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The Right to Refuse Treatment:
Paradox, Pendulum and the Quality of
Thomas G . Gutheil, M.D.
This clinical and theoretical overview of the right to refuse treatment will
address some of the themes that have dominated this area of intetface between
psychiatry and the law, and have, perhaps, obscured the real concern of the
right to refuse treatment question; i.e., the issue of quality of care. Central
themes include factors present in the medicolegal context and recent events,
origin of the concept of the right to treatment, the separation of conjinement
from treatment, and the changing models of vicarious decision making. This
review also addressesjudicial conceptdizations of treatment, including the
concept of quarantine,judicial risk-aversiveness,and judicialfantasies of drug
action. Some possible directionsfor the future are also examined.
In presenting an overview on the right to refuse treatment, this article will
address some of the themes that have dominated this area of interface between
psychiatry and law. Other articles in this volume will cover in detail the separate
elements of this broad topic.
An anecdote from my pediatrics internship may serve to highlight the central
concerns. I frequently found on followup visits with Hispanic families whose
children I was treating, that the baby had not been given its medication correctly
or, had not been given it at all. Gradually it became clear that my act of
prescribing, to which I brought all my nascent skills as diagnostician and pharmacologist, was not the final step in the process, as I imagined it to be, but only
the first. After the prescription had been written and the family had listened
Thomas G . Gutheil, M.D.,is the Co-Director, Program in Psychiatry and Law,Massachusetts
Mental Health Center, Boston, Mass.Correspondence and reprint requests should be oddressed
to: Thomas G. Gutheil, M.D., Massachusetts Mental Health Center, 74 Fenwood Road,Boston,
MA 02115. The author acknowledges his indebtedness to Lcslie M. Levi for assistance in the
preparation of this manuscript.
Behavioral Sciences & the Law, Vol. 4, No. 3, pp. 265-277 (1986)
CCC 0735-3936/86/030265-13$04.00
0 1986 John Wiley & Sons, Inc.
Gutheil: Paradox, Pendulum, Quality of Care
politely to my instructions, the prescription and my instructions were brought
before the grandfather of the family for discussion and decision-making. He
would be the actual arbitrator of how the medicine should be taken, or even if
it should be taken at all.
This anecdote captures several elements central to understanding the concept
of the right to refuse treatment.
In treating patients, physicians often have been accused of paternalism in their
approach. In psychiatric inpatient settings, the physician often acted in what he
or she perceived to be the patient’s best interests, regardless of the patient’s
position on the matter. A patient seen as needing treatment was given that
treatment based on the view that “doctor knows best.” A patient out of control,
or whose refusal was clearly a part of the illness, received what amounted to an
ad hoc determination by the clinician of incompetence to consent to or refuse
treatment. After two or three days of involuntary medication, the patient was
usually in touch with the situation, taking medication voluntarily, asking for
increased privileges, and demanding to know when the family was going to
visit. This medical decision-making view has slipped out of and back into vogue
with the judiciary.
In my initial anecdote, medical paternalism was supplanted by cultural paternalism, a condition perhaps more closely resembling real life. As Stimson
(1974) has noted, the recipient of a prescription does not live in an informational
vacuum, but receives an enormous amount of data about illness and treatment
from many sources. Furthermore, although my patients were minors, even
competent adult outpatients weigh the value of the prescription against internalized and external value systems, often of a paternalistic nature (Gutheil,
The clinical anecdote also touches on the theme of autonomy, a second essential principle in the right to refuse treatment. Here, the family maintained
their autonomy from medical decision-making, but surrendered it to the equivalent of a tribal elder. The question of maintaining autonomy grows even more
complex for inpatients mandated to be under a doctor’s care. How much autonomy should be granted to this population and to what degree? Is the essence of
preserving autonomy fully realized by the use of informed consent? Under what
circumstances should preservation of autonomy-ethically , as well as clinically
desirable-be sacrificed for some higher good, such as safety or rapid release
Gutheil: Paradox, Pendulum, Quality of Care
from confinement? Is the patient ceding his or her autonomy involuntarily to the
disease? That is, is the patient or the illness “talking?’
Closely related to the last point is the idea of freedom. Is freedom of choice
preferable to a freedom from illness? That is, since involuntary hospitalization
might be construed as a temporary decrease in liberty in exchange for a more
definitive gain in liberty (i.e., from the illness and its consequent risks and
suffering), might involuntary treatment offer the same tradeoff: a short-range
incursion on liberty in exchange for a more fundamental liberation?
The concept of competence to consent to treatment, one of the elements of
informed consent, is less obvious in the anecdote, yet it is present at two levels.
First, the children to whom the medication was given were not competent on
the basis of age to decide about their treatment. Second, their parents, as presumably competent adults, could have made valid decisions about the medications. They elected, however, to cede their decision-making capacity to the elder
in the family. In analogous ways, many patients, in and out of hospitals, cede
their decision-making capacity to their physician, saying, in effect: “I don’t know
what’s the best choice here; you go ahead and do what you think is best and I’ll
trust your judgment.”
I have suggested that an informal competence assessment (with a finding of
incompetence to make treatment decisions) was taking place at those points
where patients’ refusals of needed treatment were overridden by clinicians. Most
discussions of autonomy presume autonomous choices by competent individuals.
While inpatients vary in actual competence, a conceptually interesting question
alluded to earlier is whether involuntary commitment as a principle, legal statutes
aside, represents a de fact0 determination of incompetence to make treatment
choices generally, or whether medical treatment decisions lie in a separate realm
of decision-making, requiring separate procedures or sanctions. This question is
discussed in detail later.
The Physician’s View
Finally, the anecdote hints at the physician’s bewilderment at the fact that the
patient is refusing orjejecting his or her recommendations made with the best
interests of the patient at heart. It is not simply that the patient appears to be
opposing the, physician, but to be opposing the patient’s own best interests. In
the anecdote this posture has a cultural basis. In most clinical settings the illness
and its effects on decision-making are held to account for the self-defeating acts.
But, the core of the experience for the clinician in either case is the feeling of
being asked to care for a patient whom he or she cannot treat in the best way
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In 1974 an important summary article appeared in the Harvard Law Review
discussing developments in the issue of civil commitment (3). The articlecontains
this observation:
Inherent in an adjudication that an individual should be committed . . . is
the decision that he can be forced to accept treatments . . .; it would be
incongruous if an individual . . . could frustrate the very justification for
the state’s action by refusing such treatment.
The reasoning underlying this point can readily be grasped to commit someone
involuntarily to a mental institution without treatment for the illness that is the
underlying basis for such confinement would be tantamount to warehousing him
or her, that is, to confining without hope of reversing the process that resulted
in the confinement.
Moreover, since patients, unlike criminals, could be confined by statute in
many jurisdictions without actually having “done anything,” that is, by posing
only the threat of imminent harm on the basis of mental illness, their rights
would be thus doubly violated if one separates their confinement from treatment.
In 1985, a Wisconsin court held that committed patients did not have a right
to refuse treatment. In his opinion, the judge observed: “Non-consensualtreatment is what involuntary commitment is all about.”
The naive student might conclude, on examining the conceptual positions here
juxtaposed, that the issue of the right to refuse treatment had not changed significantly in these 11 years. These authorities seemed to agree that involuntary
patients must be treated, even involuntarily, as a condition of their confinement,
and that it would be paradoxical if the patient’s presumably illness-based refusal
of hospitalization and treatment (thus forcing involuntary hospitalization) permitted them to refuse treatment, the need for which, in part, justified their
Fundamental Issue: Quality of Care
I have suggested (Appelbaum & Gutheil, 1981) that the quality of care that
a patient receives is latent in discussions of the right to refuse treatment. Even
when the issue is argued on constitutional grounds, an historical perception of
the deficient levels of staffing and care available in most state hospitals influences
the attitudes of advocates and others. Militating for a right to refuse treatment
appears to offer one narrow pathway toward improvement of conditions in hospitals. Ironically, as Gill (1982) has suggested, it appears that the actual effect
may be the opposite. By delaying treatment and placing patients and staff in an
1. Stensvad v. Reivitz (D.C.Wisc 84-C-383-5,
Jan 10, 1985).
Gutheil: Paradox, Pendulum, Quality of Care
adversarial relationship, marginal state hospital conditions may actually be made
worse by the establishment of a formal right to refuse treatment.
Regrettably there is a considerable dearth of long-term information on the
actual sequelae of recently established rights to refuse treatment. Some multicenter studies in progress should shed further light on this point.
Right to Treatment
This concept, coined by Birnbaum (1960) began to become a factor in judicial
thinking about psychiatric inpatients through a series of
As suggested
earlier, patients confined to a state hospital should receive treatment beyond
custodial care to justify that confinement. Here, also, the issue of quality of care
first received explicit judicial definition, through guidelines on the minimum
standards of treatment.
The Commitment/Treatment Schism
Another evolving concept is what might be termed the commitment/treatment
schism or separation. Once considered inseparable, these two elements began
receiving separate and distinct judicial consideration, Le., the one did not necessarily flow from the other.
Subsumed in this shift was an alteration of the critical question from one of
dangerousness to one of competence. When commitment served as a response
to dangerousness, treatment could be seen as another factor decreasing the danger, as well as justifying the confinement itself. If the question is reformulated
in terms of the competence of the patient to participate in the treatment decisionmaking, dangerousness aside, then the situation is altered in a manner that might
seem puzzling at first.
Commitment only occurs when the patient refuses the intervention of hospitalization. Although “danger from mental illness” is the reason given, one can
assume that this refusal is being treated as though it were an incompetent decision,
i.e., illness based. Why, one could ask, does this not apply to an apparently
similar illness-based refusal of another intervention, i.e., medication?
One possible answer lies in the compartmentalization of much judicial reasoning, a point that will be addressed in more detail later. Thus, short-term
treatment interventions may, like commitment, be justified in emergencies. For
example, patients may receive medications for dangerousness criteria similar to
those of commitment, i.e., risk of imminent harm. Longer term interventions
such as treatment regimens with daily divided doses, appear to represent something different to the judiciary, which here invoke the informed consent model,
based on competence.
Thus, the commitmentheatment schism and concomitant shift from danger2. Wyatt v. Stickney 325 F. Supp. 781 (MD Ala 1971).
3. O’Connor v. Donaldson 422 U.S.563; 95 S.Ct.2486 (1975).
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Gutheil: Paradox, Pendulum, Quality of Care
ousness to competence criteria synergize to produce the dilemmas addressed in
this issue.
Patients as Minorities
Part of the socioculturalbackground for the right to refuse treatment legislation
flows from the growth in interest in minority rights during the late ’60’s and
early ’70’s. Hospitalized mental patients were seen by legal advocates and others
as oppressed minorities in need of advocacy or other legal interventions. Hence,
a number of patients’ rights, including the right to refuse treatment, became of
Issues for Lawyers
The same era saw the development of what has been called the “mental health
bar” (Gutheil & Appelbaum, 1982), that is, the development among groups of
attorneys of specialized interest in and familiarity with mental health issues,
procedures, and problems. Psychiatrists began to appear on law school faculties
to meet the educational needs resulting from this growth of interest.
The development of “no-fault trends” in various areas of civil practice (e.g.,
auto insurance) may also have played an indirect role in diverting attorneys into
other fields of practice. This is likely to have had a greater influence on private
sector psychiatry, rather than on the state hospital system, for obvious economic
Changing Models of Vicarious Decision-Making
Historically, decision-making on behalf of mental patients was informal, to
say the least. Clinicians faced with a patient manifestly too sick to make his or
her own decisions could turn to family members, court-appointed guardians, or
judges. Often, as noted earlier, the physician acted as the ad hoc guardian of
the patient, making the decision in the best interests of the patient.
This “best interests” standard, popular for many years, has been yielding to
a new standard of “Substituted judgment.” Simply put, this judgment represents
the attempt by the vicarious decision-maker to divine what the incompetentperson
would do if they were competent. This model attempts to individualize vicarious
decision-making and to free the process from possible bias stemming from ambiguity about whose “best interests,” the person’s or the decider’s, are being
Ironically, a fundamentally irresolvable paradox is created when this model
is applied to the right to refuse treatment with antipsychotics, a paradox which
is ignored in most legal discussions of the matter. When substituted judgment
is required because the patient has been rendered incompetent by mental illness,
the decision to be faced is whether or not to consent to treatment with antipsychotics. These drugs will then ostensibly restore the patient to his pre-illness
Gutheil: Paradox, Pendulum, Quality of Care
27 1
competence. But before he was ill and incompetent, he had no need for the
drugs. Thus, when you ask what the incompetent patient would want if he were
competent (substituted judgment), you are essentially asking, “If this patient
were well, what medication would he choose for his illness?” This paradox is
heightened by the reality that while many individuals prepare for future death
in various ways, almost no one prepares for future incompetence. As a result,
the substituted judgment model of vicarious decision-making may be as much
a guessing game in practice as the “best interests” model seemed to be.
Clinical Context
During the same period the state hospital system nationwide was swept by
storms of varying descriptions. Funding cuts and state hospital closings vied
with messianic attempts at deinstitutionalizationfor which would exert the greater
disruptive effect on the delivery of mental health care. Depending on the quality
of care available, involuntary treatment in this system often resulted in mismedication, overmedication, medication for sedation only, and similar abuses.
These pharmacologic failures often joined with, or were caused by, underfunding
and understaffing, such that one doctor covered 300 patients, or absent a doctor,
aides or other medically untrained persons made medication decisions.
In slightly better settings, patients who were promptly (if involuntarily) treated
returned to self control and competence and were discharged. Often, however,
aftercare was inadequate such that monitoring of medication compliance or other
elements of continuing care were deficient. This resulted in rapid return to the
hospital and the development of what has been called the “revolving door
Judicial Conceptualizations of Treatment
We must touch briefly upon some of the perceptions of psychopharmacologic
treatment prevalent among the judiciary during this period. These perceptions
are gleaned from case law, legal articles, and empirical research.
Concept of Quarantine
The first issue is the concept of quarantine for mental, not infectious, diseases.
This was given explicit expression in Rogers v.
By this reasoning, the
mentally ill and dangerous individual was to be quarantined from his or her
fellow citizens to prevent, presumably, the contagion of his or her danger.
Noteworthy in Federal District Court Judge Joseph Tauro’s opinion is the secondary role of actual treatment: “We know that the committed mental patient
has been quarantined from house, family and society . . . The involuntarypatient
4. Rogers v. Okin 478 F. Supp. 1342 (D. Mass. 1979).
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was committed primarily to quarantine that patient from the outside world,
hopefully to be treated and cured . . .”
The issue here of quarantine as the primary object of hospitalization resonates
with a complaint frequently expressed by clinicians in two scenarios: (a) when
an advocate, having achieved by means of a hearing the release of a patient,
loses interest in the patient’s welfare once the hearing is over and the civil rights
question is resolved, or b) when a committed patient, too ill or dangerous to be
released, has won the right to refuse treatment and remains stuck in therapeutic
limbo, “rotting with his rights on,” as elsewhere expressed (Appelbaum & Gutheil, 1979). In each case the naive clinician asks the attorney, “Okay, you’ve
won the case, now what do we do with the patient?“, to which the attorney
replies, “How should I know? I’m not a doctor (social worker, placement aide,
community agency, etc.).” Like such advocates, some judges also lose interest
in the eventual fate of the patient after the hearing; the clinician, however, remains
necessarily involved.
Judicial Risk-Aversiveness
Although this point is not often stressed, judges tend to be risk-aversive in
their general approach to decision-making. That is, since no one demands legal
redress for an advantage that they have accrued, the court’s experience is more
oriented towards determining degrees of risk, harm, cost, or losses than determining benefits. Courts do not usually perform the prospective risk-benefit balancing assessments that are the essence of clinical decision-making.
A remarkable example of this point occurred in the Roe’ case, ancestor to the
Rogers case. The Massachusetts Supreme JudiciaI Court quoted heavily from a
famous antimedication polemic (Plotkin, 1977), but quoted only one line from
a legitimate pharmacologic source. The shocking degree of bias revealed by the
court is rendered perhaps slightly comprehensible if we understand that the court
isn’t really interested in the good that drugs do, but only in the harms, since
issues of compensation and infringement of rights are perceived as deriving from
risks, not benefits.
Empirical confirmation of this point is found in an as yet unpublished survey
comparing judges’ and psychiatrists’ estimations of risks of tardive dyskinesia
when prescribing antipsychotics to prevent psychosis. This study found the two
groups agreeing on the likelihood of occurrence of this effect. For judges this
risk was unacceptably high; for doctors, acceptably low (Bursztajn et al.,
Judicial Fantasies of Drug Action
An extensive survey of civil and criminal court opinions on the mechanisms
of action of antipsychotic drugs revealed that criminal courts appear to achieve
clear and reasonable perceptions of how drugs work, based on expert testimony.
However, civil courts frequently appear to feel a freedom to characterize drugs
in idiosyncratic, often polemic ways (Gutheil & Appelbaum, 1983). More sigBEHAVIORAL SCIENCES & THE LAW
Gutheil:Paradox, Pendulum, Quality of Care
nificantly, the right hand, so to say, not only does not know what the left hand
is doing, but fails to acknowledge its existence. Less metaphorically, the civil
and criminal cases usually do not cite each other, so that the separation of these
two streams of information is preserved.
A range of judicial fantasies concerning psychiatric treatment exists. The most
common one is the view of drugs as “mind-altering.” Though strictly true in the
mind-restoring sense, this term is used pejoratively, in the sense of mind control.
In a famous judicial excess, Judge Tauro attempted to make a First Amendment,
freedom-of-speech issue out of this perceived mechanism, seeming to defend a
patient’s freedom of psychotic speech and thought, as though the clinician were
attempting to suppress dissenting ideas, rather than to treat a d i ~ e a s e Other
fantasies include views of antipsychotics as “undermining the foundations of the
personality,” as being similar to ECT and psychosurgery, and as creating an
artificial competence (Gutheil & Appelbaum, 1983).
Legal Quanta vs. Clinical Continua
One communicative difficulty at the clinical-legal interface stems from judicial
compartmentalization, i. e., perceptions of treatment interventions as discrete
quanta, or separate events, rather than as elements of a continuous flow of
treatment (Gutheil & Mills, 1982). In right to refuse treatment cases, this has
been termed “one punch, one shot” reasoning. Thus, the inpatient punches a
staff member, demonstrating acute danger and justifying an emergency intervention, inappropriately limited by the court to one injection (“shot”) of medication, rather than to the safer, wiser, and more appropriate response, i.e.,
initiation of a course of treatment aimed at successfully attaining those blood
levels of drug needed to treat the underlying disease. When the shot wears off,
the patient, whose illness has not been significantly treated, may repeat the
process indefinitely, a circumstance exposing the patient to all the risks and none
of the benefits of treatment. Advocates argue that medication after the initial
shot has not been justified, because the patient is not dangerous enough immediately afterward to merit more medication. Again, only a compartmentalized
view makes these curious conceptualizations comprehensible.
Some Realities of Due Process
For advocates, due process represents the sovereign remedy for disagreements
within a system, often to the point that one suspects due process as representing
an end in itself for the more extreme members of this group. For the busy
clinician the value of the often cumbersome court-related procedures (the affidavits, the certificates, the hearings, and the actual experiences on the witness
stand) often appear to be unjustified drains on the most precious treatment resource, that being time carefully spent with a patient by a competent clinician.
5. In the matter of guardianship of Richard Roe 111 421 N.E. 2d 40 (Mass. 1981).
VOL. 4 NO.3 1986
Gutheil: Paradox, Pendulum, Quality of Care
From a purely legal standpoint, due process is intended to be slow, cumbersome, and expensive, for the simple reason that protection of civil rights often
requires such prophylactic ponderousness, For the clinician attempting to treat
a nonemergent, but intervention-requiring patient, however, this line of reasoning
is often unconvincing, especially for inpatients, since the clinician must still
house and care for the patient, who continues to consume bed space and nursing
resources, even if treatment is delayed or precluded.
In actual practice the implementation of the right to refuse treatment is highly
variable, as is the degree of due process deemed necessary to achieve the desired
conflict resolution (Gutheil, 1985). At one extreme, a full adversarial evidentiary
hearing before a judge is required.6 In other settings various extrajudicial or
quasijudicial procedures may be sufficient (Hoge et al., unpublished).
Empirical results are preliminary and varied, but some findings are of interest.
First, in the most restrictive of settings, the fewest cases are brought for actual
review, and the overwhelming majority of those cases of patient reusal are
overturned, i.e., the judge orders that the patient be treated. In more informal
and less restrictive settings, more cases are reviewed and more refusals by patients
are honored (Hoge et al., unpublished).
These surprising, even paradoxical, findings strike directly at the question of
the purpose of due process: if the purpose is to have a hearing, then the hearing
is needed; if to protect the patient’s freedom to refuse, then informal methods
may more realistically achieve this end. Unfortunately, the judiciary’s lack of
interest in what happens to the patient after the hearing is only matched by its
lack of interest in empirical realities such as these.
A Core DBiculty: “Critogenesis”
Medicine already has the term “iatrogenesis” to refer to a medical problem
caused by the practice of medicine; the law has no such term, so that members
of the Program in Psychiatry and the Law at the Massachusetts Mental Health
Center have tried to fill this need devising the term, “critogenesis” (from the
Greek word, “crites” meaning Athenian judge) to refer to harms or problems
caused by legal procedures and processes themselves, regardless of how wisely
applied (Bursztajn, 1986). A familiar example of a critogenic harm is the adversarializationof the doctor-patient relationship. This major threat to the alliance
stems from the fact that, since the doctor wants the patient to be treated and the
patient is saying that he or she does not want this, the two “parties” are in
conflict. This primitive conceptualization ignores the ambivalences present in
both doctor and patient about treatment. Areas that might be productively discussed, explored, or explained are ignored. The fact that the patient may both
wish and not wish to be treated, as the doctor may both wish and not wish to
6. Rogers v. Commissioner of Mental Health S-2995, Mass (Nov. 29, 1983).
Gutheil: Paradox, Pendulum, Quality of Care
impose treatment is not addressed in such an adversarial setting. In the legal
setting the issue is distorted through simplification: the two sides of the case (or,
more accurately, the attorneys for both sides) oppose each other.
Another layer of complexity results from the fact that courts often portray the
doctor as inherently in conflict with the patients under his or her care. For
example, if the doctor has several patients on the same ward and one of the
doctor’s patients attacks another of the doctor’s patients, then in stopping patient
A to protect patient B, the doctor is countering A’s actions for reasons that
allegedly have to do with B’s interests, and not A’s.
. . . the doctors who are attempting to treat as well as to maintain order . . . have interests in conflict with those of their patients who may wish
to refuse medication.”6
This similarly primitive conceptualization also ignores the value spread among
both patients and the surrounding milieu from such intervention, which is in
everyone’s interests, not just patient B’s.
Yet another point of possible friction between legal and medical models in
this area flows from the patients themselves. When advocates advance what they
perceive to be the patient’s interest, they often do not take into account other,
sometimes predominant, interests or wishes in which the patients may be invested, yet which are not questions of rights or entitlements with which advocates
are most comfortable.
An example of this stems from the time when guardianships were required if
a patient was thought to be incompetent in refusing, or for that matter accepting,
medication. The patient, a long-term inmate at the hospital, rarely refused his
medications, which he realized were to help him. During the furor around the
right to refuse treatment, he had decided to exercise this right and refused his
medication. Staff explained to him the details of the procedure whereby his case
would be ruled upon by the court, which, if it agreed that he was incompetent,
would appoint a guardian to decide on his behalf. At that the patient exclaimed,
“To hell with that! I don’t want a guardian, I’d rather just take the medication.”
In this example, the due process protections were viewed by the patient as more
trouble than they were worth. Other similar patient views might include the wish
not to appear in open court, not to get into struggles with the treatment staff,
not to oppose their doctor’s wishes, and the like. For these patients, procedural
mechanisms may be a liability, not an asset.
Speculation in medicolegal areas is always problematic since fad and trend
can surprise the most experienced scholars. We can identify, however, some
possible areas within which future developments may lie.
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Gutheil: Paradox, Pendulum, Quality of Care
CommitmentD’reatment “Fusion”
As signaled by the Stensvad case at the outset,’ one possible trend is the
recombination of commitment and treatment, whereby the patient’s refusal of
hospitalization and of medications, both as required treatment interventions, are
linked by being grouped as “nonconsensual treatment.” This would be clinically
defensible and has now once again been made legally defensible.
Procedural Changes and Accelerations
A multiplicity of models are at least theoretically available for achieving the
requisite level of due process to satisfy the judiciary in a given jurisdiction. We
will probably see the growth of in-house review panels and other nonjudicial
models, since recent Supreme Court rulings have stacked the deck in favor of
deferring to medical judgment when that judgment has clearly been exercised.’
Peer review models should satisfy this requirement admirably, as well as responding far faster than courtroom proceedings with no less protection for the
Finally, due process may feed upon itself, as it were, when hospital attorneys
are able to exert pressure to require even those full judicial hearings to be
genuinely “speedy,” since the delay inherent in full proceedings always costs
everyone, especially the patient. Legislative mandates requiring very short “latencies” for such hearings might represent one such similar approach.
Precommitment Competency Assessment
One of the most interesting developments in the area of the right to refuse
treatment represents a variation on the fusion of commitment and treatment. This
model requires a finding of incompetence to consent to or refuse treatment as a
criterion of commitability.
This model already exists in two forms. A famous Utah case held that the
treating physician could ovemde the patient’s refusal of medication, since the
Utah legislature had recently enacted a commitment statute requiring a judicial
finding of incompetence before the patient could be committed.*Since the patient
had already had this exercise of due process, the physician could make the
treatment decision, serving in effect as the patient’s guardian.
A similar conceptualization is the basis of the American Psychiatric Association’s Model Commitment Statute which proposes commitment only for those
incompetent to make treatment decisions (Stromberg & Stone, 1984). The central
advantage of this model is that it ensures a patient will not be committed to an
institution that is not authorized to treat him or her, and thus prevents patients
7. Youngberg v. Romeo 50 U.S.L.W.4681 (June 15, 1982).
8. AE and RR v. Mitchell No. C78-466 (D-Utah,
June 16, 1980).
Gutheil: Paradox, Pendulum, Quality of Care
from “rotting with their rights on.” It remains to be seen what impact this model
will have on actual practice in varying jurisdictions.
More than many medicolegal issues, the right to refuse treatment captures the
full impact of the ancient Chinese curse, which invokes: “May you live in
interesting times.” This overview has attempted to review the “interesting time”
of this thorny issue and to sketch in the scope and complexity, the paradoxes
and pendulums, of this controversial attempt to ensure what is always the clinician’s aim: improvement of the quality of care. The other articles in this issue
will sharpen our focus on the diverse elements (clinical, legal, and empirical)
on this topic.
Appelbaum, P. S., & Gutheil, T. G . (1979). Rotting with their rights on: Constitutional theory and clinical reality
in drug refusal by psychiatric patients. Bulletin of rhe American Academy of Psychiatry and Law, 7,308-317.
Appelbaum, P. S., & Gutheil, T. G. (1981). The right to refuse treatment: the real issue is the quality of care.
Bullerin of the American Academy of Psychiatry and Law, 9.199-202.
Birnbaum, M. (1960). The right to treatment. American Bar Association Journal, 46,499-505.
Bursztajn, H. (1986) More law and less protection: “critogenesis,” “legal iaaogenesis,” and medical decision
making. Journal of Geriatric Psychiarry 18,143-153.
Bursztajn, H. et al. Empirical differences between psychiatrists’ and judges’ risk perceptions of tardive dyskinesia
in prescribing anti-psychotic medications. (Unpublished manuscript).
Developments in the law--civil commitment of the mentally ill. Harvard Law Review, 87(6),1190-1406, 1974.
Gill, M. T. (1982). Side effects of a right to refuse treatment lawsuit: The Boston State Hospital experience. In
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