vol. 25:429

patients—the sort of patient who, when decompensated, would be subject
to involuntary commitment in this country."^ When antipsychotic drugs
were discovered in the early 1950's, psychiatry in the United States was

predominantly psychoanalytic in orientation and there was considerable

inertia to keep it that way. It was not organized psychiatry, but Congress,

that mandated research on drug treatment efficacy. As a result of this
research, we know the treatment is effective based on objective, scientific
evidence. Yet, for many years, even after conclusive evidence was obtained,
psychiatric training programs did not cover drug treatment in depth and

indeed, a few still do not. Some members of the psychiatric profession
remain inadequately trained or uninterested in drug use. A good percentage
of them are nontreating physicians. For example, many forensic psy-
chiatrists are not well informed about psychopharmacology and its ap-

plications. Psychologists and social workers are generally not trained in

psychopharmacology, and they are prohibited by the profession's licensing

requirements from prescribing drugs."^^ Not surprisingly, skepticism or

opposition to drug use within the mental health professions tends to be

confined to those groups. Among physicians who treat mental patients

44. The class of involuntarily committed psychotic patients is a small subset of mentally

ill patients. The physician author of this Article has talked with many leaders of the World

Psychiatric Association and the World Health Organization-funded international research

centers, and they are in full agreement that psychotropic drug treatment or electroconvulsive

therapy is the treatment of choice for these patients. With the exception of a few psychiatrists

who work in private sanitaria, there is no dissenting opinion in psychiatry. We do not know
of the existence of data which document the treatment of involuntarily committed patients

around the world, but our experience in visiting hospitals in numerous countries in both the

developed world (Western Europe and Japan) and the developing world (China, India, Thailand,

Morocco, Peru, Columbia, Panama) and in talking to the leaders of international psychiatric

associations, provides irrefutable support. In short, there is no alternative to drug treatment

or ECT for major mental illness, and a ban on either, whether imposed by general law or
regulation or at the behest of the patient himself, is a ban on effective treatment. Standard

text books from various countries show that there is a world medical standard for the treatment

of these psychiatric conditions. See L. Hollister & J. Csernansky, Clinical Pharmacology
OF Psychotherapeutic Drugs (3d ed. 1990); R. Kendall & A. Zealley, Companion to
PsYCfflATRic Studies (4th ed. 1988); L. Kiloh, J. Smith, & G. Johnson, Physical Treatments
IN Psychiatry (1988); J. Tupin, R. Shader, & D. Harnett, Handbook of Clinical
Psychopharmacology (1990).

45. It is worth noting that the American Psychological Association gave the antidrug

movement ammunition by filing an amicus brief with the United States Supreme Court in

support of the petitioner inmate in Washington v. Harper. On the other hand, to give credit
when credit is due, it has been the psychologists with methodological expertise who have
been principally responsible for the scientific rigor of the controlled studies providing the

data on the efficacy of drugs. There has been much recent pressure to allow psychologists

to prescribe drugs. This idea is currently being implemented on a limited, experimental basis.

It is doubtful that organized psychology will maintain its antidrug stance if and when

psychologists are permitted to prescribe the medications.



1991] RIGHT TO REFUSE TREATMENT 447

in hospitals, there is virtually no controversy about either the need for

or benefits of drugs.

There is substantial evidence that the major mental disorders are at

least in part biologically based. '*^ This has strong, if not irresistible,

implications for the treatment of these disorders, though the implications

have been and continue to be resisted by some. There are both behavioral

therapists and psychoanalysts who write about the successes of psycho-
logical treatment of patients with major mental illnesses, but a great many
of these patients also received psychotropic medication. "^^ One cannot make
valid inferences about the beneficial results of psychotherapy alone if the

data include patients also treated with medication. It has been argued

that these studies support the notion that psychotherapy or behavioral

therapy given along with drugs produces a better result than drugs alone,

but the truth is that drug treatment is a prerequisite for the beneficial

effects of psychological treatment. In the psychological treatment cases

described, the drugs were an uncontrolled variable of the treatment process,

and one can make no inference about what would have happened if they
had not been used."**

46. An evaluation of current textbooks in psychiatry indicates that for hospitalized
patients, psychiatry as a field is primarily considering biological or biosocial explanations.

See, e.g., H. Kaplan & B. Sadock, Comprehensive Textbook of Psychiatry (5th ed. 1989).
Modem psychiatry recognizes both psychosocial and biological antecedents to major mental
disorders. It is rare to find a psychiatrist who is exclusively psychological in orientation with
respect to committed patients. There is solid, irrefutable evidence that a strong genetic factor

is present in their diseases so that those who consider mental illness a myth will have to
concede that this **myth" is passed through the genes. It is beyond the scope of this Article

to give a review of biological psychiatry, but we know that major mental illnesses have a

strong hereditary component. Identical twins usually have the same disease and children

(including twins) adopted into normal families have the disease of their biological parents,

not their environmental parents. There are many biological abnormalities that have been
consistently found in persons suffering from schizophrenia, mania, and psychotic depression.

47. Three of the most frequently quoted studies are: Karon & O'Grady, Intellectual
Test Changes in Schizophrenic Patients in the First Six Months of Treatment, 6 Psychotherapy:

Theory, Res. & Prac. 88 (1%9); Karon & Vandebos, Experience, Medication and the
Effectiveness of Psychotherapy with Schizophrenics, 116 Brit. J. Psychiatry 427 (1970); and

Karon & Vandenbos, The Consequences of Psychotherapy for Schizophrenic Patients, 9
Psychotherapy: Theory, Res. & Prac. Ill (1972). In these studies, many patients in the
psychological treatment groups (psychoanalysis or behavior therapy) received drugs. These

studies may support the effectiveness of psychological treatment, but they do not negate the
effectiveness of drug treatment. Karon combined data from patients who received substantial
doses of drugs with those who had only minimal drugs, and many of Paul's "behavior
therapy" patients received drugs during the course of the study.

48. Rosen, The Treatment of Schizophrenic Psychosis by Direct Analytic Therapy, 21

Psychiatric Q. 117 (1947) (reporting on a series of patients who were said to have dramatic
results with psychoanalysis alone). See also J. Rosen, Direct Analysis (1953). However,

these results were later challenged because many of the patients were not schizophrenic.



448 INDIANA LAW REVIEW [Vol. 25:429

Not all drugs used in psychiatry are alike, and they cannot be prescribed

indiscriminately for different disorders/^ Lithium as well as several an-

ticonvulsant drugs may be used effectively in treating acutely manic pa-
tients, often in combination with antipsychotic drugs. The former drugs

can be used alone, but the rate of response is substantially slower. Severely

impaired judgment may persist and, at least potentially, any number of
violent acts may take place before the full effect is achieved. For schiz-
ophrenia, the only effective drugs are antipsychotics. Electroconvulsive

therapy (ECT) also has important uses in the treatment of mania and

schizophrenia, especially in emergency cases {e.g., catatonia) or alterna-

tively, when the patient does not respond to the drugs or does not tolerate

their side effects. For psychotic depression, effective treatment is ECT or
the combination of antipsychotic drugs and antidepressant drugs. Anti-

depressant drugs alone are not an effective treatment for psychotic de-

pression. ^° There have been no controlled evaluations of psychotherapy

alone for the severely manic or the psychotically depressed, involuntarily

committed patient. Positive individual case histories of extremely disturbed

psychotic patients treated with psychotherapy have been reported, but

there are no reports documenting successful treatment without drugs for

any large series of patients.^' It is difficult to believe that large successes

occur in either public or private hospitals without the psychotherapists

writing about the results.

For patients suffering from schizophrenia who receive psychotherapy
alone, the results have been disastrous." There have been a few control

studies and all of them report that psychotherapy by itself does not

Horwitz, Polantin, Kolb, & Hoch, A Study of Cases of Schizophrenia Treated by "Direct
Analysis,'' 114 Am. J. Psychiatry 780 (1958). In addition, a substantial number of patients

were rehospitalized at the time the author was claiming permanent cures. This follow-up by

an independent psychiatrist destroyed the credibility of the original report. The claims for

psychotherapy alone simply have not held up.

49. Important as this information is, it is lost in the legal context when right-to-refuse

treatment decisions fail to differentiate among illnesses or drugs and psychotherapy is indis-

criminately viewed as an alternative.

50. The treatment for schizophrenia, mania, and psychotic depression is similar world-

wide. Like physics or chemistry, psychopharmacology is universal. Some standard U.S. text-

books are translated and used in developing countries, such as the physician author's textbook

on psychopharmacology which has been translated in Chinese and used in the Peoples Republic

of China. See W, Appleton & J. Davis, Practical Clinical Psychopharmacology (2d ed.
1980). English has become an international medical language, and the texts are read by

academic psychiatrists in English. Academics who write their own text in their native language
draw upon the same sources of psychopharmacologic knowledge quoted here and summarized

above.

51. See supra note 43.

52. The physician author has reviewed the data in detail elsewhere. See M. Greenblatt,
supra note 43; L. Grinspoon, supra note 43; Davis, & Chang, supra note 43.



1991] RIGHT TO REFUSE TREATMENT 449

produce good results and is inferior to drug therapy." When psychotherapy
is used in addition to drug therapy in an inpatient setting, the outcome

(as measured by the discharge rate) is not materially affected.^'^ Some
studies find a somewhat better outcome and others find little or no

difference.^^ After patients are discharged from the hospital and are living

at home, and when supportive family treatment is added to antipsychotic

drugs, the combined therapies are substantially better than drug therapy

alone. The key in post-discharge situations is to educate the patient about

the nature of the schizophrenic illness and to help the patient and the

family adapt to the illness.^ For the hospitalized population, however,

control studies demonstrate conclusively that drug-free patients fare poorly

and that psychotherapy alone is useless.^^

With appropriate drug treatment, the vast majority of hospitalized

patients improve to the point where they can return home rather quickly. ^^

53. See M. Greenblatt, supra note 43.
54. See May & Simpson, Schizophrenia: Evaluation of Treatment Methods, in Com-

PREHENSWE Textbook of Psychiatry 1240-74 (H. Kaplan, A. Freedman, B. Sadock eds. 3rd

ed. 1980); Schooler, Antipsychotic Drugs and Psychological Treatment in Schizophrenia in

Psychopharmacology: A Generation of Progress 1155-68 (M. Lipton, A. DiMascio, & K.
Killam eds. 1978).

55. The best of these studies are from the McLean Hospital at Harvard University.

See Gunderson, Frank, Katz, Vannicelli, Frosch, & Knapp, Effects of Psychotherapy on
Schizophrenia II. Comparative Outcome of Two Forms of Treatment, 10 Schizophrenia
Bull. 564 (1984) (finding some gains, but not substantial gains, when psychotherapy was

added to drugs). One can argue about how great an advantage psychotherapy is, but we
emphasize that this is psychotherapy-plus-drugs. Such data are not relevant to the right to

refuse medication treatment.

56. There are several controlled studies supporting the efficacy of psychotherapy-plus-

drugs. Psychotherapy in the outpatient setting has been proven to be effective, but we must

emphasize again that it is given with drugs. Indeed the family effect found in these studies

is equal to the drug effects in magnitude. As a practical matter, however, such intensive

family therapy is generally not available except in a research setting at a few institutions,

but its use is spreading. We enthusiastically recommend such psychotherapy and our above
remarks against psychotherapy alone are to be placed in the context of our argument on the

right to refuse drug treatment. We are not against psychotherapy.
57. See May & Tuma, Community Follow-up of Treatment of Schizophrenia Issi4es

and Problems, 35 Am. J. Orthopsychiatry 754 (1965); May & Tuma, Treatment of Schiz-
ophrenia, 3 Brit. J. Psycihatry 503 (1965).

58. Exact data pertinent to our context are difficulty to find. For the specific purposes

of this Article, we checked with physicians at random in both private hospitals and in the

public sector state hospital system. Respondents in both settings indicated that it is rare for

a patient to be hospitalized continuously for more than **a few weeks." Some private hospitals
have long-term care sections, but even there, the length of stay is counted in months, not

years. The 1980 National Data Book produced by the United States Department of Health

and Human Services pegged the average length of stay for patients in public mental health
facilities, undifferentiated by type of admission, at slightly longer than three weeks. More

recent estimates speak of even shorter terms. By contrast, a 1990 publication uses 1983 NIMH



450 INDIANA LAW REVIEW [Vol. 25:429

The time for improvement is important.^^ It takes about three to four
weeks to achieve substantial improvement and approximately six weeks

more to get optimal improvement. The majority of patients usually recover

enough to be discharged in the first several weeks, but drug-induced

improvement continues when the medication is taken at home. Some
patients will have residual symptoms, but many will be * 'cured" or almost
cured. The more accurate term which physicians use is "in remission,"

because many of these patients will relapse in the ensuing years. Some
will never function well outside a hospital despite the improvement they

showed in the hospital.

What is important for patients' rights is that, with medication, most
patients recover enough to go home and have their liberty restored. Once
free and competent (if we may use the word in its common sense meaning),
they can then choose to refuse or to take medication. Paradoxically, if

their right to refuse medication is protected as an absolute right, they

will never make the decision in a "competent" state themselves. The legal
process will make it for them.

It should also be noted that for patients suffering from one of the

major mental illnesses, there is no alternate "less restrictive" treatment

to drugs or ECT. The alternative is no treatment.^ Some may say that
drug treatment makes psychological treatment possible and is not in itself

primary. Even if this were true, it would not affect our argument. The

prominent antidrug psychiatrist Laing referred his very ill patients for

"utilization" survey data to arrive at substantially longer hospitalization terms. See Rosenheck

& Astrachan, Regional Variation in Patterns of Inpatient Psychiatric Care, 147 Am. J.
Psychiatry 1180 (1990). Combining figures from all components of the inpatient mental

health care system (general and psychiatric, private and public, federal as well as state and

county), this study reports the average length of stay as 41 days; 92 days for patients in

state and county mental facilities. To the extent the discrepancies are explainable at all, they

may be traced to the fact that a small percentage of chronic, long-term patients drives up
the average dramatically. The lower official reports and estimates for the average patient may
remain accurate.

59. Patients who refuse medication also increase the length of hospitalization—their
own as well as the general average.

60. We have noted above, both in the text and footnotes, that for involuntarily
committed patients suffering from the major mental illnesses (schizophrenia, mania, psychotic

depression), the world-wide standard treatment is psychotropic drugs or ECT, the former

being in legal nomenclature a less restrictive alternative. We cannot find reference to less
restrictive alternatives when patients with these diagnoses and this level of severity are managed

without medication or ECT. Neither are less restrictive alternatives advocated in standard

psychiatric textbooks in any country of this world or in reports published by official bodies

such as the FDA, the American Medical Association, or the American Psychiatric Association.

See, e.g., M. Greenblatt, supra note 43; Davis, Janicak, Chang, & Klerman, Recent Advances
in Pharmacologic Treatment of the Schizophrenia Disorders, Psychiatry 1982 Annual Review

178 (1982). Psychiatric textbooks have chapters on a wide variety of psychosocial treatments,

but these texts also recommend medication.



1991] RIGHT TO REFUSE TREATMENT 451

pharmacotherapy.^' It is extremely rare to find a psychiatrist who does
not either prescribe or refer some of his patients to others for medications.

We have no hard data, but we estimate that 99 out of 100 psychiatrists
use medication in at least some of their cases. Intensive, long-term inpatient

psychoanalysis is not even offered in most hospitals. Drugs are equally

used in expensive private or academic hospitals and in state hospitals. It

is not true that wealthy patients with major mental illnesses receive

psychotherapy without drugs and that poor patients are drugged. ^^

C. Clinical Benefits of Drug Treatment

We now turn to the "hard" data from controlled studies to show
the benefits of antipsychotic drug treatment. As an example, we use the
raw data from an early National Institute of Mental Health (NIMH) study
comparing the efficacy of drugs (/.e., chlorpromazine, thioridazine, and

fluphenazine) against a placebo for schizophrenic patients.^^ The results

were dramatic and today they would be even stronger, given the devel-

opment of more effective drugs and a more sophisticated knowledge of

when and how to use them.
In this study, some 350 patients were randomly assigned to receive

the medications, which were then new, or the placebo. The trials, which

ran for six weeks, were double blind in that neither the patient nor the

physician knew which subjects were receiving the medication or the placebo,

both of which were administered in identical capsules or tablets. The

clinical changes were evaluated by unbiased blind raters using quantitative

evaluation scales.

The outcome was reflected by two variables: one measured improve-

ment over the course of the trial, and the other assessed the patient's

61. The physician author has personally discussed this question with Dr. Laing, who

told the author that he referred the more disturbed patients to a biological psychiatrist as

an addition to psychotherapy. Many of the "nonmedical" psychotherapists deal with outpatients
who are seleaed to be good candidates for psychotherapy. These are substantially different
patients than involuntarily committed patients. Even for such different populations, Laing

and his coworkers explicitly state that the majority of patients also receive drugs. See Esterson,

Cooper, & Laing, Results of Family-Oriented Therapy with Hospitalized Schizophrenics, 2
Brit. Med. J. 1462 (1%5).

62. There is a social movement of followers of Thomas Szasz and Peter Breggjn,

most of whom are nonmedical and whose "thesis" is rejected by the medical community.
This movement is against all coercive psychiatry and posits the proposition that mental illness

is a myth. The leaders of this movement, who themselves are praaicing psychiatrists, know

better, but their followers do not. The S2Lme phenomenon can be found in medicine and

surgery. Christian Science, for example, rejects virtually all of contemporary medicine. There

are advocates for laetrile and other miracle interventions. These are fringe positions or ideologies

not to be confused with legitimately debatable schools of scientific or professional thought.

63. Cole, Drugs, supra note 43; Collaborative Study Group, supra note 43.



452 INDIANA LAW REVIEW [Vol. 25:429

condition at the end. At the beginning of the study, most patients had

severe psychotic symptoms and almost all were rated as either moderately
ill or severely ill. The study hypothesized that at the end of six weeks,
patients could be completely remitted, have only borderUne symptoms, or

retain more noticeable symptoms ranging from mild to moderate to severe.
The progressive improvement scale used the ratings very much improved,
substantially improved, improved, no change, or worse.

% of % of
Changes Condition Patients Patients

During Trial After Trial on Drug on Placebo

Very much improved Remitted 16 1
Substantially improved Borderline symptoms 29 11

Improved Mild symptoms remain 16 10

Improved Moderately ill 31 31

Not changed Moderately ill 6 15

Deteriorated Severely ill 2 33

Note that at virtually every point on the scale patients receiving drugs

did significantly better than those receiving the placebo. Forty-five percent

(\6% + 29%) of the drug patients were rated as very much or substantially
improved, with either complete disappearance of symptoms or only a few

minor symptoms remaining. Only twelve percent (1% + 1197o) of the
placebo patients showed comparable improvement. The great majority of

placebo patients (31*^0 + 1597o + 33%) were rated as still having at least
a moderate degree of schizophrenic illness, with one-third (the last category)

showing marked deterioration to severe illness. Failure to treat in the first

six weeks thus leads to serious chnical harm for many patients.
We have presented an original study to give the lawyer a feel for

the raw data. This was a National Institute of Mental Health study

performed by academic investigators from a university. It is consistent

with approximately seventy other placebo-controlled studies.^ There are

64. D. Klein & J. Davis, supra note 43; Davis, Recent Developments in the Drug
Treatment of Schizophrenia, 133 Am. J, Psychiatry 208 (1976); Davis, Janicak, Chang, &
Klerman, supra note 43; Davis, Janicak, Linden, Molonoey, & Pavkovic, Neuroleptics and
Pychotic Disorders, in Neuroleptics: Neurochemical, Behaviorial and Clinical Perspec-
tives (J. Coyle & S. Enna eds. 1983). Many of the legal critics of drug treatment cite standard
psychiatric texts such as the author's book as reference for side effects, but do not mention

the evidence for its efficacy. See, e.g., W. Appleton & J. Davis, supra note 50; DuBose,
supra note 43.



1991] RIGHT TO REFUSE TREATMENT 453

no contradictory data. Furthermore, dose-response studies confirm that

there is a positive correlation between the amount of drug given and the

beneficial effects.^^

Much of the legal literature refers to the principle of least restrictive
treatment, as if there are effective treatments of major mental illness other

than drug treatment and ECT. Many legal commentators assume that
drugs are ineffective as treatment and are effective only as sedatives or

as a form of punishment.^ The sedative property makes the institution

safer by tranquilizing the violent patients, and the punishment effect deters

violence. This is false. Most antipsychotic drugs have minimal sedative

properties, some have mild to moderate sedative effects, and a few are

not sedative at all.^^ In addition, there is no evidence showing that they

are effective negative reinforcers in animals or that their benefit in humans

is due to punishment.

D, Research Findings on the Harms Resulting
from Delayed Treatment

A patient's exercise of the right to refuse treatment means that there
will be no treatment or, at least, that it will be delayed. The difference

may not be material because there is substantial evidence that treatment
delayed is treatment denied. The legal rights conmiunity is unaware or

ignores the exorbitant costs of delayed or denied treatment. Substantial

clinical harms can result to patients who are not treated in a timely
fashion. In turn, clinically deteriorating patients can do much harm to
their institutional surroundings and simultaneously increase the financial

costs of their own care as well as the care of their fellow patients. These
costs will in many cases be charged to the public health systems {i.e.,
they will be "societal" in a direct sense as well as in subtler, more

circuitous ways through insurance rates or other welfare taxes). Finally,

time itself can be viewed as a cost when nothing of clinical or legal
benefit is accomplished as a result of ill-advised assertions of the right

to refuse treatment.

1, Time Costs of Refusals: Loss Without Gain.—When the law states
that a patient's refusal can be overridden only by judicial process, critical

treatment time is lost. Most patients wait for many weeks or even months
with no effective treatment. There is then a judicial hearing in a so-called

medication court, and almost always, the judge orders treatment. Thus,

65. See Davis, Barter, & Kane, Antipsychotic Drugs, in H. Kaplan & B. Sadock,
Comprehensive Textbook of Psychiatry 1662 (5th ed. 1989).

66. See supra notes 31-32.

67. See Davis, Barter, & Kane, supra note 65, at 1662.



454 INDIANA LAW REVIEW [Vol. 25:429

nothing is gained in the legal sense, but much may be lost in terms of
the patient *s clinical condition.

Massachusetts is one state which has had substantial experience with

judicial review of medication, first under the temporary restraining order

(TRO) issued in the Rogers v. Okirf^ case and again when the Massachusetts

Supreme Court affirmed Rogers on remand.^^ Under the Rogers mandate,

medication, except in strict emergency situations, cannot be administered

over a patient's objection, unless the patient is first ruled incompetent by

a court. Several studies examined the time from the patient's first refusal

to the judicial decision. These studies found that these cases took an

average of four and a half months to come to trial. ''^ Moreover, the
outcomes of these cases suggest that almost all refusals lacked reasonable

bases. In one study of 1,514 Massachusetts cases, courts ultimately overrode

the patient in all but twenty-one (3.4<7o) of the cases.^'

A much smaller study at the Central New York Psychiatric Center,
a treatment facility for convicted offenders and pretrial detainees, focused

on the effects of Rivers v. KatzP^ This case, Uke Rogers, requires a

judicial competency hearing to override a patient's refusal of treatment.^^

Of eighteen refusers, three complied with the medical recommendation
prior to the hearing. In each of the remaining fifteen cases, the court

found the patient incompetent and approved the proposed medication.

The average time between the doctors' override petition to the court and

the hearing was twenty-four days.

Though generally less time-consuming than the judicial process, a

variety of clinical review procedures imposed by the courts have also

proved more costly than beneficial to the patients they were intended to

protect. A 1983 study at the forensic unit of Oregon State Hospital

68. 478 F. Supp. 1342 (D. Mass. 1979), affd in part, rev'd in part, 634 F.2d 650

(1st Cir. 1980), vacated sub nom. Mills v. Rogers, 457 U.S. 291 (1982).

69. Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 458 N.E.2d

308 (1983).

70. See Hoge, Gutheil, & Kaplan, The Right to Refuse Treatment under Rogers v.
Commissioner: Preliminary Empirical Findings and Comparisons, 15 Bull. Am. Acad. Psy-

chiatry & L. 163 (1987) [hereinafter Hoge, Right to Refuse]; Veliz & James, Medicine Court:
Rogers in Practice, 144 Am. J. Psychlvtry 62 (1987).

71. Schouten & Gutheil, Aftermath of the Rogers Decision: Assessing the Costs, 147
Am. J. Psychiatry 1348 (1990). Earlier, we noted the finding that almost all involuntary

patients refuse treatment for delusional reasons. See infra text accompanying note 115. Another

empirical finding is that the courts, although ostensibly deciding the issue of the patient's

competency, in fact focus on the appropriateness of the prescribed treatment. See Applebaum,

The Right to Refuse Treatment with Antipsychotic Medications: Retrospect and Prospects,

145 Am. J. Psychiatry 413, 416 (1988).
72. 67 N.Y.2d 485, 495 N.E.2d 337, 504 N.Y.S.2d 74 (1986).

73. Deland & Borenstein, Medicine Court II: Rivers in Practice, 147 Am. J. Psychiatry
38 (1990).



1991] RIGHT TO REFUSE TREATMENT 455

reported on thirty-three insanity acquittee patients who refused medica-
tion.^"* The independent psychiatrists performing the initial clinical review

recommended treatment overrides in all cases. The chief medical officer,

with final authority in the disputes, agreed in thirty-two cases. The process

took an average of nine days. During the nine days between the refusal

and override decision, there were thirty-six psychiatric emergencies for the

thirty-three unmedicated patients.

In another study, several of the same researchers focused on treatment

refusals in one of Oregon's civil hospitals, including patients who objected
to treatment upon admission, as well as those who complied initially but
refused later. ''^ The rate of override, by the same clinical review process

as in the forensic setting, was ninety-five percent for all cases, with the

length of time between the override petition and the decision being fifteen

days on the average for the initial refusers and a full seventy-seven days

for patients who were compliant, but later became uncooperative.
Under the Jamison-Farabee'^ consent decree in California, which man-

dated outside clinical review of all treatment plans involving psychoactive

medications within three days, 2,700 cases received this second medical

opinion over a period of three years.^^ The results were approval of

medication in over ninety-eight percent of the cases and reversals in less

than two percent. In these forty-seven instances, significant deterioration

occurred in twenty-five, no deterioration was seen in eight, and the clinical

outcome of the rest was unclear.^^ Although the California procedure

results in minimal delay, it wastes clinical resources in performing the

review and results in harm to many of the patients whose refusal of
treatment is not overridden.

A 1982 study reported on a former clinical treatment review protocol
at Minnesota's Anoka State Hospital, a 236-bed facility serving the Min-
neapolis-St. Paul metropolitan area.^^ Treatment refusals (classified as

74. Williams, Bloom, Faulkner, Rogers, & Godard, Drug Treatment Refusal and
Length of Hospitalization of Insanity Acquittees, 16 Bull. Am. Acad. Psychlatry & L. 279
(1988). In the one remziining case, the patient deteriorated one month later, and a second

examiner recommended treatment. Thus, the treatment overrides were sustained in 97*% of

the cases initially and 100% if the subsequent second opinion is counted. Oregon uses an

administrative review mechanism developed originally in New Jersey. It responds to an existing
statute specifying that involuntary patients have a right to be free from "unusual or hazardous

treatment procedures including ECT unless they have given their express and informed consent."
75. Bloom, An Empirical View, supra note 41.
76. No. 78-0445 WHO, slip op. (N.D. Cal. Apr. 26, 1983).
77. See Hargraves, Shumway, Knutsen, Weinstein, & Swuter, Effects of the Jamison-

Farabee Consent Decree: Due Process Protection for Involuntary Psychiatric Patients Treated
with Psychoactive Drugs, 144. Am. J. Psychiatry 188, 190 (1987).

78. Id.

79. Zito, Lentz, Routt, & Olson, The Treatment Review Panel: A Solution to Treatment
Refusal?, 12 Bull. Am. Acad. Psychiatry & L. 349 (1984).



456 INDIANA LAW REVIEW [Vol. 25:429

emergency or nonemergency) were reviewed by a treatment review panel

(TRP), which approved administration of the medication in ninety-five

percent (59/62) of the emergency cases and sixty-seven percent (127/191)
of the nonemergencies during the twenty month study period. Under the
protocol, the TRP's decision was required to be made within seven days.
The rate of refusals was fifteen percent among admissions during this
period, with a sizable number of patients refusing repeatedly, leading to
multiple reviews of their cases.^°

In total, there have been approximately twelve studies of 5,(XX) cases

of patient's refusals of treatment.*' Courts have sustained the refusal in

only three percent of the cases, at an average time cost of forty-eight

days. CHnical review has affirmed the patient's rejection of treatment in

four percent of the cases*^ and comes at a cost of three to fifteen days

in treatment time lost (not counting the unusual seventy-seven day delay

for post-admission refusers in Oregon's civil hospital). Several reports note

that even in those rare cases when the formal judicial or clinical decision
upholds the patient's right to refuse, clinical deterioration often results.*^

Finally, not one of the studies reports clinical benefit to the patient from

a delay in treatment. Most studies did not specifically look for such results,
but presumably would have noted them if found incidentally. The lack
of such a finding is more significant yet for those that did.^

2. Clinical Costs: Long-Term Harms.—Because reviews of patients'
refusals take substantial time, it is important to ascertain whether and to

what extent long-term treatment delay affects recovery. Although most

controlled trials last only weeks, one longitudinal study of the effect of

psychotherapy versus drug therapy by May and his co-workers is partic-
ularly relevant.*^ Patients were randomly assigned to receive either med-

80. The incidence of refusals varies greatly from institution to institution, ranging

from one to twenty-five F>ercent. Much depends on the type and timing of the review mandated
because many patients refuse to cooperate initially, but then relent as they achieve a level
of comfort and stability within the institution. A patient does not become an official refuser
until the review machinery is activated. See Bloom, An Empirical View, supra note 41; Hoge,
Appelbaum, Lawlor, Beck, Litman, Greer, Crutheil, & Kaplan, A Prospective, Multicenter
Study of Patients' Refusal of Antipsychotic Medication, 47 Arch. Gen. Psychiatry 949

(1990); Hoge, Right to Refuse, supra note 70; Veliz & James, supra note 70.
81. See supra notes 70-80.

82. The results stemming from the studies of the Jamison decree and Rogers v. Okin

stilt the override averages because of the large number of cases. If, in order to correct for

this, the mean number is used, the proportion of cases in which the patient's refusal is upheld
is still under 10%.

83. See, e.g., Veliz & James, supra note 70, at 64.
84. See Ciccone, Right to Refuse, supra note 41.

85. P. May, supra note 43; May, Psychotherapy Research, supra note 43; May,
Follow-up, supra note 43; May, Predicting, supra note 43; May, Schizophrenia, supra note

43.



1991] RIGHT TO REFUSE TREATMENT 457

ication or no medication. After six months, the group which did not

receive medication was then given medication. May found that those
patients who did not initially receive drugs for the six month period did
substantially worse during the following three to five years, spending

almost twice as much time in the hospital as did the initially medicated
patients.

The study documents the harmful consequences that may occur when
patients do not receive initial medication and treatment is delayed for a

substantial span of time. Not only do patients do much worse during the
initial phase of treatment when they are not receiving drugs, but even

after drugs are taken, there is a long-term negative carryover effect.

Although the judicial review process falls well short of six months, it can

nevertheless be quite lengthy (e.g., four-plus months in the Massachusetts

study), and it is quite possible that such protracted treatment delays produce

negative long-term consequences. The data collected by May suggest that
once deterioration occurs, it may be irreversible. May's results are reliable.
Patients were randomly assigned to the different samples so the groups

were strictly comparable. Evaluations of outcome were done "blind" and

are thus objective and unbiased.

3. Institutional Costs and Harms.—As well as doing harm to indi-
viduals, prohibition or delay of treatment also has undesirable consequences

for institutions. In an early review of the actual and potential effects of

the right to refuse treatment. Stone considered the experience at Boston

State Hospital, which, at the time, was under a temporary federal district

court order prohibiting physicians from forcibly medicating patients except

in extreme emergencies.^^ He quoted from the Massachusetts Psychiatric
Society's amicus brief in this initial phase of the Rogers v. Okin litigation:

One wing has been destroyed by fire, set by a patient. One female
patient attempted to burn a staff member, to choke a patient,

and to strangle herself with a ripped dress. ... A schizophrenic
male patient who has refused medication since the grant of the
temporary restraining order has had sexual intercourse with at

least three different patients who are either retarded or are severely
and chronically regressed . . . [and has] grabbed and threatened

two female staff members.^^

A later article on the same phase of the Boston hospital case provided
additional information regarding the two wards most directly affected by

86. Stone, Recent Mental Health Litigation: A Critical Perspective, 134 Am. J. Psy-
chiatry 273 (1977) (discussing the implicit analogies the legal system has made between

psychiatrists and agents of the criminal justice system and their effects on mental health care).

87. Id. at 278.



458 INDIANA LAW REVIEW [Vol. 25:429

the Rogers TRO, which by then had been transformed into a permanent
injunction.** Hospital witnesses specifically identified 145 patients who had
suffered adverse consequences from their decision to refuse medication

treatment during the two-plus year period from May 1975 to August 1977:
eighty-nine whose mental condition deteriorated and fifty-six whose hos-

pitalization had to be prolonged. The time spans during which patients

had to remain untreated were long, ranging from two to as much as
eleven months. The number of patients transferred to other hospitals
because they were too disturbed to be cared for at Boston State went

up by 370<^o. In addition, patients known to be likely to refuse treatment
were denied admission. Despite the transfers and denials of admission,

the rate of seclusion was up dramatically—in some months up to three
times the monthly rates prior to the order.*^ The level of violence also
increased markedly. One patient with no history of violence deteriorated
to such an extent that he attacked an attendant, fracturing one of the

latter's facial bones, which required surgery. He later attacked another
attendant, injuring the man's cervical spine. This attendant did not return

to work. The patient suffered from severe guilt from these actions. Staff
turnover doubled as residents quit their jobs in unprecedented numbers.

Another report on the Boston State Hospital situation noted that

among patients refusing treatment, many deteriorated to a point where
they became assaultive or self-destructive.^ Nevertheless, physicians at-

tempting to force treatment on a psychotic young woman for physical
deterioration when she refused food on pseudo-religious grounds were
found in contempt of court.^' Of the fourteen patients who were denied
admission during this period because of indications they would not co-

operate with treatment, one subsequently stole a truck and was shot to

death by police pursuing him. Yet another article attributes a suicide to

the refusal to be treated:

[T]he one suicide in our series of patients who refused medication
occurred in a paranoid man from a high achieving family. . . .
He spent an unconscionably long time in a severe and florid

88. See Schultz, The Boston State Hospital Case: A Conflict of Civil Liberties and
True Liberalism, 139 Am. J. Psychiatry 183 (1982).

89. Another study conducted at the Mendota Forensic Center, a maximum security
facility in Madison, Wisconsin, reported a six-fold jump in the total number of seclusion

hours following the introduction of a right-to-refuse protocol. Miller, Bernstein, Van Rybroek,

& Maier, The Impact of the Right to Refuse Treatment in a Forensic Patient Population:
Six-Month Review, 17 Bull. Am. Acad. Psychiatry & L. 107 (1989).

90. Gill, Side Effects of a Right to Refuse Treatment Lawsuit: The Boston State

Hospital Experience, in Refusing Treatment in Mental Health Instftutions—Values in
Conflict 81-87 (A. Doudera & J. Swazey eds. 1982).

91. Id. at 86.



1991] RIGHT TO REFUSE TREATMENT 459

regression because of delays in judicial and departmental proce-

dures in obtaining guardianship. The clinicians involved believed

that this prolonged the state of being . . . "really crazy/* and

. . . played a role in the patient's suicide.^

Gutheil and Mills noted that when clinical and legal representatives
met to redesign the Massachusetts Department of Mental Health's reg-

ulations on involuntary medication following Rogers, the lawyers insisted

that each incident of violence and the attempt to control it constituted

an independent legal event.'' This "one-punch-one-shot" approach to

treatment means that a violent patient must assault someone before he

can be given an injection. The concept of continually monitored treatment

and control via medications responsive to the patient's specific (and var-

iable) condition was entirely foreign to these "patients' advocates."

The report by Bloom on refusals of treatment in Oregon's civil hospital
recorded 147 episodes of seclusion and thirty-two instances of emergency

medication for the twelve patients who refused treatment after admission.^
The high numbers of seclusions and emergency medications are in part

because patients were untreated for an average time span of seventy-seven

days (while the override decision was being processed), but they remain

disturbing.

There is now empirical evidence on what happens to patients when
they do not receive proper medication in a timely fashion. The legal

profession should take this evidence into account. Lawyers who advocate
for the right to refuse treatment must recognize the real potential for

psychosis-related harm to individual patients: suicide, accidental death, or
other harm to the patient resulting from psychotic activity that could have
been prevented. The patient was committed because of the danger to

himself and others. Without treatment, this risk continues and even es-

calates. The psychiatric hospital can prevent some instances of self-harm,

but not all. It is difficult to prevent suicide by a determined individual.

Psychotic self-harm, due to the wide variety of bizarre ideas patients can

have, is unpredictable. The same is true of harm to others. Even a well-
run hospital can only reduce the chance that a patient attacks another

patient or a staff member. The hospital cannot always prevent such attacks,
and in attempting to reduce the threat to others, the treatment and liberty

interests of all patients suffer. It is an empirical fact that without med-

92. Applebaum & Gutheil, The Boston State Hospital Case: "Involuntary Mind Con-
trol," the Constitution, and the "Right to Rot,'* 137 Am. J. Psychiatry 720, 723 0980).

93. Gutheil & Mills, Legal Conceptualizations, Legal Fictions, and the Manipulation
of Reality: Conflict Between Models of Decision Making in Psychiatry and Law, 10 Bull.

Am. Acad. Psychmtry & L. 17, 19 0982).
94. See Bloom, An Empirical View, supra note 41, at 323.



460 INDIANA LAW REVIEW [Vol. 25:429

ication, the incidence of serious harm due to patients' violence goes up
significantly. This might have been predicted from the observation that

the incidence of violence decreased markedly when antipsychotic drugs
first were used.^^

4. Financial Costs.—The financial cost impHcations of the right to
refuse treatment are substantial. Hospitalization fees range from $100 to

$800 per day. Assuming a hospital cost of about $400 per day and four

and one-half months of hospitalization, the cost is $50,000. For a state

hospital, the legislature sets the budget, and if the cost of caring for

certain patients is significantly increased, the quality of care to other

patients proportionately decreases. For insured patients, the cost is passed

on to the insurance carrier and hence, is eventually borne by all those

paying premiums. Additionally, the costs of the legal proceedings should

be considered, though these are small on a per case basis compared to

the cost of the unnecessary hospitalization. For a medication refuser, the

cost of hospitalization will be many times the cost of treating the acute
episode.

Perr did a cost-accounting for two private hospital patients who refused
treatment.^ One had to wait three weeks, the other more than two months,
for the first judicial hearing. Excluding the court costs, the price of the

patient's refusals in extra institutional care and legal fees was $13,000 for

the first and $19,000 for the second patient.^ None of this, of course,
takes into account the **hidden" costs of managing a deteriorating patient

and the attendant effects on the safety and quality of care within the

institution generally.

In the aggregate, the financial costs of the review proceedings them-

selves are substantial. The judicial process is by far the more expensive

of the two. One study estimated that the Rogers hearings in Massachusetts

95. Schultz reports that the seclusion rate at Boston State Hospital dropped by 90%
in 1955 following the introduction of psychotropic medications. Schultz, supra note 88, at

185. The law allows the forcible use of psychotropic drugs in emergencies, but defines

emergency strictly. In many institutions, medication can be given only after a serious assault
has occurred. Antipsychotics require time to become effective. The rate of symptom im-

provement is about 50% in the first 10 days, but symptoms persist even at six weeks, and
improvement usually continues during this time and for several weeks beyond. Psychiatrists

cannot predict the exact minute that a violent action will take place. Even if they could,

medications do not have the desired effect in time. More to the point, if psychiatrists could

predict the exact minute a violent attack will take place, they would place the patient in

seclusion or a restraint, rather than medicate him.

96. See Perr, Effect of the Rennie Decision on Private Hospitalization in New Jersey:
Two Case Reports, 138 Am. J. Psychiatry 774 (1981) [hereinafter Perr, Rennie Decision].
For further discussion, see Perr, The Rennie Philosophy and Treatment in the Private Sector,

in Refusing Treatment est Mental Health Instftutions—Values in Conflict 81-87 (A.
Doudera & J. Swazey, eds. 1982).

97. Perr, Rennie Decision, supra note 96, at 776-77.



1991] RIGHT TO REFUSE TREATMENT 461

cost the state upwards of one millon dollars per year in payments to

judges, lawyers, and medical witnesses—a figure supported by the fact
that the Massachusetts legislature in 1986 designated a supplemental ap-

propriation of $826,000 for this purpose.^ Clinical review procedures,

though less costly, also take "real money." The Jamison-Farabee automatic

review procedures have been estimated to have cost the state of California

$300,000 per year during their implementation at Napa State Hospital.^
Had the model been imposed on all of the state's facilities, the costs
would have been in excess of one million dollars. The Anoka State Hospital
TRP procedures (depicted as less formal than the California clinical review)
are estimated to have cost the state of Minnesota $30,000 annually. '°^

Contributing to the relative modesty of this sum is the fact that Anoka
State is a relatively small (236-bed) facility.

E, The True Risk of Side Effects

Legal decisions and law review articles are filled with long lists of

the side effects of antipsychotic drugs, as if all patients had all side effects

to the most severe degree. It is difficult to detect or gauge the side effects

of these drugs in the first weeks or months of treatment, but they are

rarely serious or permanent. Almost all patients will experience mild side

effects such as dry mouth or mild tremor. These effects are transitory
and disappear completely when the medication is discontinued. On the
average, the initial side effects of antipsychotic drugs are no worse than

those of the medications patients receive for serious physical diseases. It

is difficult to quantify discomfort, but the general medical judgment is

that the side effects of antipsychotic drugs are on the level of those

resulting from hypertension medication and are certainly far less severe

than those attendant to the use of such medications as anticancer drugs

or those administered in conjunction with transplant surgery. '^^

There is a risk in everything we do in life, but it is a scare tactic

to suggest that because a serious event can occur, it is a typical outcome.

For example, one of the most dangerous things almost all of us do is

to drive or ride in an automobile. One can be killed or seriously injured
in an automobile accident, yet that does not mean that every time we
drive to work there is a high probability that we will be killed or seriously
injured.

98. Hoge, Right to Refuse, supray note 70, at 168.

99. Id. at 186.

100. Id.

101. Virtually all patients receiving psychotropic drugs will experience some side effects,

but most are mild. Even for the stronger reactions, it is important to put them in a general

medical perspective.



462 INDIANA LAW REVIEW [Vol. 25:429

The right-to-refuse treatment movement has claimed that antipsychotic
drugs cause cancer and heart attacks. They do not cause cancer, and it

is distressing to note that even judicial opinions have repeated this wholly

unfounded charge and thereby given it credibility. '^^ A controversy in the
medical literature exists as to whether antipsychotic drugs are associated

with sudden death (presumably due to heart failure). Every year, some

600,000 persons in the United States die suddenly; therefore, everyone is

at risk for sudden death. The American Psychiatric Association has re-

viewed the case histories of patients on psychotropic drugs who have died
suddenly and has concluded that this is probably coincidence. Currently,

there is no evidence from epidemiologic studies that psychotropic drugs

cause sudden death. Indeed, what evidence there is suggests that they do

not. '03

There is no doubt that the dystonic reactions (a type of muscle spasm)

that some patients experience are alarming and painful, but it would be

extremely unusual for them to be medically dangerous,*^ and they can

be effectively treated with antiparkinsonian medication. Another side effect

is akathesia, which is a feeling of motor restlessness. In some cases it is

just a mild sensation, but it may be moderate or pronounced. Nevertheless,
to suggest that severe cases are typical and will invariably occur is pure

demagoguery. There are now a number of medications which quickly and
effectively treat dystonia and akathesia. '°^ Moreover, both dystonic reac-

tions and akathesia will simply go away when the drug is stopped.
Patients can also have a side effect known as neuroleptic malignant

syndrome which is characterized by a sudden steep elevation in temperature

102. See Davis v. Hubbard, 506 F. Supp. 915, 928 (N.D. Ohio 1980); Rennie v. Klein,

476 F. Supp. 1294, 1298 (D.N.J. 1978), modified, 653 F.2d 836 (3rd Cir. 1987), vacated,

458 U.S. 1119 (1982).

103. The FDA states that sudden death occurs, but that no causal association has been
established. The American Psychiatric Association Task Force on the matter reached a similar

conclusion. See G. Simpson, J. Davis, J. Jefferson, & J. Perez-Cruet, Sudden Death in
Psychiatric Patients: The Role of Neuroleptic Drugs (1988).

104. We do not argue that side effects such as dystonia and akathesia are trivial.
Indeed, the physician author of this Article has done research on these reactions because it

is important for physiciatrists to understand their mechanics and to develop better preventive

and treatment methods. It is a scare tactic to suggest, however, that these reactions are

medically dangerous. The legal literature is filled with dishonest assertions. In addition to

overstating the seriousness and incidence of certain side effects, it also lists conditions that

simply have no causal relation to antipsychotics whatsoever {e.g., cancer) or others where the

cause and effect are unknown {e.g., sudden death). In their treatment of TD, the legal writings

succumb to overstating: (1) its prevalence; (2) its seriousness (many cases are mild and

reversible); and (3) its relevance to the typical refuser, a patient with an acute psychotic

episode who needs to be medicated for a brief period during which the risk of contracting

TD is virtually nil.
105. Adler, Angrist, Reiter, & Rotrosen. Neuroleptic-Induced Akathisia: A Review, 97

PSYCHOPHARMACOLOGY 1 (1989).



19911 RIGHT TO REFUSE TREATMENT 463

which can lead to death. This effect is rare and while alarming, is

contextually not out of line. The pubhc does not appreciate the risks of

some widely used drugs in general medicine. For example, penicillin allergy

can lead to death, and aspirin can lead to fatal gaistrointestinal hemorrhage.

Conversely, if antipsychotic drugs are not used, there is a risk of developing

lethal catatonia. Rather than increase, the risk of death in acutely psychotic

patients is substantially reduced by the use of antipsychotic drugs. Medical

science has made the treatment of mentally ill patients safer. Before
antipsychotic drugs, electroconvulsive shock treatment was used for many
psychotic emergencies. Before electroconvulsive shock was discovered, there

was an alarmingly high incidence of death in patients with psychosis from

lethal catatonia, suicide, accidents, infection, or other harms which may
occur in chronically psychotic patients who are unable to care for them-
selves.

It is an unfortunate fact that long-term use of antipsychotics can

cause a serious and sometimes irreversible neurological condition called

tardive dyskinesia. Approximately twenty percent of patients using these

drugs for a period in excess of six to seven years develop these symptoms,

but these symptoms are severe in a much smaller percentage.''^ The vast
majority of patients who receive medication in a hospital are discharged
in a few weeks. It is extremely unusual for tardive dyskinesia to develop

in the first six months of treatment; so for the typical patient, medication

does not raise an appreciable risk of tardive dyskinesia. In the patient

who has not previously received neuroleptics, it would be practically
impossible to develop true TD within a few weeks of treatment. For the
patient who has taken neuroleptics for years, an extra few weeks of
treatment would in theory increase the risk of TD, but the increase of
risk would be a fraction of one percent.

Those who attack psychotropic medication attack psychiatry for not
being sensitive to the problem of TD. This is a justified criticism to the

extent that organized psychiatry, the National Institute of Mental Health,

and other support agencies were slow to recognize the risk of TD and
to fund research for preventive measures. A substantial amount of research

106. See R. Baldessarim, J, Cole, J. Davis, G. Simpson, & D. Tarsy, Task Force
Report 18: Tardive Dyskinesia (1980). The new American Psychiatric Association Task
Force on Tardive Dyskinesia, of which the physician author is a member, will attempt to

quantify this. At a recent Task Force meeting, it was the opinion of all the members that

the great majority of tardive dyskinesia cases are mild, but there is no doubt that some cases

are serious. Among patients with serious cases of TD there are some whose symptoms
inexplicably disappear despite continued neuroleptic treatment. For others, the TD will persist
even after the medication is discontinued. Although few, these permanent cases are the most

alarming. See J.M. YJlSE, Dyskinesia: A Task Force Report of the American Psychiatric
Association (1991).



464 INDIANA LAW REVIEW [Vol. 25:429

is in progress now.'^"' There is a minority of patients who remain continually
hospitalized in the long-term wards of state hospitals and refuse any

psychotic medication in fear of TD. On occasion, there is court ordered
long-term maintenance drug treatment with antipsychotic medication for

outpatients. ^°^ In such situations, the decision whether to override an

asserted right to refuse treatment should consider the risk of TD and
should balance that risk against the benefits of continuing maintenance

medication. We emphasize, however, that almost all patients with an acute
episode will be discharged within weeks. For these patients, the risk of

TD is essentially absent. Consideration of the risk of TD is important
for the few patients who are in long-term institutional treatment and for
outpatients for whom the court orders long-term medication. The trouble
with much of the legal literature is that it has overlooked the fact that
the risk/benefit ratio for short-term drug treatment is altogether different

from its long-term administration. '^^

Insofar as failure to adequately treat an acute episode results in a

poor outcome and more chronic medication is given, the risk of tardive

dyskinesia goes up. Additionally, during the time patients remain untreated

while their refusal is being considered by the court or clinical reviewer,

many will markedly deteriorate. When an emergency develops, it may be
necessary to give patients vigorous, high dosage medication to control the

emergency. There is no doubt that neuroleptic msilignant syndrome, the

most serious of the possible side effects, is more likely to occur with the

rapid escalation of dose.''°

107. See Davis, Treatment of Schizophrenia, 4 Current Opinion in Psychiatry 28

(1991); Davis & Janicak, Psychoses, 4 Current Opinion in Psychiatry 1 (1991); Davis,
Psychosis: Editorial Overview, 3 Current Opinion in Psychiatry 1 (1990); Davis, Drug

Treatment of Schizophrenia, 3 Current Opinion in Psychiatry 19 (1990). See also Woeraer,

The Prevalence of Tardive Dyskinesia, 11 J. Clinical Pharmacology 34 (1991).

108. See Bonnie, Mental Disability Law Crosses a New Frontier: A Review of Recent
Developments, 6 Dev. Mental Health L. 22 (1986) (discussing legal basis for compulsory
outpatient treatment).

109. The FDA recently approved a new antipsychotic drug. Clozapine, which is ap-
parently risk free for TD and various other effects associated with currently used antipsychotics.
However, it has a number of unique risks of its own. See Blackburn, New Directions in
Mental Health Advocacy? Clozapine and the Right of Medical Self-Determination, 14 Mental

& Physical Disability L. Rep. 453, 457 (1990).
1 10. In cases when the wrong medication is given, judicial review is still not the answer.

The judge does not have the training to make the correct diagnosis or the proper medication

decision. The notion that peer review must take place in the context of an adversarial trial,

with the doctors functioning as "expert witnesses," makes little sense from either a theoretical

or a practical perspective. For the assertion that Neuroleptic Malignant Syndrome is associated

with a rapid increase in dose, see Koek, Pope, Cohen, McEIroy, & Nierenberg, Risk Factors
for Neuroleptic Malignant Syndrome, 46 Arch. Gen. Psychiatry 914 (1989).



1991] RIGHT TO REFUSE TREATMENT 465

F. Restoring The Mind

Some claim that the involuntary administration of treatment violates
the patient's right of free speech. They advance two arguments: (1)
antipsychotic drugs are so sedative or the side effects so severe that they

impair mental functioning and (2) they are mind-altering, making the

person
*

'different" than he is. With the onset of an episode of illness,

the patient's "normal" mental processes change into ones characterized

by loose, rambling, illogical, circumstantial, incoherent, inappropriately

concrete, and bizarre thought and speech patterns. Delusional ideas may
dominate, such as that the government or its particular agencies or per-

sonnel are plotting against the patient, or the patient may have vivid
visual hallucinations or hear voices that command him to perform certain
acts. Evidence from controlled studies shows that antipsychotic drugs

correct these aberrations and restore normal thought.^'* For most of a

person's life, he develops an integrity of personality characterized by his

values, loves and hates, political and philosophic beliefs, religion, interests

and dislikes, interpersonal relationships, and vocations and avocations.

With mental illness, a person develops delusions and hallucinations different

from his normal self and becomes an altered being. It does not make
sense to see drugs as the mind-altering agent.

There have been a number of studies which have measured cognitive

performance before treatment (drug free) and after treatment in schizo-

phrenics. Performance is significantly improved as a consequence of drug

treatment. ^'^ It is true that some of the antipsychotic drugs have sedative

properties, but most are moderately to minimally sedative, and some are

not sedative at all. Additionally, the sedation tends to dissipate in a few

days. Most importantly, psychosis is often associated with a marked

decrement in mental performance. Although the sedative properties of

some of these drugs may produce a mild and transient degree of drowsiness,
this is more than counterbalanced by the fact that antipsychotic properties

correct a serious disturbance of thought; thus, the net effect is that the

patient's cognitive powers are much improved after drug treatment.

111. Hurt, Holzman, & Davis, Thought Disorder: The Measurement of Its Changes,
40 Arch. Gen. Psychiatry 1281 (1983).

112. See Schooler & Goldberg, Performance Tests in a Study of Phenothiazines in
Schizophrenia: Caveats and Conclusions, 24 Psychopharmacologia 81 (1972); Shimkunas,

Gynther, & Smith, Abstracting Ability of Schizophrenics Before and During Phenothiazine
Therapy, 23 Arch. Gen. Psychiatry 79 (1966); Spohn, Lacoursiere, Thompson, & Coyne,
Phenothiazine Effects on Psychological and Psychophysiological Dysfunction in Chronic Schi-

zophrenics, 34 Arch. Gen. Psychiatry, 633 (1977); Wahba, Donlon, & Meadow, Cognitive
Changes in Acute Schizophrenia with Brief Neuroleptic Treatment, 138 Am. J. Psychiatry

1307 (1981).



466 INDIANA LAW REVIEW [Vol. 25:429

G. Normal Use vs. Abuse

Many of the antidrug law review articles discuss at great length the
alleged abuse of drug treatment by psychiatrists. What is the point being
made? Would the legal community be convinced of the argument that
because some lawyers abuse the law or the legal process, we should scrap
the system? Of our many social institutions, are there any that operate
with complete perfection without room for reform? Scrapping the use of
drugs until a judicial hearing four months later is like scrapping the

system. We must distinguish between the customary practice of medicine
and bad medicine. The right-to-refuse "reform*' for involuntary patients

is aimed only at bad medicine and penalizes customary medicine and its

patients and providers.

There are clear standards for the use of antipsychotic medication. It

is unacceptable practice for psychiatrists: (1) to use medication as a

punishment; (2) to use drugs to heavily sedate mental patients (although

there are rare exceptions to this when temporary sedation is desirable);

(3) to use excessively high doses of these medications; or (4) to allow

nonmedical personnel to prescribe these medications. There is extensive

literature on the proper use of antipsychotic drugs that can be found in

various medical articles, as well as in standard medical and psychiatric

textbooks, the Physician's Desk Reference, and the American Medical

Association's Drug Evaluation monographs.''^ Misuse of drugs is an anath-

ema to the psychiatric profession.
A conceptionally distinct question is whether drugs are, in fact, abused

in hospitals, particularly in the state hospitals which are underfunded,

where there is a shortage of just about everything and where major

resources are squandered in performing meaningless rituals to satisfy the

multiple layers of red tape entangling the state hospital system. We doubt
that the quality of medical practice in the state hospital system is as high

as that in the private sector. Yet, the idea that abusive medicine is the

norm is like saying that the public defender or the public prosecutorial
system is routinely abusive. Litigation has brought to light individual

instances of medical error and abuse in both public and private hospitals.

Occasionally, in the past, major systemic shortcomings have also been

demonstrated to exist. This is to the good. However, the inference made

113. The Physician's Desk Reference (PDR) is published yearly by the Medical Economy
Press and consists of the "package inserts" of ethical medications. This document represents

the evaluations of both medical and nonmedical professionals, the pharmaceutical industry,

and the FDA; therefore, its exact content may reflect a variety of concerns other than medical
science. Nevertheless, it is a consensus document, approved by the FDA. No one source of
information (medical texts or the data from scientific studies which shape medical opinion,

PDR, AMA Drug Evaluation Monographs, or their equivalents in other countries) represents
a single standard, biJt they produce evidence of established medical practice norms.



1991] RIGHT TO REFUSE TREATMENT 467

by antipsychiatric legal advocates (and in some cases accepted by the

courts) that such cases represent normal institutional psychiatry is supported

only by the inherently biased artifice of adversarial thinking and pleading.

It bears little relation to the contemporary institutional reality or to

psychiatry as it is practiced today even under circumstances of resource

scarcity and bureaucratic inefficiency.

Ironically, the right-to-refuse movement accuses psychiatry of using

drugs as punishment, yet in its one-punch-one-injection approach it in

essence favors punitive medicine over a consistent and effective effort to

treat the patients. Alternatively, the right-to-refuse treatment movement

accuses psychiatrists of using drugs as sedatives, but in restricting the use

of antipsychotics to a far-belated point after judicial review, it leaves

sedatives as the only medication of the moment for psychosis. Sedatives
have no antipsychotic effects. This movement would have the law produce
what it criticizes psychiatry for.'^'*

III. The Case for an Appropriate Paternalism:
The Medical Model

The patient's advocate argues that the patient should have as many
rights as possible, perhaps even the right to make a rational suicide
decision. Legal thought that is uninformed by psychiatric reality generally

assumes that the patient's circumstances and the degree of mental illness

are constant. This is not the case. The patient may agree to the medication
for weeks, but one day suddenly refuse, "^ or he may refuse initially and
then cooperate. Rarely are these changes of heart based on rational reasons.

Most refusals result from delusional ideas. The constant is that treatment

will restore the patient's sanity. On which side should the patient's lawyer
come down—the insane self or the sane self?

What if the patient who is delusional and depressed, despite a history
of success, decides he has been a failure and it is time to end it all?

What if the patient—nonpsychotic but profoundly depressed—who ob-
jectively has many things to live for, feels he is a failure and decides on
suicide? What if the patient has had a change of personality due to mental
illness and decides on some self-destructive course short of suicide, such

as not agreeing to effective treatment, and the result is not suicide but

life-long hospitalization? In each of these cases, had the patient not been

mentally ill, he would have realized that he had really been quite successful

in the things he previously did in his life and that the outlook was good.

In a normal state, he would not want to commit suicide or remain in

the hospital for the rest of his life. His present desires are based on his

114. See Gutheil & Mills, supra note 93, at 19.
115. See. e.g., Washington v. Harper. 494 U.S. 210 (1990).



468 INDIANA LAW REVIEW [Vol. 25:429

mental illness and do not reflect any of the desires of his entire previous

life, except for the two week episode of mental illness. Which side should

the lawyer represent, the life-long self or the momentarily altered self?

Medicine has a history of being paternalistic. As the technical experts,
doctors have historically done what they conceive is best for the patient,

without worrying about the patient's consent or understanding. Patients

are beginning to question doctors' paternalism and want to make major
decisions about their own lives, based on an understanding of their options,
and not to abrogate choice by default. We feel that this is clearly desirable
and support it in all but a few exceptional circumstances. There are Good
Samaritan or paramedic laws which make it possible for a passerby or
paramedic to render first aid to the unconscious victim of a cardiac arrest

or accident without fear of liability.'*^ Doctors can render emergency

treatment to an unconscious patient brought to the emergency room. There

are procedures to allow physicians to take care of young children without

their parents' permission or to care for clinically obtunded adults or the

aged with next-of-kin permission. We feel that the law's conceptualization
of the right to mental health treatment and to refuse antipsychotic med-

ication should be analogized to these situations.

Perhaps the best analogy is to the partially unconscious medical patient

who, although not completely unconscious, is so obtunded as to lose

essentially all rational powers of reasoning. Normally, the emergency room
staff makes the determination that the patient is essentially unconscious

and renders whatever acute medical treatment is needed to restore the

patient's health. There is no judge in the emergency room who passes
judgment on the competency of the patient or the decision of the emergency

staff. By contrast, a mentally ill person is better protected. He is committed
for treatment on a court order after a court hearing. Once that commitment

decision is made, however, we should relinquish the fiction that the patient

is "fully conscious" or that another **emergency" must develop before

he can be treated. We should not turn the desire to protect into over-
protection that is harmful. A law that obstructs the right of mentally ill
patients to receive effective treatment is a form of discrimination. An
indiscriminate upholding of the right to refuse treatment forces the psy-

chiatrist to commit malpractice."''

116. See, e.g., III. Rev. Stat. ch. 70, para. 61 (1989) (providing immunity from

liability for acts of ordinary negligence to police officers and firemen giving emergency assistance

to accident victims).

117. It has been suggested that a state physician's decision to honor a clearly incompetent,

confined person's refusal to be treated could constitute the kind of "deliberate indifference

to serious medical need" that the Constitution prohibits. See Estelle v. Gamble, 429 U.S. 97

(1976); People v. Thomas, 217 Cal. App. 3d 1034, 266 Cal. Rptr. 295 (1990).



1991] RIGHT TO REFUSE TREATMENT 469

IV. Implementing an Appropriate Paternalism:
A Proposal for Legal Reform

Involuntarily committed patients, in most states, are presumed com-

petent unless or until declared incompetent in a subsequent court proceeding

separate from the commitment proceeding. This two-stage process re-

quirement is based on a legal fiction because the patients must have been

found to be sufficiently lacking in competence with respect to their

treatment needs to be committed. Empirically, it has been found that

hearings on the right-to-refuse issue (in **medical court") focus on the

appropriateness of treatment, rather than the patients' competency."^ The

empirical reality thus recognizes the direct connection between the com-

mitment status and the right to treatment or the right to refuse treatment.

The act of commitment to a hospital takes away freedom and can only

be based on the fact that these patients suffer from mental illness to such

an extent that they will not voluntarily seek appropriate treatment either

as outpatients or in a hospital on a voluntary basis. The court in overriding

the patient's right to freedom assumes, indeed decides, the patient's in-

competence as to treatment decisions. If it were otherwise, the commitment

statutes would be merely statutes for preventive detention.

Before there was an effective treatment for the severe mental illnesses,

patients were hospitalized mainly for shelter and custody. The purpose

was not punishment. Rather, it was recognized that mental illness was

indeed an illness and that it was more humane to care for the mentally
ill in an asylum than to put them in prison or leave them **free" to fend

for themselves and suffer hunger, indignity, or even death. Now that
there are effective treatments, psychiatrists view the purpose of hospital-

ization as treatment, not long-term custodial care. Lawyers, especially

those most concerned about patients' interests, should do the same.

The legal analysis should not separate the purpose of involuntary

commitment from the right to treatment or the right to refuse treatment.

Although state statutes vary in the details, in almost all jurisdictions the

explicit criteria for involuntary commitment include the following:

(A) presence of a severe mental disease

(B) which causes the patient to:

(1) be unable to care for himself

(2) be likely to do harm to himself

(3) be likely to do harm to others.

Implicit in all the statutes, in the commitment process itself, is that

the individual proposed for commitment is unwilling to accept treatment

118. See Applebaum, supra note 71, at 416.



470 INDIANA LAW REVIEW [Vol. 25:429

voluntarily, either on an inpatient or outpatient basis. Once the court

finds the statutory criteria met and orders commitment, it in effect rules

that the patient was not merely unwilling, but unable to decide for himself.

He was incompetent to make the treatment decision and, therefore, the
court exercised its authority to override his objection.

What is merely implicit in the statutes of most states has in the last
ten years been made explicit in six jurisdictions. Utah has led the way.
Its commitment statute includes among its criteria that the court must
find that "the patient lacks the ability to engage in a rational decision-

making process regarding the acceptance of mental treatment as dem-

onstrated by evidence of inability to weigh the possible costs and benefits

of treatment.""^ The statutes of Delaware, Iowa, Kansas, Michigan, and

South Carolina contain similar language. '^° The legislatures of these states

have drawn the logical conclusion inherent in commitment: the individual's

mental state must be such that he cannot make the decision for treatment.
His incompetency is, and must be found, simultaneous with his "com-

mittabihty.'* In addition, the incompetency finding is not undone by the

patient's exit from the courtroom door; it extends to his entry into the

hospital as a patient committed to the charges of the treating doctors.

There is no logic, and should be no legal requirement, to engage in a

second legal contest on the same point a few short hours or days after

the commitment hearing. '^^

We believe this is the right approach. We do not offer a '^model"
statute here—only the general principle. The model is available in any of
the state statutes listed above, and we urge individual states that presently
do not have such provisions to enact them with whatever detail and

refinement they see fit. The approach saves valuable time. It will save

patients and institutions from potentially incalculable harm. And the patient
remains fully protected from a legal standpoint. His treatment rights and

needs are fully addressed in the judicial hearing. The approach can even

augment protection, as the state may require the hospital to make explicit
to the court its treatment and medication plans for the patient. '^^

119. Utah Code Ann. § 62A-12-234(c) (1991).
120. Del. Code Ann. tit. 16, § 5001 (1990); Iowa Code Ann. § 229.1(2) (West 1989);

Kan. Stat. Ann. § 59-2917 (1989); Mich. Comp. Laws § 330.1401(c) (1991); S.C. Code
Ann. § 44-17-580 (Law. Co-op. 1991).

121. See A.E. & R.R. v. Mitchell, 5 Mental Disability L. Rep. 154 (D. Utah, June
16, 1980). The statutes of almost all states permit involuntary commitment only for definite,

relatively short periods, bounded by mandatory judicial review. This statutory pattern reduces

even further the functional necessity of separate "treatment trials" based on the right to

refuse. See generally S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and
THE Law 21-176 (1985).

122. See. e.g.. Me. Rev. Stat. Ann. tit. 34-B, § 3864(5)(F) (1989).



1991] RIGHT TO REFUSE TREATMENT 471

Thus protected at the point of entering the hospital, both as to his

need for and right to treatment, how can the patient be safeguarded
subsequently? Again, we will deal in broad strokes, leaving the details
for the lawmakers of individual states. First, we propose that the patient's
course of treatment be subject to periodic medical-administrative review

initiated by the hospital. This proposal presents nothing new, as such

review is already mandated by law or administrative regulation in the

vast majority of states and state institutions. Additionally, we propose
the formalization of a patient-initiated review mechanism so that the

patient can articulate his questions and concerns about the course of

treatment.'" The medical-administrative model should apply to this review

opportunity as well, and it should also be fixedly periodic, or at least

limited in the number of requests permitted over a given span of time,

to prevent its exploitation by the chronically complaining patient (we

assume that his opposite, the reticent compiler who, without a formally

granted opportunity to state his case, might never do so, is adequately

protected by the state-initiated procedure). Informally, of course, patients

are always free to object, discuss, and air complaints about how they
are treated at the institution, subject only to the availability and patience

of the hospital staff for such discussions. By the same token, members
of the treatment staff remain at liberty to explain, give assurances about,

and involve patients in treatment decisions, all the way to obtaining de

facto consent.

The basic principle animating these proposals is that the medical

decision model shall apply throughout. The essence of the procedures

recommended is that they are administrative and nonadversarial; quick if

not necessarily easy. There will be no treatment interruptions or delays

and hence no clinical costs (deteriorating patients) or institutional harms

(deteriorating hospitals) such as are associated with the legal model. There

shall be no judicial review of treatment decisions based on a legal right

to refuse. For cases of psychiatric abuse, there are other legal doctrines

available that do not carry the pervasive, negative weight of the right-

to-refuse concept—malpractice being a prominent one. In the isolated case

123. We mean real "review" here, not the opportunity for a clinical second-guess of
the commitment order that would prohibit treatment to even begin (as in the Oregon and

California models). Treatment can be initiated upon hospitalization on the strength of the

commitment order, based on whatever treatment decision protocol exists at the institution.

The precise reviewing mechanisms and procedures can be modeled on available TRP's such

as those prescribed by departmental or institutional regulation (or "policy") in effect in

various jurisdictions. See, e.g., Washington v. Harper, 494 U.S. 210 (1990); United States v.

Charters, 863 F.2d 302 (4th Cir. 1988). There are, of course, costs involved in implementing

such clinical review, but they are worth bearing if the procedure is appropriately targeted

and limited.



472 INDIANA LAW REVIEW [Vol. 25:429

when the conscientious legal advocate sees a need to force a change in
the course of treatment over the judgment of the medical services provider

to legally compel more appropriate or less intrusive treatment, it can be

done on the basis of available, more positive concepts than the right to

refuse. The right-to-treatment doctrine and the least restrictive alternative

concept—properly applied with concern for the patient's medical and
personal interests, as opposed to just his technical legal rights—are mech-
anisms adequate for this purpose.

V. Conclusion: The True Patient's Advocate

Our rejection of the legal separation between involuntary commitment

and competency and thus of the involuntary patient's right to refuse

treatment may be viewed as an attempt to turn back the clock. There
will be those who will charge that we advocate a regression in the law.
So be it. Our comfort with this proposal lies in the conviction that not
all that passes (or has passed) for progress is truly progress. Thus not

all "regress" is bad. We believe that turning back the legal clock on this
particular matter comports with both the patient's and society's best

interest, not to mention common sense. *^

We feel the patient has a right to receive treatment in order to regain
both health and "competency" and that this right needs to be balanced

against any right to refuse treatment. One cannot separate involuntary
hospitalization from involuntary treatment. It is like having one court

decide to take a patient to the operating room and give anesthesia, and
then having another court decide whether to operate.

Consideration by legal practitioners of the consequences of the patient's

right to refuse treatment is essential for truly adequate representation of

the client. The total picture—the patient's total interests, not just his legal
entitlements—must be seen. Routine judicial review of treatment decisions

is both conceptually inappropriate and practically wasteful of precious

time. Patients who receive treatment early on usually recover in a few
weeks and can be discharged with freedom fully restored. Those who do
not receive treatment may have the dubious satisfaction of seeing their
right to refuse treatment held intact, but it comes at a cost of the loss

of all other liberties as they stagnate or deteriorate as inpatients, indefinitely

or in some cases, permanently. Given no prospect or requirement for

speedy judicial review, the treated patient will be recovered and home
before the refuser even has his day in court. The untreated patient remains

124. One may be tempted to say "communitarian" sense, in deference to the newly
coined term for the hardly new idea that excessive libertarianism and excessive deference to

special interests, particularly as pleaded by the self-designated representatives of these interests,

often poorly serve the common good or even the true holders of these interests.



1991] RIGHT TO REFUSE TREATMENT 473

committed to the institution. The State protects his right to refuse treatment

but takes away everything else.

The constitutional and other legal justifications for a right to refuse
treatment with antipsychotic medications must be viewed in the context

of the medical consequences to the patient which demonstrably result

from the exercise of that right. Really to do "justice" to the client, the

legal advocate must consider the pertinent medical facts before advising

the client or client's family. To preserve the client's right to refuse
medication, only to have that client permanently deprived of all other

liberties, cannot be in the client's interest and cannot be what he wants.

When the medical professional moves to temporarily abridge a singular
right, so that health and freedom (and all other rights) may be restored
quickly, he is assuredly promoting the patient's welfare. No attorney whose
goal is to represent mentally ill clients to the limit of his professional

ability and ethic can afford to ignore this point. '^^

125. For a harshly judgmental account, written by nonlawyers, of the mental health

bar's prevailing conception of what constitutes competent and ethical service of its clientele,

and the results attributed to the implementation of this view, see R. Isaac «& V. Armat,

Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally 111
(1990). See also Brakel, 1981 Legal Aid in Mental Hospitals, Am. Bar Found. Res. J. 21

(1981); Brakel, The Role of the Lawyer in the Mental Health Field, 1977 Am. Bar Found.

Res. J. 467 (1977); Galie, An Essay on the Civil Commitment Lawyer: Or How I Learned
to Hate the Adversary System, 6 J. Law & Psycidatry 71 (1978).