The Right to Refuse Mental Health Treatment / Edition 1

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Editorial Reviews

Judith Lynn Failer
My undergraduate students often balk when I suggest that not all U.S. citizens possess the same civil rights. The smarter students point out that the abolition of slavery and ratification of the Fourteenth Amendment ensured equal citizenship for all. The smartest students remind me of Justice HarlanÆs argument in dissent in PLESSY V. FERGUSON, i.e., that "there is no caste here." Although my students are right, they are also wrong. After all, former slaves may have the same rights as those who have never been enslaved, but children may not vote, run for public office, or serve on a jury. Neither may former felons vote, nor naturalized citizens serve as President. The Constitution may forbid castes based on race, but different legal statuses persist for many groups of citizens, including children, felons, and the mentally ill. One way mentally ill personsÆ legal status makes a difference is in the context of health care. While physicians are legally required to secure informed consent before treating adults for non-emergency medical conditions, similar requirements do not always exist for the mentally ill. In the civil context, for example, the state may forcibly hospitalize, medicate, and/or otherwise treat mentally ill persons if their psychiatric disorders make them a danger to themselves or others. In the criminal context, states have assumed even broader authority over mentally ill defendants and convicts. For example, some states have forced medication on mentally ill criminal defendants in order to make them competent to stand trial. Similarly, correctional institutions have imposed psychiatric treatment on death row inmates in order to make them sane enough to execute. Some states have even explored the possibility of castrating or lobotomizing repeat sex offenders in order to quell their urge to re-offend. Although the courts have recently begun to address some of these practices head-on, neither state nor federal legislatures or judiciaries have systematically addressed the content and scope of mentally ill personsÆ right to withhold consent for psychiatric treatment. Unfortunately, failure to recognize this right leaves mentally ill citizens vulnerable to abusive psychiatric care that may violate their dignity as well as lack significant therapeutic value. In an effort to minimize these risks, Bruce Winick has written this lucid and wonderfully systematic analysis of the constitutional and normative basis for a right to refuse mental health treatment. As you might imagine, such an analysis implicates matters of law, psychology, policy, politics, and morality. Despite the fact that he draws on such different bodies of literature, Winick has done a wonderful job of amassing and organizing the many mountains of information that inform the grounds and scope of a right to refuse mental health treatment. The result is an incredibly informative interdisciplinary tome that draws seamlessly on relevant literature in constitutional case law, state and federal statutory codes, administrative law, empirical psychiatric and psychological research, and professional ethical guidelines. For anyone interested in mental health law, whether as a student of law, mental health, or policy, this book would be worth purchasing even if you never got beyond the thorough footnotes and useful summaries of cited research. Fortunately, it also has much more to offer. Winick begins the book by describing the mental health treatments that states try to impose. Assessing them in order of their relative "intrusiveness," he provides the latest information on the efficacy and invasiveness of psychotherapy, behavior therapy, psychotropic medication, electroconvulsive treatment ("shock therapy"), electronic stimulation of the brain, and psychosurgery (including lobotomies and castration). In Part II, he shows how constitutional and other legal standards do, could, and/or should combine to ground a constitutionally protected right to refuse these mental health treatments. Included in this analysis is consideration of how the First AmendmentÆs rights to free speech and religion affect the right to refuse treatment. In addition, he looks at how substantive due process, equal protection, and Eight Amendment guarantees against cruel and unusual punishment include values that might be used to construe such a right to refuse. He also identifies the grounds for the stateÆs interest in imposing these treatments over the patientÆs objections. In the final part of the book, he assesses the rightÆs therapeutic value, and then explores how judicial recognition of the right might affect the practice of mental health law and treatment. In each section, the author moves back and forth between legal, therapeutic, and normative analysis and evidence. The sheer breadth of this approach makes his work extremely helpful for scholars who are familiar with recent developments in mental health law but find it difficult to keep up on mental health research and vice versa. By any measure, this work is a huge success as a compendious compilation of the relevant and useful legal and psychological considerations that ground this important right. Although the book provides the most extensive summary of mental health law I have seen on the topic, it is less impressive when it moves beyond description to more theoretically driven tasks. For example, the chapters that evaluate the constitutional basis for the right shift between different criteria for what counts as a "constitutional" basis. At times, the analysis claims a constitutional basis for the right when the author can demonstrate coherent ways of construing existing constitutional doctrine that make recognition of the right reasonable. At other times, the author claims constitutional grounds for the right even though the Supreme Court has created contradictory doctrine (usually because Winick rightly finds the existing judicial interpretations morally problematic or inconsistent with important constitutional values). At other times, he claims constitutional support for the right because it is consistent with values that are implicit in American constitutional history or because it would make good policy. While it is true that any one of these may provide a legitimate basis for measuring constitutionality, it is confusing when it is not clear whether the author intends to demonstrate that the right is or should be protected. I suspect these confusing shifts between constitutional "is"-es and "ought"-s stem from the bookÆs large scope. The argument aims to be both describe how the law does protect this right as well as delineate how it might not yet but should. When it sets out to do one of these tasks, the analysis is quite successful. For example, the summaries of mental health treatments are first-rate as are the accounts of recent developments in mental health law doctrine. Similarly, when Winick develops the normative therapeutic basis for the right, the arguments are as impressive as you would expect from this leading scholar in mental health law. The dual goal only becomes problematic when it is unclear whether the particular parts of the argument aim to describe or create. This confusion also appears when he develops and applies his innovative standard for the "intrusiveness" of particular mental health treatments. According to Winick, different mental health treatments merit different legal responses depending on how "intrusive" they are, i.e., the extent to which the practice causes pain, creates harmful or irreversible side-effects, invades privacy, limits, degrades, or annoys the patient (p. 25). He recognizes that the same treatment may be more intrusive to some than to others. He also admits that intrusiveness is a "rough weighted sum" of different criteria and that it is an "inherently inexact measure that varies" from person to person (p. 25). Nevertheless, once he develops this normative concept, he then uses it to assess which mental health treatments should be subject to particular levels of judicial scrutiny when states want to impose these them on unwilling patients. Winick may well be right that judges should adopt his newly developed criteria for evaluating the nature of the patientÆs interest in avoiding particular treatments. But because judges have not yet had the opportunity to think of mental health treatment in this very useful way, it is not yet clear whether judges do or should use these criteria when applying existing doctrine. Despite these drawbacks, I predict that this book will become the definitive text on the topic. It is well written, beautifully documented, thoroughly researched, and encyclopedic in both its breadth and depth. It will no doubt become a well-thumbed volume on the bookshelf of many lawyers, jurisprudes, and mental health workers with an interest in mental health law. Even though the book is both very long and rather expensive, it is well worth the investment. I gratefully acknowledge the help of Susan Joffe in preparing this review.
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Product Details

  • ISBN-13: 9781557983695
  • Publisher: American Psychological Association
  • Publication date: 1/28/1997
  • Series: Law and Public Policy Series
  • Edition number: 1
  • Pages: 427
  • Product dimensions: 7.23 (w) x 10.30 (h) x 1.54 (d)

Table of Contents

Ch. 1 Introduction 1
Ch. 2 A Continuum of Intrusiveness 23
Ch. 3 Psychotherapy 29
Ch. 4 Behavior Therapy 41
Ch. 5 Psychotropic Medication 61
Ch. 6 Electroconvulsive Therapy 87
Ch. 7 Electronic Stimulation of the Brain 97
Ch. 8 Psychosurgery 103
Ch. 9 The Constitution and Other Sources of Legal Limitation on Governmentally Imposed Therapy 119
Ch. 10 The First Amendment and Mental Health Treatment: Constitutional Protection Against Interference With Mental Processes 131
Ch. 11 Substantive Due Process and Mental Health Treatment: Constitutional Protection for Bodily Integrity, Mental Privacy, and Individual Autonomy 189
Ch. 12 Treatment as Punishment: Eighth Amendment Limits on Mental Health Interventions 223
Ch. 13 Religion-Based Refusal of Treatment: Constitutional Protection for the Free Exercise of Religion 243
Ch. 14 Are Mental Patients Difference?: Equal Protection Limits on Involuntary Treatment 251
Ch. 15 Scrutinizing the Government's Interest in Involuntary Treatment 269
Ch. 16 Scrutiny of the Means Used to Accomplish Governmental Interests 311
Ch. 17 A Therapeutic Jurisprudence Analysis of the Right to Refuse Mental Health Treatment 327
Ch. 18 Waiver of the Right to Refuse Treatment: The Requirement of Informed Consent 345
Ch. 19 Procedural Due Process and Involuntary Therapy: The Right to a Hearing 371
Ch. 20 The Future of the Right to Refuse Treatment 391
Table of Authority 403
Index 415
About the Author 427
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