Rights and Responsibilities

Rights and Responsibilities

Right to Treatment

Although the US Supreme Court has expounded no national, con-stitutionally based right to treatment, there has been a substantial amount of activity in this area since Birnbaum published “The Right to Treatment’’ in 1960. At the time the article was published, it was common for psychiatric patients to spend decades in hospi-tals, at times involuntarily, while receiving little treatment or only custodial care. The article attempted to upgrade the quality of care in hospitals by creating a hospitalization-treatment quid pro quo. Birnbaum (1965) later criticized state hospital conditions, declar-ing that “Personally, I should like to state that as a doctor I often find it repugnant to use the term ‘patient’ to describe persons in certain mental hospitals’’. He instead argued that “inmate’’ was a better term if no treatment were given. Birnbaum’s landmark ar-ticles generated interest in this key area of mental health policy.

Birnbaum’s quid pro quo rationale was endorsed in Rouse v. Cameron (1966) decided by Judge Bazelon of the District of Columbia Circuit Court. Rouse was found not guilty by reason of in-sanity on a misdemeanor charge and was thereafter civilly committed to St Elizabeth’s Hospital. He petitioned for his release based on the argument that he was not receiving treatment. Judge Bazelon ruled that hospitals must make real efforts to improve patients’ conditions and that lack of resources was not an adequate defense. In his decision he wrote, “The hospital need not show that the treatment will cure or improve him but only that there is a bona fide effort to do so’’.

The case of Wyatt v. Stickney (1972), a class action suit against an Alabama hospital with poor conditions for patients, led to definitions of humane environment, which have been incorporated into a patient’s bill of rights in many states. Chief Judge Johnson wrote for the US District Court, “[Involuntarily committed patients] unquestionably have a constitutional right to receive such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition’’. Although this case was not heard by the US Supreme Court, it did have far-reaching social consequences for institu-tions in that it prompted scrutiny of the services they provide.

It was not until 1982, in the case of Youngberg v. Romeo (1982), that the Court held that a person who is involuntarily con-fined has a right to “minimally adequate training’’. Romeo was a profoundly retarded man who suffered injuries “on at least 63 occasions … by his own violence and by the reactions of other residents to him’’ while he was an inpatient at Pennhurst State Hospital in Pennsylvania. His mother sued, arguing that Romeo’s Eighth and Fourteenth Amendment rights were being violated. The US Supreme Court agreed that Romeo had “constitutionally protected liberty interests under the Due Process Clause of the Fourteenth Amendment to reasonably safe conditions of confine-ment, freedom from unreasonable bodily restraints, and such minimally adequate training as reasonably may be required by these interests’’. “Minimally adequate training’’ required the ex-ercise of professional judgment, which was held to be presump-tively valid and to which “courts must show deference’’.

Most of the right to treatment cases attacked institutional standards of care, and were based on efforts to expand the scope of constitutional rights of inpatients. As will be seen below, cur-rent litigation seeking to establish rights to treatment in the com-munity focuses largely on the statutory rights afforded by such anti-discrimination statutes as the Americans with Disabilities Act (ADA).

Right to Refuse Treatment

Patients with little or no insight into the nature of their psychiat-ric illness often refuse treatment. A compelling set of ethical and legal questions arises when a person’s stated choice (not to re-ceive treatment) appears to conflict with medical prediction that the person’s insight and mental status would probably improve with treatment. In the past, a general assumption that mentally ill patients were, by definition, incompetent, led society to grant psychiatrists a great deal of autonomy in selecting and adminis-tering treatments to patients. With the consumer activism of the 1960s and 1970s and the accompanying development of patients’ rights, however, psychiatrists and legal authorities have come to see that involuntarily committed patients are not always glob-ally incompetent, and efforts to support patients’ rights to refuse treatment have increased.

Although the US Supreme Court has not declared a federal right to refuse treatment, federal Appeals Courts and most state courts have found such rights in the federal or state constitutions, citing the due process clause of the Fourteenth Amendment, within the right to privacy, bodily integrity, or per-sonal security.

Appelbaum (1988) has described two broad models of treatment refusal. The “rights-driven’’ model seeks to maximize patient autonomy. It is based on the principle that competent adults have the right to reject treatment, even if the rejection of such treatment may result in harm or even death. States that adopt this model focus on the patient’s competence to make the decision and often have considerable judicial procedures protecting patients. The laws of these states typically remove decision-making power from the psychiatrist and vest it in a guardian or the court. In these states the guardian or court decides what the patient would want if he or she were competent (the “substituted judgment’’ standard). The substituted judgment doctrine requires a challenging deci-sion: it means that the judicial decision-maker must decide, based not on his or her own values and interests, or even on what may objectively be in the patient’s best interests, but instead on what the patient would decide if he or she were competent.

The “treatment-driven’’ model tends to view treatment as an essential element of commitment to a hospital. States with this model tend to give psychiatrists more autonomy in making decisions for patients. Procedural review is done primarily by psychiatrists and is usually focused on whether the treatment is appropriate to the patients’ conditions. A series of cases ema-nating from Massachusetts is emblematic of the rights-driven model. In the matter of Guardianship of Richard Roe III (1981), the court noted on involuntary psychiatric medication for psychi-atric outpatients, stating, “If an incompetent individual refuses antipsychotic drugs, those charged with his protection must seek judicial determination of substituted judgment’’.

A later Massachusetts case, Rogers v. Commissioner of Mental Health (1983), applied this rationale to involuntary inpa-tients. Incompetent patients at Boston State Hospital were being given antipsychotic medication without the opportunity to give informed consent. The Rogers case upholds the right of com-mitted mentally ill patients to make treatment decisions unless they have been adjudicated incompetent by a court. The Rogers court also affirmed the holding that treatment with antipsychotic medication constituted extraordinary treatment, and that author-ity to administer such medication to an incompetent individual required the exercise of the individual’s substituted judgment. The court outlined six factors that a judge must assess when de-termining whether a patient should be permitted to refuse treat-ment: 1) the patient’s previously expressed preference; 2) the patient’s religious convictions; 3) the impact on family of the patient’s preference; 4) probable side effects; 5) prognosis with treatment; and 6) prognosis without treatment. Several cases il-lustrate the treatment-driven model. Rennie v. Klein (1983), de-cided in the Third Circuit of the US Court of Appeals, held that New Jersey’s procedures for reviewing the administration of antipsychotics to an unwilling patient were consistent with due process: the “decision to administer such drugs against a patient’s will must be based on accepted professional judgment’’. Rather than have the courts superimpose procedural safeguards, treat-ment-driven model cases defer to medical judgment. The Rennie decision relied on the US Supreme Court’s deference to profes-sional judgment in Youngberg v. Romeo (1982).

Liberty and Civil Commitment

Although it is generally agreed that patients have a right to be treated in the least restrictive setting, there are times when a person’s mental illness is such that he or she must be hospitalizedinvoluntarily. Each state has different provisions for short-term emergency commitment. Many states have removed this process from the judicial setting; some states, however, require a prob-able cause hearing before even an emergency commitment. The purpose of such a hearing is to determine whether there is prob-able cause to believe that the person meets the legal criteria for involuntary hospitalization. If the patient is hospitalized after such a hearing, it is generally for a short period of time for evalu-ation; if it is determined that the patient needs longer involuntary hospitalization, then the statutory procedures for long-term com-mitment must be followed.

In the case of O’Connor v. Donaldson (1975), the US Supreme Court set a minimum below which states cannot set their standards for civil commitment. The Court wrote: “The state cannot constitutionally confine without more, a nondanger-ous, mentally ill person who is capable of surviving safely by himself or with the help of family or friends’’. While the Court did not state what it meant by “more’’, most states now require a finding of dangerousness in addition to mental illness.

In Addington v. Texas (1979), the US Supreme Court recog-nized the substantial liberty interest involved in a commitment, and set the minimum standard of proof for commitment cases as “clear and convincing’’. The court ruled: “The individual’s lib-erty interest in the outcome of a civil commitment proceeding is of such weight and gravity, compared with the state’s inter-ests in providing care to its citizens who are unable, because of emotional disorders, to care for themselves…that due process requires the State to justify commitment by proof more substan-tial than mere preponderance of the evidence…. The reasonable- doubt standard is inappropriate in civil commitment proceedings because, given the uncertainty of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an un-reasonable barrier to needed medical treatment’’. (A few states do interpret their own constitutions to require proof beyond a reasonable doubt.)

The standards for long-term commitment vary from state to state, but they all rely on two broad principles of state power. One is the parens patriae power; the other, the police power. Parens patriae, translated from Latin as “father of the country’’, histori-cally referred to the sovereign’s power to make decisions for the subjects. A more contemporary translation is “state as parent’’, which refers to the government’s interest in, and responsibility to act for, individuals who are unable to care for themselves. Parens patriae is used as a rationale for commitment when a person is unable to care for herself or himself as a result of a mental ill-ness or when he or she poses a danger to self. The police power stems from the state’s interest in maintaining public safety. The commitment criterion of “dangerousness to others’’ is derived from the police power. Over time, the trend in legislation and in court action has been more toward the dangerousness standard and less toward disability. Under all current statutes, a finding of mental illness is a prerequisite to commitment Table 6.2.

The notion of dangerousness to others or to self is a prob-lematical one for psychiatrists, given that prediction of harm is an inexact science. Complicating the picture is the fact that states also require different levels of proof that people are dangerous to themselves. Some states require imminent harm, while oth-ers are more tolerant of general predictions of future dangerous-ness based on a patient’s pattern of treatment noncompliance and decompensation.

Finally, many states require a finding that hospitalization is the least restrictive method to prevent the harm the patient

faces. In Lake v. Cameron (1966), the District of Columbia Court of Appeals held that a 60-year-old demented homeless woman could not be involuntarily hospitalized if there were other alter-natives. This case is most famous for the concept of “least restric-tive alternative’’, as it focused on the place of confinement as well as the fact of confinement.

The issues underlying the threshold for commitment are fundamentally social, not psychiatric. They entail a balancing of rights and liberty interests with needs for treatment and safety. This balance has historically shifted with changes in the political and social climate, and continues to be a source of debate in both the legal and mental health fields.

In 1985, the APA developed a Model Law for Commitment, which generated considerable debate in the profession: “[I]t was conceived in response to the…‘libertarian model,’ which many mental health professionals and growing numbers of families be-lieved was unworkable, unrealistic and inhumane’’ (Stone, 1985). Stone added that “the liberty of psychotic persons to sleep in the streets of America is hardly a cherished freedom’’ and advocated for greater discretion for psychiatric commitment as well as greater resources for treatment once the patient is hospitalized.

Outpatient Commitment

Progress in the treatment of severe and chronic mental illness often depends upon the patient’s compliance with medication and other treatment regimens in the community. This has been a source of challenge and frustration for psychiatrists who treat such patients. In recent years there has been a growth of interest in the possibility that outpatient commitment may offer a way to ensure that those who most need treatment will in fact receive it. In principle, an outpatient commitment law allows the same sort of treatment options as already exist with inpatient commit-ment: a patient may be deprived of liberty and, if found to be incompetent to make medication decisions, may be made to take medication against his will. While inpatient commitment is justi-fied when a patient represents a danger or cannot care for himself, how does one justify coercing a patient who may be stable, rela-tively symptom-free and functioning in the community?

Here the legal debate splits into two camps. Those in fa-vor of outpatient commitment make several arguments: 1) the treatments are safe and effective; 2) untreated mental illness may increase the likelihood of violence, homelessness, incarceration and suicide; and, more controversially, 3) patients with severe mental illness frequently lack awareness of their condition, and are therefore not really free when ill (Torrey and Zdanowicz, 2001). Those opposing outpatient commitment counter that:

better funded and staffed outpatient programs would provide the kind of outreach which would make coercion unnecessary; 2) the prospect of coercion may actually drive certain patients away from help; 3) public safety would not be enhanced by outpatient commitment; and 4) even the most ill patient is, in the eyes of the law, still competent to refuse treatment (Allen and Smith, 2001).

At least 41 states permit some form of outpatient com-mitment, yet the first two randomized trials examining its use (Steadman et al., 2001; Swartz et al., 2001) provided equivocal evidence of efficacy (Appelbaum, 2001). The actual mechanics of apprehending a nondangerous person, taking him/her to some facility, and injecting him/her involuntarily with medication, all because he/she had not followed through on a treatment plan, has proven difficult both to implement and to tolerate in a society which still places great value on maintaining its citizens’ liberty interests. The debate will continue as psychiatrists try to reduce the aggregate suffering imposed on individuals and society by the effects of untreated mental illness.