34 Pages Posted: 24 May 2005
This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as sanism, which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin's characterization of the problem and suggests other reasons for the phenomenon, including a belief that the civil commitment decision proved that the person was incompetent to make treatment decisions, and a belief that the decision on what treatment should be administered is a medical judgment to be made by the patient's doctor and should trump any patients' rights claim. The article concludes by considering whether aggressive advocacy would substantially improve the situation. Most patients accept - or are coerced into accepting - medication that their doctor prescribes. Because competency hearings are only conducted for those patients who assert a right to refuse medication, few patients would be affected by more aggressive attorney advocacy. Those patients who are successful in resisting coerced treatment are likely to be released from the hospital without an improvement in their mental condition and processed through the criminal justice system when they are detained in the future.
Keywords: Mentally disabled, refusing medical treatment, sanism, civil commitment, competency hearing, advocacy, constitutional safeguards, health law, professional responsibility
JEL Classification: K10, K32
Suggested Citation: Suggested Citation
Morris, Grant H., Pursuing Justice for the Mentally Disabled. San Diego Law Review, Vol. 41. Available at SSRN: https://ssrn.com/abstract=728464