"Said I, `But You Have No Choice’”: Why a Lawyer Must Ethically Honor a Client’s Decision about Mental Health Treatment Even if it is Not What S/he Would Have Chosen

Michael Perlin, J.D.

This presentation will include a discussion and recommendations for circumstances in which the client’s direction is in opposition to “best interest” or expert testimony and includes a discussion of ethics and legal decisions surrounding such situations.
Goals for this Presentation:

  1. To remind attorneys that honoring the client’s direction is paramount
  2. To provide the legal, ethical background for dealing with such situations

Perlin, Michael L. and Weinstein, Naomi, 'Said I, 'But You Have No Choice': Why a Lawyer Must Ethically Honor a Client's Decision About Mental Health Treatment Even if It Is Not What S/He Would Have Chosen (August 23, 2016). NYLS Legal Studies Research Paper No. 2828288. Available at SSRN: https://ssrn.com/abstract=2828288 or http://dx.doi.org/10.2139/ssrn.2828288. Full text (pdf)

Further reading:

Perlin, Michael L. and Weinstein, Naomi, 'Friend to the Martyr, a Friend to the Woman of Shame': Thinking About the Law, Shame and Humiliation (January 17, 2014). Available at SSRN: https://ssrn.com/abstract=2380701 or http://dx.doi.org/10.2139/ssrn.2380701.

Perlin, Michael L., 'For the Misdemeanor Outlaw': The Impact of the ADA on the Institutionalization of Criminal Defendants with Mental Disabilities. Alabama Law Review, Vol. 52, P. 193, 2000. Available at SSRN: https://ssrn.com/abstract=262391.

Perlin, Michael L., 'Too Stubborn to Ever be Governed by Enforced Insanity': Some Therapeutic Jurisprudence Dilemmas in the Representation of Criminal Defendants in Incompetency and Insanity Cases. International Journal of Law and Psychiatry, Vol. 33, No. 4/5, 2010; NYLS Legal Studies Research Paper No. 09/10 #15. Available at SSRN: https://ssrn.com/abstract=1523944.

Salzman, Leslie, Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act (December 14, 2009). Cardozo Legal Studies Research Paper No. 282; University of Colorado Law Review, Vol. 81, p. 157, 2010. Available at SSRN: https://ssrn.com/abstract=1567132.