Coercion or Consent: The Right to Object To Psychiatric and Medical Treatment

Dennis Feld, J.D., Arthur Baer, J.D., Michael Recco, J.D., Katherine Blake Davies, J.D.

I. Background

Persons in institutional settings are regularly subject to efforts to compel treatment over objection in derogation of liberty. The forced administration of drugs, electroconvulsive therapy, and other medical procedures, over a patient’s objection, implicates the fundamental rights of persons who are involuntarily committed in psychiatric hospital, or under involuntary treatment orders in prison. Such treatment typically involves medication over objection but can also involve the administration of electro convulsive therapy (shock treatment), and even highly personal and intrusive medical treatment such as amputations.

II. Objectives

This workshop will explore the constitutional rights of individuals to make treatment decisions, the legal framework of forced treatment orders, and how to attack claims of incapacity, least intrusiveness and medical appropriateness, and the extended or open-ended duration of forced treatment orders.

We will explore these issues using as primary examples, cases of the forced drugging of prison inmates, of individuals confined in psychiatric units and hospitals, and of electroshock sought by a state hospital. We will be explore legal advocacy, including preparing for a case and cross-examination. How one may attack assertions of incapacity to make treatment decisions, claims that the treatment is the least intrusive alternative and medically appropriate.

We will explore the relationship between informed consent and in substance, the consent sought and which may be given by a court to permit treatment over objection. We will also discuss narrow tailoring, taking into consideration the patient's best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment, and less intrusive alternatives In one example, we will consider the legal rights of prisoners to object to forced medication, in two examples, the duration and delegation of decision-making to treatment providers to continue compelled treatment; and a third, the implications of the FDA’s recent final order on ECT to support advocacy against compelled ECT.

After an initial presentation using case examples and possible approaches; the workshop will invite participants to share ideas about possible strategies to advocate on behalf of defendants in the above circumstances. Among the areas we will cover are:

III. Legal and Advocacy Strategies A, Demonstrating the Fundamental Right to Object to Treatment Decisions as the Baseline for Determinations for Treatment Over Objection B. Challenging claims of incapacity to make treatment decisions.

  1. How involuntary commitment is distinct from involuntary treatment. .
  2. The continuum for viewing treatment determinations.
  3. How disagreements with treatment providers is not synonymous with incapacity.
  4. How collateral perceptions are distinct from those in deciding a particular treatment.

C. Challenging the over intrusiveness of the proposed treatment.

  1. What alternatives were considered and tried; which were not and why not?
  2. Evidence of drug interactions; polypharmacy; use of physical and chemical restraint in administration of the proposed treatment.
  3. Coercion and its undermining effect on the treating relationship
  4. Challenging proposed treatment as medically inappropriate
  5. Using FDA and other evidence to challenge proposed medication and ECT
  6. Challenging length of orders
  7. Informed consent as a baseline for sufficiency of evidence.
  8. How to respond to assertions that forced ECT is less intrusive than forced psychotropic medication, and issues (including ethical) that may arise in arguing that medications are the less intrusive alternative.

D. Obtaining and Using Experts to Controvert the Testimony of Treatment providers

IV. Learning Goals:

A. Developing Effective Legal Strategies - Understanding the Possibilities for Use of New Legal Approaches B. Developing Effective Advocacy Strategies - Understanding the Possibilities for Use of New Advocacy Strategies C. Brainstorming to Begin to Develop An Outline of Long Term Strategies to Confront Involuntary Treatment Orders

This workshop with explore these issues using examples from actual practice.