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Refusing the Right to Refuse: Coerced Treatment of Mentally Disordered Persons

San Diego Legal Studies Paper No. 07-73

Grant H. Morris, REFUSING THE RIGHT TO REFUSE: COERCED TREATMENT OF MENTALLY DISORDERED PERSONS, Vandeplas Publishing, November 2006

202 Pages Posted: 11 Oct 2006  

Grant H. Morris

University of San Diego, School of Law - Professor of Law Emeritus

Abstract

Under the doctrine of informed consent, if a person is competent to understand the risks, benefits, and alternatives to proposed treatment, that person is allowed to decide whether to accept or reject the proposed treatment. Informed consent is not required if the person is incompetent or if an emergency arises that necessitates treatment to save the person's life.

Nevertheless, various devices are used to deny mentally disordered persons their right to refuse treatment even when they are competent decision makers and even when no emergency exists. For example, some courts substitute a limited due process model for a full due process model, allowing doctors to decide whether the proposed treatment is appropriate, rather than requiring a court's determination of the patient's competence to withhold consent. Some states substitute the decision to involuntarily commit the patient, or a decision to appoint a guardian or conservator to assist the patient, for the requirement that the patient be incompetent to make treatment decisions. In some states, the limited emergency exception to the requirement of informed consent has been expanded to allow involuntary treatment of dangerous patients - without requiring that an emergency exists.

In some states, the requirement of voluntary and informed consent has been replaced by uninformed or coerced assent. For example, if the patient does not object to the treatment, some courts have allowed doctors to medicate the patient - without informing the patient of the risks, benefits, and alternatives to that medication and obtaining the patient's informed consent to its administration. Outpatient commitment laws have been enacted - such as Kendra's Law in New York - through which courts order mentally disordered persons to accept medication, even though such persons are not subject to involuntary civil commitment. These various devices so erode the competent patient's right to autonomous medical decision making that the right of competent, though mentally disordered, persons to refuse treatment is, in reality, refused.

Keywords: antipsychotic medication, competency, forensic psychiatry, informed consent, insanity-jurisprudence-United States, involuntary treatment, law-psychological aspects, medical jurisprudence, medicine-decision making, mental disorder, mental health, mental health laws, mental illness, mentally ill

JEL Classification: K00, K1, K10

Suggested Citation

Morris, Grant H., Refusing the Right to Refuse: Coerced Treatment of Mentally Disordered Persons. ; Grant H. Morris, REFUSING THE RIGHT TO REFUSE: COERCED TREATMENT OF MENTALLY DISORDERED PERSONS, Vandeplas Publishing, November 2006. Available at SSRN: https://ssrn.com/abstract=936440

Grant Harold Morris (Contact Author)

University of San Diego, School of Law - Professor of Law Emeritus ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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