And My Best Friend, My Doctor, Won't Even Say What it is I've Got: The Role and Significance of Counsel in Right to Refuse Treatment Cases
Michael L. Perlin
New York Law School
San Diego Law Review, Forthcoming
For the past three decades, scholars have carefully considered the scope of the right of involuntarily committed psychiatric patients to refuse the administration of medication from a rich array of perspectives, including, but not limited to, clinical perspectives, civil libertarian perspectives, philosophical perspectives, and political perspectives. Yet, virtually all of this - remarkably - passes over what I believe is the single most important issue in real life. This issue is the most relevant to the actual (as opposed to paper) existence of the right and the actual (as opposed to paper) implementation of that right: the availability and adequacy of counsel to represent patients seeking to assert this right to refuse. In spite of the extensive literature and case law that has developed in this area of the law, the topic remains egregiously under-discussed and under-litigated.
Simply put, if active, trained counsel is not provided for patients seeking to interpose this right, then the right becomes nothing more than a paper document: useless and meaningless (and perhaps, counterproductive) in the real world, and yet another in a series of shameful pretexts that dominate this area of the law.
In this paper, I discuss: (1) the generally mediocre job done by lawyers in the involuntary civil commitment process; (2) the equally mediocre job done in the right to refuse treatment process, especially where both courts and legislatures have failed to articulate a universal right to counsel in right to refuse cases;(3) the reasons why counsel is so critical in such cases; (4) the significance of what I call sanism and what I call pretextuality, and the application of a therapeutic jurisprudence mode of analysis to the topic in trying to understand all of this, and (5) these recommendations for the future:
- Each state should adopt procedures that guarantee the appointment of effective, trained counsel to represent patients at both involuntary civil commitment hearings and at right to refuse treatment hearings.
- State attorneys general and county counsels should insist that lawyers representing hospitals in such cases be equally effective and trained.
- Judicial educational agencies such as the National Judicial College should offer regular courses in all aspects of the right to refuse treatment for state court judges.
- All participants in the system should acknowledge the ways that sanism and pretextuality corrupt the judicial process (especially this aspect of the judicial process), confront that corruption, and take seriously the significance of that corruption.
- A therapeutic jurisprudence lens should regularly be applied to this entire area of the law, and courts should begin to consider the issues discussed here through a therapeutic jurisprudence filter.
- Scholars should seriously consider adding this issue to their research agendas.
Number of Pages in PDF File: 49
Keywords: Psychiatric institutionalization, right to refuse treatment, role of counsel
Date posted: January 24, 2005
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