Non-consensual treatment is (nearly always) morally impermissible

Journal of Law, Medicine and Ethics

Volumn 38, Issue 4, 2010, Pages 789-798

  Cherry, Mark J ^a  

^a ST EDWARD'S UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONFERENCE PAPER; ETHICS; FORENSIC PSYCHIATRY; HUMAN; HUMAN RIGHTS; INFORMED CONSENT; LEGAL ASPECT; MENTAL CAPACITY; MENTAL DISEASE; MORALITY; PATIENT COMPLIANCE; PERSONAL AUTONOMY; PERSUASIVE COMMUNICATION; TREATMENT REFUSAL; UNITED STATES;

COERCION; COMMITMENT OF MENTALLY ILL; HUMAN RIGHTS; HUMANS; INFORMED CONSENT; MEDICATION ADHERENCE; MENTAL COMPETENCY; MENTAL DISORDERS; MORALS; PERSONAL AUTONOMY; TREATMENT REFUSAL; UNITED STATES;

EID: 78649609985     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2010.00532.x     Document Type: Conference Paper

References (45)

1. M. J. Cherry and H. T. Engelhardt, Jr., "Informed Consent in Texas: Theory and Practice, " Journal of Medicine and Philosophy 29, no. 2 (2004): 237-252.
2. Slater v. Baker and Stapleton, 95 Eng. Rep. 860, 2 Wils. K.B. 359 (1767).
3. Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891).
4. Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905), at 14.
5. This doctrine was further developed in Pratt v. Davis (224 Ill. 300, 79 N.E. 562 [1906]). There the court held: "Ordinarily, where the patient is in full possession of all his mental faculties and in such physical health as to be able to consult about his condition without the consultation itself being fraught with dangerous consequences to the patient's health, and when no emergency exists making it impracticable to confer with him, it is manifest that his consent should be a prerequisite to a surgical operation" (at 564).
6. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 93, 133 N.Y.S. 1143 (1914) at 93.
7. Olmstead v. United States, 277 U.S. 428, 278 (1928).
8. In re President and Directors of Georgetown College, Inc. 331 F.2nd 1000, 1017 [D.C. Cir.], cert. Denied, 337 U.S. 978 (1964).
9. Planned Parenthood v. Casey (505 U.S. 833; 112 S. Ct. 2791; 120 L. Ed. 2d 674; 1992).
10. For example, one may morally join the Marine Corps or the Houston fire department, work on oil rigs in Saudi Arabia or the Gulf of Mexico, scale sheer rock cliffs, donate a kidney or liver segment while living, drive for NASCAR, undergo elective plastic surgery, engage in promiscuous sex, pierce various "interesting" body parts, have oneself tattooed, and so forth, setting life and health at risk for national patriotism, career advancement, monetary profit, recreational or altruistic interests, personal pleasure, or to enhance one's attractiveness to potential sexual partners. See M. J. Cherry, Kidney for Sale by Owner: Human Organs, Transplantation, and the Market ( Washington, D.C. Georgetown University Press, 2005).
11. V. Alexander, H. Bursztajn, and A. Brodsky et al., "Involuntary Commitment, " in T. Gutheil, H. Bursztajn, H. Brodsky and V. Alexander, eds., Decision Making in Psychiatry and the Law ( Baltimore Williams & Witkins, 1991): at 89-107.
12. According to Olson, "In an interview study of 15 involuntarily committed patients after discharge, 40% said that they would never commit another person. In a study of 24 patients interviewed within 1 week of seclusion, only half agreed that seclusion was necessary. Another study of 84 committed and voluntary patients suggested that patient-reported improvement was related to the perception that patient autonomy was respected. So either a 'thank you' can not be counted on to provide the ethical justification for forced treatment or much current forced treatment is unethical." D. P. Olsen, "Influence and Coercion: Relational and Rights-Based Ethical Approaches to Forced Psychiatric Treatment, "Journal of Psychiatric and Mental Health Nursing 10, no. 6 (2003): 705-712, at 706.
13. "Brown v. Koch, " 60 Minutes, interview with Ed Bradley, 1998, cited in G. E. Pense, Medical Ethics: Accounts of the Cases and Issues that Define Medical Ethics (New York: McGraw-Hill, 2008): at 297.
14. Swartz et al. in their survey of 85 mental health professionals and 104 patients with schizophrenia spectrum condition found that 36% of the patients reported "...fear of coerced treatment as a barrier to seeking help for a mental health problem. ... In bivariate analyses, reluctance to seek outpatient treatment for fear of coercive treatment was significantly more likely in subjects with a lifetime history of involuntary hospitalization, criminal court mandates to seek treatment, and representative payeeship." M. Swartz, J. W. Swanson, and M. J. Hannon, "Does Fear of Coercion Keep People Away from Mental Health Treatment? Evidence from a Survey of Persons with Schizophrenia and Mental Health Professionals, "Behavioral Sciences and the Law 21, no. 4 (2003): 459-472, at 469-470; see also, M. Allen and V. Smith, "Opening Pandora's Box: The Practical and Legal Dangers of Involuntary Outpatient Commitment, "Psychiatric Services 52 (March 2001): 342-346; L. Kjellin, C.-G. Westrin, and K. Eriksson et al., "Coercion in Psychiatric Care: Problems of Medical Ethics in a Comprehensive Empirical Study, "Behavioral Sciences and the Law 11, no. 3 (1993): 323-334, at 327.
15. M. F. Svindseth, A. A. Dahl, and T. Hatling, "Patients' Experience of Humiliation in the Admission Process to Acute Psychiatric Wards, " Nordic Journal of Psychiatry 60, no. 1 (2007): 47-53, at 52.
16. B. Olofsson and L. Jacobsson, "A Plea for Respect: Involuntary Hospitalization Psychiatric Patients' Narratives about Being Subject to Coercion, " Journal of Psychiatric and Mental Health Nursing 8, no. 4 (2001): 357-366, at 361.
17. "Indeed, it is particularly critical to examine this possibility in the present context, as involuntary patients are less likely than voluntary patients to acknowledge that they are mentally ill. Among the most commonly cited reasons for this phenomenon are a lack of patient 'insight' that may be a product of underlying psychopathology, a defensive or adaptive reaction to a stressful situation, a conscious behavior directed towards avoiding a reduction of freedom, or perhaps response related to feeling coerced into inpatient treatment. These factors may result in problematic consequences that include non-compliance with treatment recommendations, poorer prognosis, and more significant deficits in social and occupational functioning." D. R. Hopko, P. M. Averill, K. Cowan, and N. Shah, "Self-Reported Symptoms and Treatment Outcome among Non-offending Involuntary Inpatients, " Journal of Forensic Psychiatry 13, no. 1 (2002): 88-106, at 91.
18. See, e.g., H. T. Engelhardt, Jr., The Foundations of Bioethics, 2nd ed. (New York: Oxford University Press, 1996); Cherry and Engelhardt, Jr., supra note 1; H. T. Engelhardt, Jr., "The Bioethics Consultant: Giving Moral Advice in the Midst of Moral Controversy, " HEC Forum 15, no. 4 (2003): 362-382; M. J. Cherry, "Of Intellectual History, Postmodern Ethical Banality, and the Search for Moral Content, "HEC Forum 14, no. 4 (2002): 342-354.
19. M. Amering, E. Denk, H. Griengl, I. Sibitz, and P. Stastny, "Psychiatric Wills of Mental Health Professionals: A Survey of Opinions Regarding Advance Directives in Psychiatry, " Social Psychiatry and Psychiatric Epidemiology 34, no. 1 (1999): 30-34, at 30. Heather Sones argues similarly: "The strongest medical arguments supporting the right to refuse psychotropic drugs relate to their side effects. With psychotropics, long-term therapy is necessary, as it may take four to six weeks for the drug to become effective. Yet the potential side effects of psychotropic drugs are not only numerous but may occur as early as five weeks into therapy. In some cases, the side effects 'can be more disruptive than the illness itself.'" H. Sones, "The Right to Refuse Psychotropic Drugs, " in R. B. Edwards, ed., Ethics of Psychiatry (New York: Prometheus Books, 1997): 218-224, at 221; citing M. D. Oriol and R. D. Oriol, "Involuntary Commitment and the Right to Refuse Medication, "Journal of Psychosocial Nursing and Mental Health Services 24, no. 11 (1986): 15-20.
20. See A. Meisel, "Making Mental Health Care Decisions: Informed Consent and Involuntary Civil Commitment, " Behavioral Sciences & the Law 1, no. 4 (1983): 73-88, at 85; J. C. Hughes. "Ethics and the Anti-dementia Drugs, "International Journal of Geriatric Psychiatry 15, no. 6 (2000): 538-543.
21. In many states couples may elect to enter a secular "Covenant Marriage, " which significantly restricts the possibility of divorce. "We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live. We have chosen each other carefully and disclosed to one another everything which could adversely affect the decision to enter into this marriage. We have received premarital counseling on the nature, purposes, and responsibilities of marriage. We have read the Covenant Marriage Act, and we understand that a Covenant Marriage is for life. If we experience martial difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling." State of Louisiana. RS 9:273, available at <> (last visited September 20, 2010).
22. As Holloway and Szmukler summarize: "In medical-ethical jargon, lack of capacity justifies over-riding the individual's 'autonomy' on 'paternalistic' grounds." F. Holloway and G. Szmukler, "Involuntary Psychiatric Treatment: Capacity Should Be Central to Decision Making, "Journal of Mental Health 12, no. 5 (2003): 443-447, at 443.
23. See P. S. Appelbaum, "Missing the Boat: Competence and Consent in Psychiatric Research, " American Journal of Psychiatry 155, no. 11 (1998): 1486-1488, at 1486.
24. As Roberts summarizes: "...an act of paternalism in psychiatry is commonly justified by suggesting that the person who is subject to it has a mental illness and cannot act autonomously and that the act ensures good, that is, it is beneficent and/or prevents harm, that is, it is nonmaleficent." M. Roberts, "Psychiatric Ethics; A Critical Introduction for Mental Health Nurses, "Journal of Psychiatric and Mental Health Nursing 11, no. 5 (2004): 583-588, at 584. See also Winslade, who argues that ".valuing patient autonomy presupposes a reasonable degree of patient competence. In the typical encounter between psychiatrist and patient in the acute care psychiatric hospital, patient competence is likely to be compromised. A patient may meet a legal definition of competence, such as being aware of time, place and purpose, of the psychiatrist's diagnosis and even of having a problematic mental state. Yet, his or her competence - in the sense of a capacity for informed and rational choice - is likely to be more impaired than that of the typical medical patient as a result of, for example, well delineated and well-defended delusional thinking, conflicted emotions, or selective repression. Thus, the doctor-patient relationship in psychiatry is likely to involve a patient whose ability to act autonomously is limited and a physician whose inclination to act paternalistically is considerable." W. J. Winslade, "Informed Consent in Psychiatric Practice: The Primacy of Ethics Over Law, "Behavioral Sciences & the Law 1, no. 4 (1983): 47-56, at 50.
25. In Rennie v. Klein (720 F. 2nd, 266, (3rd Cir. 1983), the court found a qualified right for involuntarily committed patients, who are competent, to refuse medication. The New Jersey administrative practice of obtaining a second psychiatric opinion in cases of patients who refuse treatment was judged as adequate protection for this right.
26. Rogers 478 F. Supp. at 1361 and 1367.
27. Following detailed discussion regarding possible participation in a double-blind research protocol, a questionnaire designed to assess the level of comprehension of the information essential to informed consent was administered. "Items assess patients' knowledge of the following: specific details and overall goals of the study, patients' choices as participants in the study, doctors' responsibilities to the study, and the potential risks of antipsychotic medications. Also, the Informed Consent Survey inquires about the subject's understanding of his or her physician's dual role as both clinician and researcher. In cases where the patient did not respond correctly to an item of the questionnaire, that portion of the consent form was re-explained to him or her, and the Informed Consent Survey was then readministered. This procedure was repeated until the patient answered all items of the survey correctly, at which point the informed consent form was signed. The Informed Consent Survey was readministered 7 days later. If a patient failed to understand a critical item at this 1-week postconsent quiz, the item was explained until the patient reported that he or she grasped the concept and answered the survey item correctly. If a patient could not answer the critical questions correctly, he or she was excluded from participation in the research protocol." D. A. Wirshing, W. C. Wirshing, S. R. Marder, R. P. Liberman, and J. Mintz, "Informed Consent: Assessment of Comprehension, " American Journal of Psychiatry 155, no. 11 (1998): 1508-1511, at 1509.
28. See Appelbaum, supra note 24, at 1487.
29. The American Psychiatric Association identifies the four general abilities as components of standards for determining whether patients are competent to make their own decisions. "Ability to evidence a choice. This is the least stringent component. Subjects may fail to demonstrate this ability either because they are unable to reach a decision or because they are unable effectively to make their wishes known. Ability to understand relevant information. This component, embraced by every jurisdiction, compromises an ability to comprehend information disclosed by the investigator in the informed consent process. Ability to appreciate the situation and its likely consequences. Here, subjects are required to apply to their own situations information that they may have understood in the abstract (e.g., acknowledging that they may not receive the treatment that they or their physicians would prefer). Denial, delusions, and psychotic levels of distortion can impair appreciation, as can any condition that limits understanding. Ability to manipulate information rationally. This component focuses on subjects' abilities to employ rational thought processes to compare the risks and benefits of the options with which they are faced. It examines the process, not the outcome of their decision making." The American Psychiatric Association, "Guidelines for Assessing the Decision-making Capacities of Potential Research Subjects with Cognitive Impairment, " APA Document Reference No. 980011 (1998): at 1-2; see also, P. J. Moberg and K. Kniele, "Evaluation of Competency: Ethical Considerations for Neuropsychologists, "Applied Neuropsychology 13, no. 2 (2006): 101-114.
30. D. L. Ambrosini and A. G. Crocker, "Psychiatric Advance Directives and the Right to Refuse Treatment in Canada, " Canadian Journal of Psychiatry 52, no. 6 (2007): 397-402; A. M. Scheyett, M. M. Kim, J. W. Swanson, and M. Swartz, "Psychiatric Advance Directives: A Tool for Consumer Empowerment and Recovery, "Psychiatric Rehabilitation Journal 31, no. 1 (2007): 70-75; M. M. Kim, R. A. Van Dorn, A. M. Scheyett et al., "Understanding the Personal and Clinical Utility of Psychiatric Advance Directives: A Qualitative Perspective, "Psychiatry: Interpersonal & Biological Processes 70, no. 1 (2007): 19-29.
31. "Psychiatric Advance Directive: Patients Plan for When They're Not Competent, " Medical Ethics Advisor 24, no. 5 (2008): 49-52, at 50; see also "Making the Most of Psychiatric Advance Directives, "Harvard Mental Health Letter 24, no. 6 (2007): 1-3; S. S. Wang, "Helping Mental Patients Gain Some Control Over Treatment, "Wall Street Journal, November 27, 2007, at D1.
32. For example, if the incompetent adult patient has not appointed an agent under a durable power of attorney for health care, or other appropriate order, Texas defaults to a family-oriented consent procedure. The default is family-oriented in that the authorized decision-makers are what are characterized in Texas law as "qualified relatives" (Texas Statute, §166.081 [9]). Such qualified relatives are stipulated as being in the following order of priority: the patient's spouse, the patient's reasonably available adult children, the patient's parents, or the patient's nearest living relative (Texas Statute, §166.039 [b]). While the law requires that the family member's decisions be based on knowledge of what the patient himself would want, if known, the qualified relative can de facto interpret the patient's wishes in terms of the surrogate's wishes, as long as these do not seem out of place to the physician. In Texas the burden of proof that the qualified relative accurately reports the wishes of the patient is the least stringent at law: a mere preponderance of proof. Texas law permits significant medical decisions to be made within the context of the family, unless the individual has taken prior specific steps to avoid such a circumstance.
33. As Engelhardt notes, "If others are likely to contract a disease if left unvaccinated and spread it to innocent individuals who cannot vaccinate themselves or otherwise protect themselves, force may be justified to require vaccination in order to protect individuals who otherwise would be brought into contact with the disease without their consent, without an opportunity to avoid the contact, and without an opportunity to avoid contracting the disease." See Engelhardt, supra note 19, at 365.
34. According to the American Lung Association, in the period from 1993 to 2002, patients with extensively-drug resistant tuberculosis were some 64% more likely to die or have treatment failure than patients with ordinary tuberculosis. American Lung Association, Tuberculosis Fact Sheet, May 2007, available at <> (last visited September 8, 2010).
35. O'Connor v. Donaldson 422 U.S. 563 (1975) at 475-476.
36. J. Minster and A. Knowles, "Exclusion or Concern: Lawyers' and Community Members Perceptions of Legal Coercion, Dangerousness and Mental Illness, " Psychiatry, Psychology, and Law 13, no. 2 (2006): 166-173; see also B. A. Pescosolido, J. Monahan, B. Link, A. Steuve, and S. Kikuzawa, "The Public's View of the Competence, Dangerousness, and Need for Legal Coercion Among People with Mental Health Problems, "American Journal of Public Health 89, no. 9 (1999): 1339-1345; L. Brophy and F. McDermott, "What's Driving Involuntary Treatment in the Community? The Social, Policy, Legal and Ethical Context, "Australasian Psychiatry 11, Supp. (2003): S84-S88.
37. C. Wallace, P. E. Mullen, and P. Burgess et al., "Serious Criminal Offending and Mental Disorder: Case Linkage Study, " British Journal of Psychiatry 172, no. 6 (1998): 477-484.
38. New York state passed Kendra's law in 1999, (section 9.60 of the Mental Hygiene Law) which permits a psychiatrist or a relative involuntarily hospitalize a mentally ill individual who (1) has a history of violence, (2) who will not take his medication, and (3) who has been hospitalized within the past three years. For discussion see Pense, supra note 13, 303; for a summary of the law from the New York State Office of Mental Health see <> (last visited September 8, 2010).
39. S. Rosenman, "Psychiatrists and Compulsion: A Map of Ethics, " Australian and New Zealand Journal of Psychiatry 32, no. 6 (1998): 785-793, at 786.
40. T. Szasz, "The Danger of Coercive Psychiatry, " American Bar Association Journal 61, no. 10 (1975): 1246-1248, at 1248; see also, T. Szasz, "Protecting Patients against Psychiatric Intervention, "Society 41, no. 3 (March/April 2004): 7-9; T. Szasz, "Psychiatry and the Control of Dangerousness: On the Apotropaic Function of the Term 'Mental Illness, '"Journal of Social Work Education 39, no. 3 (2003): 375-381.
41. "This type of policy tends to be applied disproportionately to populations marginalized by race and poverty Policies supporting mandated treatment are made by legislators andjudges, often based on perceptions of public concern." A. Watson, P. W. Corrigan, and B. Angell, "What Motivates Public Support for Legally Mandated Mental Health Treatment?" Social Work Research 29, no. 2 (2005): 87-94.
42. R. Wynn, "Coercion in Psychiatric Care: Clinical, Legal, and Ethical Controversies, " International Journal of Psychiatry in Clinical Practice 10, no. 4 (2006): 247-251.
43. Among the leading causes of death for 2003, the Center for Disease Control (CDC) lists 65, 163 deaths due to influenza and pneumonia. The CDC estimates that between 5% and 20% of U.S. residents suffer from influenza each year, more than 200, 000 require hospitalization, with more than 36, 000 Americans dying yearly from influenza complications. Center for Disease Control, "Influenza (flu): Questions & Answers: The Disease, " 2007, available at <> (last visited September 8, 2010). Note, the U.S. does not forcibly inoculate for influenza and pneumonia, rather it stipulates classes of high risk persons, and recommends that they and others should likely seek immunization.
44. See M. J. Cherry, Kidney for Sale by Owner: Human Organs, Transplantation, and the Market ( Washington, D.C. Georgetown University Press, 2005).