The Right to 'Just Say No': A History and Analysis of the Right to Refuse Antipsychotic Drugs

144 Pages Posted: 14 Aug 2016

See all articles by Dennis E. Cichon

Dennis E. Cichon

Barry University - Dwayne O. Andreas School of Law

Date Written: 1992


The article presents a complex history of the disordered development of the right to refuse antipsychotic drugs and attempts to analyze the complex legal, medical, and ethical issues involved. The article begins by describing the dual nature of the medication in providing therapeutic benefits while posing a substantial risk of hazardous side effects. After depicting the circumstances which led to the initial "right to refuse" litigation, the article analyzes the various legal grounds on which courts have based the right to refuse. Even when based on a constitutional source, the right to refuse is not absolute. The right must be balanced against the government's reasons for infringement. The article examines this balancing process by taking into account the private interests at stake, the level of intrusiveness presented by antipsychotic drugs, and the government's objectives behind forced treatment.

The article addresses the two governmental interests which are used to justify forced medication. First, the government’s police power interest in preventing a mentally ill individual from harming himself or others is explained. Second, the government’s parens patriae interest in caring for those individuals who are unable to care for themselves is examined. A traditional precondition to forced treatment based on the parens patriae authority is a finding that the patient is incompetent to make his own treatment decisions.

The article examines the concept of competency and describes recent medical research which documents that many drug refusals by mentally ill individuals are the product of rational and considered decisions. An emergency exception to the competency limitation on the parens patriae authority is also discussed. In addition, the article addresses whether the least restrictive alternative doctrine is applicable as another restriction on the government's ability to compel treatment under either the police power or the parens patriae authority.

Next, the issue of procedural due process is addressed. The article describes the various models of procedural review adopted by courts in refusal cases, ranging from the implementation of a full array of due process procedures to unqualified deference to institutional decision making. A detailed analysis of the appropriateness of these review systems is undertaken.

Finally, the article analyzes the substantive and procedural components of the United States Supreme Court's recent opinion on the refusal issue in Washington v. Harper. Although this decision is limited to a convicted prisoner’s right to refuse antipsychotic drugs, its interpretation could impact thousands of mentally ill and developmentally disabled individuals confined in civil institutions.

In addition, as one commentator noted, the ramifications of Harper could extend to "even larger numbers of individuals residing in the community who are released from civil hospitals, diverted from the criminal justice system, or paroled from prison, on the basis that they accept treatment as a condition of their release." The article, therefore, concludes by examining the potential effects of the Harper decision on the right of an individual to refuse antipsychotic drugs outside the prison environment. This examination includes an analysis of the Supreme Court's recent opinion in Riggins v. Nevada in which the Court addressed the right of a pretrial detainee to refuse the administration of antipsychotic drugs.

Keywords: antipsychotic, medication, therapeutic, side effects, parens patriae authority, Harper, civil hospitals, criminal justice system, antipsychotic drugs, mentally ill, mental illness, civil hospitals, Riggins v. Nevada, pretrial detainee, right to refuse

Suggested Citation

Cichon, Dennis E., The Right to 'Just Say No': A History and Analysis of the Right to Refuse Antipsychotic Drugs (1992). Louisiana Law Review, Vol. 53, No. 2, 1992, Available at SSRN:

Dennis E. Cichon (Contact Author)

Barry University - Dwayne O. Andreas School of Law ( email )

6441 East Colonial Drive
Orlando, FL 32807
United States

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