Beyond Forced Psychiatry

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Beyond Forced Psychiatry: 
The Rights to Refuse and Explore Alternatives

This article by Jonah Paisner discusses critical issues related to using legal force to compel compel psychiatrically ill people to submit to treatment.   As the concept of therapeutic jurisprudence is widely implemented through a growing national network of drug courts, it's important to reflect upon the rights of addicted people in relationship to being required to submit to treatment.  This article provides a summary of the legal and clinical issues that have emerged in relationship to the legally forced treatment of psychiatrically ill individuals.

Beyond Forced Psychiatry: 
The Rights to Refuse and Explore Alternatives

By Jonah Paisner
May 1999

 

Table of Contents

 I. Introduction

II. Social Factors Leading to Force

III. Catalogue of Forced Treatments

IV. Liberty/Autonomy Jurisprudence

V. Alternative Treatment

VI. Conclusion

Endnotes

 

I. Introduction

 The chief means of distinguishing human beings from all other animals (and plants and minerals for that matter) is our facility and possession of free 0will (1).  Various religious (2) and philosophical belief systems (3) impose a contrary matrix which may be called determinism.  For what should be apparent reasons, there is no resolution between these mutually exclusive paradigms. Our social, economic, personal, and global interactions, as such, seem to operate in a flux: at one moment embracing the former, then when convenience or necessity strikes, oscillating to the latter.  Wholesale shifts between the two imperceptibly underlay all that we do.

 

Yet whether human behavior is governed by free will or determinism is of crucial significance to an ordered society. Quite obviously, if everything we do is determined by some prior cause - genetics (4) , temporary brain chemistry (5) , trained response (6) , the supernatural (7) etc. – then responsibility, a bedrock of the social compact, goes up in a wisp of smoke. How can we deter, rehabilitate, or punish those who violate the civil and criminal laws if we are all as a gaggle of lemmings - acting on orders from without? In fact, the very presence of laws which determine culpability based on action as well as intent, clearly reflect a view of human behavior directed by free will.

 

This paper explores the social, legal, and therapeutic limits on the obliteration of mental patients' free will. First will be explored the social forces which seem, to many, to necessitate forced psychiatry. Then a continuum of invasive treatment methods will be introduced and discussed. Next will come a review of the liberty/autonomy jurisprudence, which will show that there is an emerging basis in legal precedent for a "right to refuse" treatment. Finally, proposals for effective, manageable, and human alternatives to forced psychiatry will be offered and evaluated.

 

One psychiatrist summarizes all mental illness as the basic inability to "work and love." (8) Indeed the beautiful simplicity and humanity of this notion is appealing. Such a belief posits a larger framework in which individual maladies occurs: with the interactional and the environmental.  Presumably these are factors which channel into the diagnosis of "mental illness." But to this delicate flower of the human psyche, forced psychiatry is a truckload of fertilizer. To grow and nurture those among us who are suffering, we need more than industrial feed: the air, water, and sunshine so necessary to recovery must literally, and therapeutically, return to psychiatry.

II. Social Factors Leading to Force

The social compact [of behavior] necessitates that human beings must at times check their behavior, and cool their heads before acting. We believe that a greater good can come from rational and diplomatic interaction among us, that order begets a community defined by freedom and opportunity. So for obvious reasons, when a raving lunatic runs naked down a major city street screaming obscenities and making fearsome threats, the neighborhood recoils. A desperate though silent voices boils: "make him go away!" 

As the social web races outward -- the perimeter of the human circle expanding by leaps and bounds -- our compartmentalized mode of interaction dominates. Whereas in the past we may have seen the madman as a father, brother, or neighbor, now he is among the loathsome "other" who sully our public places. We have no allegiance to his kind, perhaps at best moved by a nascent and evolving greater social consciousness: such compassion, in stark contrast to the anonymous and ever bursting social web, though, is constricted and suffocated by the very demands of complex society that feed the explosion. When mental disability takes hold of another, personal sirens wail in our head, and cease only when actual sirens remove the madman.

In the legal world there are two traditional bases for the use of forced treatment by the state: parens patriae and police power. (9)  By no means an accident, the standard in most states for the involuntary commitment of an allegedly mentally ill person is "danger to self or others" and mental illness. (10) 

Parens patriae addresses the first of these two dangers, and permits the State to assumes a role of limited guardian for the purpose of proscribing mental health treatment for one who may endanger himself if left to his own devices. 

Police power addresses the danger to the greater community: the state may intervene and attempt to arrest the behavior of a person who poses an imminent danger to fellow citizens. In most cases this is accomplished by removing the person from the scene and taking her to a hospital or a holding cell. The argument is that the greater good is bolstered by protecting society, and likewise protecting the insane from themselves, as it were.

Once in the hospital setting, involuntary psychotropic medication is often administered upon the mental patient for the simple convenience of the staff. (11)  Quite reasonably a prime objective of the hospital administration -- which may be frequently understaffed -- is to maintain order on the ward. 

Within the hospital setting, police power is used to justify heightened doses of antipsychotic drugs to subdue unruly patients. The internal dynamics of the ward, as such, must be considered in the context of coercive treatment. However, psychiatric hospitals have other means at their disposal for controlling such troublesome individuals, such as placing them in more restrictive wards. These and other alternatives will be further explored in the section on alternatives.

Again, remediation and control are central to mechanism of social control. Society imposes massive pressure to conform to the central, dome-shaped slope of the bell curve referred to as "normal." (12) Abnormal behavior, mathematically judged and consigned to the extremities of the curve, is met with a powerful response. Removal from society, and convenient somatization; these are efficient tools with which to maintain the dominant and "consensual" (13) paradigm. But amid well-meaning, albeit desperate, efforts to maintain order, needless violation of basic rights to autonomy occur. Furthermore, there is a cheapening effect to all human rights when the bodily integrity of a minority vulnerable in society are ignored. (14)

In a "corrupt society" where mental patients are disproportionately of color, and occupy the lowest socioeconomic strata it cannot be ignored that insanity is a sociologic as well as personal crisis. (15) Any attempt to treat the mental disabilities of a single person must therefore acknowledge and take into account larger social forces in play. What psychiatrist would endeavor to "cure" the anxieties of one so in debt that bill-collectors are calling at all hours of the day without frankly admitting that a lack of funds seems the chief contributing cause? In other words, treatment too often loses sight of the forest -- so fixated on a single tree, or even just a leaf, psychiatry forgets the whole.

III. Catalogue of Forced Treatments

Although little known to most members of modern society, the methods of involuntary mental health treatment are varied, and can be plotted along a "continuum of intrusiveness." As articulated by Professor Bruce Winick in his seminal work in this area (16), the actual methods employed when forcible treatment takes place begin least intrusively with psychotherapy, then to behavior modification, psychotropic medication, electroconvulsive therapy, electronic stimulation of the brain, and lastly, and most intrusively, psychosurgery. (17) 

Delving into these procedures and their effects is necessary for both legal and therapeutic reasons. For one, different individual liberty rights are triggered/violated depending on the method used. As well, alternative therapies are suggested by the goal(s) at work behind a given treatment method. The following review briefly touches on the salient characteristics of each method.

Psychotherapy -- including psychoanalysis, other talk-therapy, and group-therapy -- is the least intrusive form of psychiatry (18) , and as such arouses minimal objections. In practice, these services are performed by psychiatrists, psychologists, and increasingly by social workers and others without M.D. or Ph.D. level training. (19) 

All types of psychotherapy have in common the fact that treatment is carried out through "talk therapy." The professional listens, makes comments and asks questions to assist the patient work through life challenges. Quite clearly, this psychiatric method, even when used in compulsion, involves nothing more than talk. And while psychological damage may conceivably occur, as far as invasiveness, therapy is at the low end.

Controversy likely surrounds behavior modification because it seeks to manipulate outward behavior directly, often throughout the use of pain, discomfort, and other negative stimuli or via denial of affirmation. Aversion therapy uses negative stimuli to train an individual away from unwanted behavior; operant conditioning withholds a benefit to encourage unwanted behavior to become "extinct." (20) But there is serious question about the effectiveness of these methods. (21) Finally, civilized society can only shutter at the barbarism of new: whether vomit inducing injections, respiratory paralysis inducing pills, or "bad behavior" shocks, many wince at the thought of organized punishment as a method of "treatment." (22)  Although not all behavior modification is so invasive, by definition it always acts to change how a person acts -- not through persuasion or suggestion as with psychotherapy -- but with a severe carrot or a stick.

Psychotropic medication, the next-most invasive means of treatment, is the first method on the continuum so far that categorically must invade the bodily privacy of the patient -- this coincides with it as the first organic method, which those remaining treatments of higher invasiveness are as well. Pills, of various sorts, act to control excessive excitation (mania), lethargy (depression), or incomprehensible behavior (schizophrenia) to name the main "diseases" of the mind. These pharmacological therapies are very invasive not only because of obvious need to ingest the pills, but because of the change in behavior they procure, as well as the side effects which may result. (23) 

While discussion of specific medications and their effects is beyond the scope of this paper, a brief mention of some notable effects is warranted. Subjective effects tending to impose upon autonomy rights of those taking psychotropic medication can include a "haze of drug-induced docility" in which "the patient remains generally unconcerned, unquestioning and much easier to manage" (24) and "has the undisputed effect of depriving the patient of the initiative and the will to resist." (25) Even more troubling are the toxic side-effects and neurological effects which accompany use. Autonomic effects include blurred vision, dry mouth and throat, constipation, dizziness, fatigue, and inhibition of ejaculation. (26) Of immense frustration to those who take psychoactive drugs is akathisia -- a feeling of motor restlessness where the patient's "bones feel as though they are jumping out of the body." (27) Considered irreversible, tartive dyskinesia is a legacy of long-term use of psychotropics; permanent effects include bizarre movements of the tongue, face, and neck. (28)

Once called "electroshock therapy", electro-convulsive therapy (ECT) has not only upgraded to a more marketing-friendly moniker, but has also changed in substance as well. Modern ECT usually takes place while the patient is anesthetized and injected with muscle relaxants so as to avoid spasms during the procedure which in the past had sometimes damaged teeth or jaw bones. (29)  Electricity is applied to the brain in such a way that a grand-mal seizure is achieved. Ostensibly used to treat depression, controversy abounds as to the memory loss effects of ECT. While proponents claim the only memory lost is that of the procedure itself, a growing body of ECT "survivors" as well as their allies insist that major unrecoverable memory loss is reason enough to outlaw ECT. (30) These anecdotal experiences have recently been given support by research conducted by a U.S. federal government agency which found persistent impairment of memory after ECT was performed. (31)

Electronic stimulation of the brain (ESB) is an largely experimental method by which  electrodes are implanted in specific know regions of the brain; when stimulated, the patient experiences particular sensations, or is provoked towards certain behavior. These stipulations can be extremely potent and behavior affecting. 32 Most significantly, ESB modifies the state of the brain directly, and induced in the patient sensory experiences, without her knowledge or ability to resist; its highly intrusive nature and possibility for abuse are cause for pause.  (33)

Psychosurgery is the last, and by far the most intrusive, method used to treat mental dysfunction. While "lobotomy" is but the most commonly know type of psychosurgery, all forms use cuts or damage to the brain tissue in an attempt to alleviate unwanted and troublesome behavior; the practice likely originated from the belief that mental illness originated from structural defects in the brain itself. (34)  But unlike the complex chemical effects of psychotropic drugs, psychosurgery is a blunt instrument, indeed: "although lobotomy rendered patients calm, it also resulted in intellectual deterioration and personality changes, including apathetic, irresponsible, and asocial behavior, as well as general blunting of emotional responsiveness and impairment of judgment, initiative, and creativity." (35)  Due to its massively invasive nature, irreversibility, and stultifying effect, psychosurgery is rarely performed today, but still poses a tremendous danger as a form of institutional social control. (36)

IV. Liberty/Autonomy Jurisprudence

In the words of one commentator, at the extremes, the controversy over forced treatment is a battle between a "therapeutic orgy" and the "right to rot." (37) But forgoing name-calling for the moment, this section will explore the maximum personal autonomy rights as can be found in the law – saving consideration of what treatment, if any, may fill the gap (and avoid the "rot") left by a decision to refuse psychiatric treatment for the next section on alternatives. Note that the use of law and legal means to achieve changes in treatment is encompassed in a fairly recent body of law entitled therapeutic jurisprudence (TJ); this paper views law through this "lens" and uses the tools of TJ (observation of the therapeutic and counter-therapeutic effects of law) in the following analysis. (38)

Although at present involuntary psychiatric treatment is widespread, there is a rising body of scholarly analysis and case law that supports the "right to refuse" mental health treatment under numerous circumstances. This section will begin with an exploration of the constitutional foundations that serve to undergird the right to refuse. Then the multiple paths of the modern liberty/autonomy jurisprudence will be sketched. Arguments which are most compelling -- and promising -- will be placed under close scrutiny to determine if their adoption by the U.S. Supreme Court or the various state supreme courts and legislatures will be imminently forthcoming.

Doctrine of Informed Consent

As a predicate to examination of modern autonomy rights, a mention of the doctrine of informed consent is crucial. Loosely stated, informed consent serves to promote self determination and rational decision making of the individual. (39)  Under the doctrine, a practitioner who seeks to offer a given treatment must tell the patient:

1)    all risks and benefits of the treatment; 

2)    any side effects or complications; 

3)    the likelihood of improvement with and without the treatment; 

4)    any alternative methods available. (40) 

Although there is heated debate whether those who are involuntarily committed must be afforded the protections of informed consent, courts generally presume they are competent and that the doctrine applies. (41)

Where mental health professionals seek to impose treatment without informed consent --especially when against the express wishes of the patient -- government action is implicated and relied upon for authority.  As described in the introduction, the state parens patriae and police powers, which most likely already have come into play during an involuntary commitment, now bolster treatment  decisions (42); the health professional's very acts carry the weight of the government. Here the unwilling patient and health professional, now an agent of the state, enter the arena of the U.S. Constitution, which dictates an interplay of competing individual and government interests.

The Bill of Rights -- the first ten Amendments to the Constitution – are understood to restrict action by the federal government to guard against a tyrannical encroachment of individual rights. (43) The First Amendment provides, inter alia, "Congress shall make no law *** abridging the freedom of speech." (44) Through the Due Process clause of the Fourteenth Amendment, states (and mental hospitals in whom the involuntarily committed reside) are subject to the limitations of the First Amendment as well as much of the Bill of Rights. (45) Beyond protecting the literal right to verbalize and write, the First Amendment is interpreted expansively. (46)

In the context of involuntary treatment, courts have held that the "freedom of belief," "freedom of mind," and "freedom of thought" are safeguarded by the First Amendment; its language has been used to resist forced psychotropic drugs, (47) ECT, (48) and psychosurgery (49).  A significant case in this area is Whiney v. California (50) where Justice Brandeis wrote a concurring opinion that development of "facilities" and the "freedom to think as you will" ought to be encouraged and protected by the state in connection with discovering and spreading "political truth." (51) Similarly, in Griswold v. Connecticut Justice Douglas recognized "freedom of thought" as an integral aspect of free speech. (52)  Clearly, if the side effects described in the invasive continuum above are a guide, involuntary psychiatric treatment -- especially the most invasive varieties -- are subject to the limitations of the First Amendment as against the freedom the think. As such, the dulling, immobilizing, memory-loss inducing, and disorienting effects of these methods are a clear violation of free expression rights protected by the First Amendment.

Although there are strong arguments (53) to suggest the Eighth Amendment may be an appropriate instrument for the general refusal of involuntary psychiatry as "cruel and unusual," recent cases have rejected this approach. (54) Outside of the prison context, courts narrow applicability of the amendment to treatment for two purposes: discipline and punishment. In other words, the day-to-day administration of psychiatric treatment does not rise to a level falling under the Eight Amendment ambit until significantly "un-hospital-like" purposes are involved. As described above in the section on treatment methods, certain drugs used in aversion therapy were found to violate the Eight  Amendment even though characterized as "treatment" by the program. (55)  Maintaining the security of a ward, under state police power, is justified. However, when an infraction takes place and the discipline is via intrusive treatment methods -- when less invasive alternatives such as seclusion or restraint is available -- this is punishment and ought to be restricted by the amendment. (56) The consideration of various means of accomplishing a state action lead to a discussion of the substantive due process protections which afford a right to refuse.

Under the Fifth and Fourteenth Amendments, government may not deprive a person of "life, liberty, or property without due process of law." (57) Modern application of substantive due process to noneconomic rights began with Griswold v. Connecticut. (58) There the Court found a "right to privacy" which exists in the "penumbras" formed by emanations from the Bill of Rights. (59) 

From these airy proclamations, seemingly of obscure origin, the Court spoke unmistakably with Roe v. Wade, the famous abortion case, in which it proclaimed a right of privacy derived from substantive due process found in the Fourteenth Amendment's notions of personal liberty and state restriction. (60)

According to the substantive due process strict scrutiny test, if the Supreme Court finds a fundamental right at stake, the governmental interest must be "compelling" to justify interference with that right. (61)  Recent abortion cases have addressed the nature and consequences of state action against privacy, even when adjudged to be compelling: the state must use the least intrusive means available (62), and action may not impose an undue burden (63) upon the individual. 

While holding that forced antipsychotic medication in the prison setting invades a "substantial liberty interest", the Court does not indicate whether this interest rises to the level of fundamental, nor how the analysis applies outside of prisons. (64)  But since the rights of the civilly committed are presumptively higher than that of prisoners (65) the nature of the right to refuse is higher than "substantial" possibly as high as "fundamental."  This should trigger a higher standard of review over involuntary treatment by courts than merely the deferential "rational relationship" test.

But moving from the sublime to the utterly practical, how does a scholarly parsing of judicial review standards to protect "privacy" translate into a concrete right to refuse mental health treatment? Presently, a pack of Supreme Court cases (66) -- none concerning the on-all-fours issue of the mental patient's right o refuse treatment -- are relied on by lower courts to advance the constitutional basis for a right to refuse; examples follow. 

In Woodland v. Angus, a pre-trial detainee was found incompetent to stand trial and made a patient in a mental hospital; the court held forced psychotropic drugs used to make him competent violated substantive due process. (67) 

In Rogers v. Commissioner the Supreme Judicial Court of Massachusetts found a right to refuse psychotropic medicine based on the personal autonomy guarantees of the constitution and tort law. (68) 

Finally, in New York City Health & Hospitals Corp. v. Stein, the court reasoned that the constitutional privacy right permits a patient not adjudged incompetent to refuse ECT. (69)

Clearly, since the Supreme Court has withheld judgment of the right to refuse, discretion rests with lower courts; unfortunately all too often this leaves recipients of forced treatment at the mercy of local judges who may not rule on the side of autonomy. While a right to refuse can be found, it will likely take a confluence of conflicting rulings in the circuit courts before the Court can ratify it, and ensure the right unmistakably flows down to all mental patients.

V. Alternative Treatment

 It is anticipated that at this point, the reader's exposure to questionable social causes for force, the spectre of damaging invasive methods, and an emerging right to refuse all lead her inextricably, and quite naturally, to this section. Necessarily, much legal analysis happens in a "rights-vacuum", contrary to the very notion of a therapeutic jurisprudence, where the consequence of a finding of a right to refuse -- what alternatives will the patient exercise? -- is left unasked. This paper attempts a principled transition from the current paradigm to one where both police power and parens patriae derived state interests in treatment are accommodated. Unwilling to settle for unmanageable anarchy nor "rotting with their rights on", (70) this section explores means to maintain order on the ward as well as artful healing of those unable to heal on their own.

In recognition of the large population of involuntarily committed persons on the ward today, and the vastly understaffed and underfunded programs charged  with their administration, an immediate transition to the least invasive and least restrictive means of treatment is utter folly.  Instead, current mental health institutions should begin by adopting minimally invasive methods for trauma and dangerousness-related patients. (See Part A, below.) Concurrently, private hospitals and state legislatures must look to the future of treatment of mentally disabled people: a change of scenery, and a return to the asylums (71) of old. (See Part B, below.)

A. Short Term - Minimally Intrusive Control and Uplifting the Ward

Faced with a psychotic patient, hospital staff get edgy.  But through creative and careful planning, mental health practitioners can avoid the need to force their patients to submit to invasive treatment. Through the use of "new" seclusion, humane restraints, nutritional methods, exercise, and light, music, and tactile therapies, people who are undergoing internal upheaval will be kept from hurting others and themselves. In the process, though, they will not be hurt by those charged with administering care. 

Seclusion is an emergency measure and should be used with great care. Reserved as a place for initial cooling off upon admittance for the grossly psychotic, or for the crisis outburst or altercation, seclusion should not be used to punish patients. Rejecting the punitive model, these "new" seclusion rooms should contain colors, and safe diversions (books or toys) that would aid in calming patients down. They should be visited regularly by staff members, who would speak to them as a person, and try to engage in short talk to develop a rapport. Such steps are crucial so the inexcusable practice of leaving patients locked up, and "forgetting" about them – with attendant worsening of psychological condition -- is eliminated. (72) Patients in seclusion must immediately begin nutritional treatment methods.

Appropriate and important for the entire ward, nutritional methods (73) consider the biochemical and nutritional aspects of both causative factors and treatment of many mental illnesses. For example, in the case of the psychotic patient, a leading scholar in the field, Eva Edelman, suggests a natural phenothiazine equivalent:

Vitamin C may be a natural tranquilizer and anti-psychotic agent. Preliminary work by Tolbert suggest that vitamin C occupies the same (dopamine) receptor sites as phenothiazine and that gram for gram it's as powerful as Haldol -- without causing tartive dyskinesia or other detrimental effects to the nervous system. (74) (citations omitted.)

Edelman also cites studies from psychiatric literature (75) to support that niacin can help schizophrenics lower their neuroleptic doses. (76) More broadly, by exploring the effects of various neurotoxins (including tobacco, caffeine, alcohol, pesticides, organic solvents, metal toxicity, antioxidants etc.) Edelman chips away at the hegemony of biopsychiatry as the only model suitable to treating the symptoms of mental dysfunction. 77 After all, if exogenous chemicals and internal biotypes (78) influence our internal chemical and biological make-up, then healing can likely result through nutritional and orthomolecular treatment methods.

Exercise, music, and other revitalizing therapy should be established as well. One clinical psychologist, in a dialogue with a practitioner of a dance therapy called Contact Improvisation (CI), commented that "the therapeutic potentialities inherent in CI open up new metaphors for change. Invitation, engagement, and initiation become exciting possibilities." (79) Clearly the staid -- some would say mind-numbing -- environment of most psychiatric wards must move away from the typically "custodial" setting, and adopt a more life affirming model.

B. Long Term - From Institution to Sanitarium

With the above short term measures slowly re-humanizing existing mental health facilities, the long term objective is none other than an institutional revolution: take away the institution, re-introduce the sanitarium. Whether called a "haven" (80) or "new asylums" (81) when conceived from the ground up, these healing centers more resemble communities than hospitals:

If we are to rebuild a more enlightened system to care for schizophrenics and other socially disabled people, a working start up model could be the kibbutzim of modern Israel. Egalitarian communes, usually based on agriculture, in which members live and work together, sharing the fruits of their labor in a non-competitive way *** [as a] sanctuary from the pressures of modern society. (82)

At present a number of private organizations embrace this model (83) ; by way of example, a brief description of Soteria House (84) follows. Housed in a residential building in an urban setting, the staff members were chosen for their sincere interest in listening to the "seemingly irrational communications" of the patients -- first time sufferers of schizophrenic symptoms. (85) Psychotic persons are treated in ways that do not invalidate the subjective validity of their experience, and instead are sought to be understood and the "madness" integrated into their lives. (86) These ways of planting compassion in patients is a dramatic improvement over the needlessly power concentrating and control-oriented models in place today.

Sociological change in the ward ought to be matched by improved designs conducive to patient recovery. One of the most troublesome aspects of most modern hospitals is the poor quality of light, which not only may impede healing, but contribute to iatragenic malady. (87) To address such ill-conceived design defects, we might learn from the story of Mother Ann Lee. Mother Ann introduced the Shaker movement to America during the industrial revolution. 88 One who often exhibited symptoms of manic-depressive illness herself, Mother Ann's Shaker's have left a legacy of majestic illumination of interior environments. 89 As well, a highly unconventional approach to the empathetic design of psychiatric wards can be found in the case of one Canadian architect: he ingested LSD and spent several hours in a conventional psychiatric institution to experience the effect the building had on him. (90) From his experience, he introduced modifications which included, inter alia, designing large spaces in a circle to avoid unexpected and sudden encounters; the wall, floor and ceiling are clearly demarcated to aid patients in sensing their inner surroundings. (91) Design considerations unique to the person experiencing an altered state of consciousness are crucial to treatment that is fruitful, unjarring, and ccessible.

VI. Conclusion

Sustainability and humane treatment are the cornerstones of the ideal alternatives to forced psychiatry. Ironically, refusing conventional treatment may be good for the patient. Besides avoiding invasive practices, the negotiation that ensues between patient and provider encourages autonomy and bolsters patient dignity. (92) Also, force frequently leads to the kind of negative reaction which leads to poor outcome and noncompliance. (93)

At present, great resources are hemorrhaged in legal battles to enforce one of the "self- evident" rights propounded by the Declaration of Independence -- liberty. As this paper  has presented, the right to refuse forced treatment is only a precursor to the affirmative right to chose alternatives. Someday, the time will come when the wisdom of effective, cooperative treatment methods will be self-evident. It is only then that therapeutic jurisprudence can close the book on psychiatry. Provided a new catalogue of unforced treatment, the law at last can retreat from the arena of mental healthcare. 

Endnotes

1 .   In J. Nelson, Healing the Split: Madness or Transcendence? A New Understanding of the Crisis and Treatment of the Mental Ill, 317 (1990) (psychiatrist Nelson explains "[t]he emerging power of the mind over brain is the ultimate assertion of free will. *** The demonstrable power of human will is everyday proof of the primacy of the mental over the physical, of the ability of consciousness to govern the activity of its earthy caretaker, the brain.")

2.    Consider the Jewish, Christian, and Islamic belief in an omniscient, omnipotent, and omnipresent God. By God's very definition, God must know, in a timeless manner, all acts that have been, are, and shall be. Therefore, God acts as a subtle element of background determinism.

3.    Eg, Copernicus' clockwork-like functioning of the solar system, and Descartes' view of the mechanistic operation of the human body as discussed in, Guy Murchie, The Seven Mysteries of Life, An Exploration in Science and Philosophy, 383 (1978)

4.    Consider the work of Darwin as presented in his basic exposition of the workings of gene-based transfer of organism characteristics, Id., at 162

5.   For example, behavior caused by one under the influence of alcohol, drugs, or one who has suffered a head injury.

6.   To most, Pavlov's Dog is a familiar example of trained response. In that experiment, Pavlov trained his dogs to associate a bell with food; they soon salivated at the mere sound of a bell with no food in sight. See, I. Pavlov, Work on the Digestive Glands (1897)

7.   Most notable is the case of demonic or other supernatural possession. See Judith S. Neaman, Suggestion of the Devil: The Origins of Madness; Werewolves, demoniacs, lunatics, fools: thir curers and exorcists, 36-38 (1975)

8.    Dr. Edward Colbach, as stated in Law and Psychiatry Seminar lecture at Northwestern School of Law of Lewis and Clark College on 1/28/99

9.   See Mills v. Rogers, 457 U.S. 291, 296 (1982) (Court finds two State interests, parens patriae and police power, which must be weighed against the individual's liberty interest).

10.  See generally, Involuntary Civil Commitment in the 90s: A Constitutional Perspective, 18 Mental & Physical Disability L. Rep. 320, 329-336 (1992) (providing a table with civil commitment standards throughout the United States).

11.  E.g., Wyatt v. Aderholdt, 503 F.2d 1305 (5 th Cir. 1974) (enjoining the use of medication "as punishment, for the convenience of staff, as a substitute for program, or in quantities that interfere with patient's treatment program").

 12.   Thomas Szasz, Ideology and Insanity 13 (1970) ("[t]he concept of illness, whether bodily or mental, implies deviation from some clearly defined norm. *** [W]hen one speaks of mental illness, the norm from which deviation is measured is a psychosocial and ethical standard. (emphasis in original))

 13.  See supra note 1, at 22,26-27 ("consensual reality" defined as that interpretation of reality which is learned from other minds and from the consensus of society)

 14.   See Eulis Simien, Jr., The Interrelationship Of The Scope Of The Fourth Amendment And Standing To Object To Unreasonable Searches, 41 Ark. L. Rev. 487, note 236 (1988) ("Collective rights are distinguishable from individual rights in that the latter were designed to govern the one-on-one relationship between the government and a citizen and the former address themselves to the assurances given to all citizens in general that the government will perform and function in certain designated manners.") Therefore, government force against a single citizen suggests possible government force -- i.e. one-sided, non-mediated action -- upon citizens in general.

15.  Lester A. Gelb, M.D., Mental Health in a Corrupt Society, in Going Crazy: the Radical Therapy of R.D. LaIng and Others, 196-197(Dr. Hendrik M. Ruitenbeek ed., 1972) [heriafter "Going Crazy"] ("in the treatment of the individual or groups of individuals we must be aware that social change may be the most meaningful therapeutic goal and therefore must be a real part of our professional concern.")

16.   Bruce J. Winick, The Right to Refuse Mental Health Treatment (1997)

17.   Id at 23

18.   Quite rightfully, some may argue that in modern times talk therapy isn't even  psychiatry, but instead falls under the sister discipline of psychology. Psychoanalysis, a subset of psychotherapy, however, is traditionally associated with psychiatry.

19.   See R. Reisner et. al., Law and the Mental Health System: Civil and Criminal Aspects, 58-60 (1999)

20.   Id at 925

21.   Winick, supra note 16, at 51

22.   See infra section on Liberty/Autonomy Jurisprudence for discussion of Eight Amendment prohibitions on cruel and unusual punishment.

23.  See Reisner, supra note 19, at 39-40

24.  Winick, supra note 14, at 78

25.  Id at 82

26.  Id at 72

27.   Michael Sole, M.D., in a telephone conversation 11/21/98

28.   Winick, supra note 14, at 73 ("these extrapyrimidal symptoms are subjectively quite stressful, may be incompatible with clinical improvement and with a useful life outside the hospital, and can be more unbearable than the symptoms for which the patient was originally treated")

29.  Reisner, supra note 16, at 41

30.   See Article, "Zapback Campaign News: UK activists say 'Pull the Plug'", Dendron: Human Rights & Alternatives in the "Mental Health System", 34 (Winter 1998/1999)

31.  Winick, supra note 16, at 93; see also Aden v. Younger, 57 Cal.App.3d 662, 129 Cal.Rptr. 535, 541 (Cal.Ct.App.1976) (ECT has several adverse effects, including memory loss and intellectual disorientation)

32.  Id at 97 (ESB is such a powerful stimulator that when electrode implanted into pleasure center of animal, animal chose electrical self-stimulation over food, until death by starvation resulted.)

33.  Id at 101

34.  Winick, supra note 16, at 103

35.  Id at 105

36.  Id at 107. Specifically in overcrowd hospital or prison settings, where involuntary psychotropic drug treatment alone proves unmanageable or insufficient.

37.  See Catherine Blackburn, The "Therapeutic Orgy" "and the 'Right to Rot'" Collide: The Right to Refuse Antipsychotic Drugs Under State Law, 27 Hous. L. Rev 447 (1990)

38.  See generally Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 Psych. Pub. Pol. L. 1, 194 (1995);

39.  See Robert Levy and Leonard Rubenstein, The Rights of People with Mental Disabilities, 103 (1996); see also the general principle as affirmed in the famous line by Justus Cardozo: "Every human being of adult years and sound mind has a right to determine what shall be done with his how body." Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130 (1914). While the reference to "sound mind" may seem to beg the question concerning involuntary committees, most courts presume the determination of competency to be separate from the mere status of being "mentally ill" and therefore the right to refuse may lie., see e.g., Lotman v. Security Mut. Life Ins. Co., 478 F.2d 868, 873 (3d Cir. 1973); Mills v. Rogers, 457 U.S. 291 (1982)

40.  Levy et al., supra note 39, at 103

41.  See supra note 38

42.  There is an unfortunate spectre of actual treatment methods used for non-treatment purposes such as control or punishment without the patient's knowledge. see e.g., Knecht v. Gillman, 488 F.2d. 1136 (8 th Cir. 1973) (when instituted without informed consent, a program of forcibly administering a drug which induced vomiting was a violation of 8th Amendment cruel and unusual punishment proscriptions).

43.  See Michael Misocky, The Patients' Bill Of Rights: Managed Care Under Siege, 15 J. Contemp. Health L. & Pol'y. 57, 57 (1998); Gerald Gunther, Constitutional Law 418 (13 th ed. 1997)

44.  U.S. Const. amend. I.

45.  See e.g. Gunther, supra note 43, at 432-434 (selective "incorporation" doctrine articulated by the U.S. Supreme Court causes protection of most provisions of First through Eight Amendment to flow through the Due Process Clause and apply to the state as they apply to federal government action)

46.  Winick, supra note 16, at 135

47.  Rogers v. Orkin, 478 F. Supp. 1342, 1366 (D. Mass 1979), aff'd in part and rev'd in part on other grounds, 634 F.2d 650 (1 st Cir. 1980); Bee v. Greaves, 744 F.2d 1387, 1393 (10 th Cir. 1984), cert. denied, 469 U.S. 1214 (1985)

48.  Lojuk v. Quandt, 706 F.2d 1456 (7 th Cir. 1983)

49.  Winick, supra note 14, at 135

50.  274 U.S. 357 (1927)

51.  Id at 375

52.  381 U.S. 479, 481 (1965)

53.  See Winick, supra note 16, at 226-227 (at time of adoption, mental patients were  treated as criminals; like prisoners, mental patients are in custody, are confined and not subject to public scrutiny; traditional remedies against abuse-- civil and criminal -- not readily available to mental patients)

54.  Rennie v. Klein, 653 F.2d 836, 844 (3 rd . Cir 1981) (en banc); Price v. Shepard, 239 N.W.2d 905, 908 (Minn. 1976); Lojuk v. Quandt, 706 F.2d 1456, 1464 (7 th Cir. 1983).

55.  Knecht, supra note 14, at 1137

56.  See Winick, supra note 16, at 237

57.  U.S. Const. amend V (applicable to federal government), XIV (applicable to state), § 1; see supra note 44

58.  381. U.S. 479 (1965)

59.  Id. at 484

60.  410 U.S. 113, 153 (1973)

61.  See e.g. Gunther, supra note 43, at 516-518

62.  Roe, supra note 60

63.  See generally Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992)

64.  Douglas S. Stransky, Comment, Civil Commitment and the Right to Refuse  Treatment: Resolving Disputes From a Due Process Perspective, 50 U. Miami L. Rev. 413, 432, discussing Riggins v. Nevada, 504 U.S. 127 (1992) (forced drugging of pre-conviction defendant violated due process)

65.  Youngberg v. Romeo, 457 U.S. 307, 321-322 (1982) ("[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish"); Clark v. Donahue, 885 F. Supp. 1164, 1166 (S.D Ind. 1995) (involuntary mental patients have more protected conditions of confinement that criminally convicted prisoners")

66.  Ingraham v. Wright, 430 U.S. 651,673 (in a case on school corporal punishment, due process inures a right to be free from and to obtain judicial relief for unjustified intrusion on personal security); Vitek v. Jones, 445 U.S. 480, 492 (1980) (citing Ingraham, held that prior to an involuntary transfer to mental hospital, prisoner's due process rights demanded a hearing); Youngberg, supra note 65 at 315 (liberty interest in "personal security" requires reasonably safe conditions of confinement and freedom from invasion of bodily integrity for a involuntary resident of a mental retardation facility)

67.  820 F.Supp. 1497, 1512 (N.D. Ca. 1993)

68.  458 NE.2d 309, 315 (Mass, 1983)

69.  335 N.Y.S.2d 461, 465-466 (Sup. Ct. 1972)

70.  See supra note 37

71.  Prior to the modern connotation of the "insane asylum," Middle Age places of rest and rejuvenation for the mentally troubled were called sanitariums, and provided asylum -- much as a political dissident seeks the haven of political asylum. See Neaman, supra note 7, at 138; See also Claude M. Steiner, Ph.D., Radical Psychiatry, in Going Crazy at 308 ("[medical] psychiatry is a step sideways into pseudoscientism from the state of the art in the Middle Ages, when it was the province of elders and priests as well as physicians")

72.  See Craig Haney and Mona Lynch, Regulating Prisons Of The Future: A Psychological Analysis Of Supermax And Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477 (1997) citing American Psychiatric Association, Task Force Report 22: Seclusion and Restraint: The Psychiatric Uses (1985)

73.  See Eva Edelman, Natural Healing for Schizophrenia: a Compendium of Nutritional Methods (1996)

74.  Id at 26

75.  T.A. Ban, Nicotinic Acid In The Treatment Of Schizophrenias: Practical And Theoretical Considerations, 1 Neuropsychobiol. 133-4 (1971); T.A. Ban and H.E. Lehman, Nicotinic Acid In The Treatment Of Schizophrenias, 5 Canadian Psychiat. Assn. J. 15 (1970)

76.  Edelman, supra note 73 at 21.

77.  Id at 83-100

78.  Edelman identifies histamine imbalances, Pyroluria, allergies, sugar imbalances among other biotypes for which particular treatment must be tailored. Id at 1

79.  Nancy Menapace and E. Mark Stern, Contact Improvisation: Its Potential for a Therapy of Movement: A Conversation/Dialogue Between Nancy Menapace and E. Mark Stern, in Integrating Exercise, Sports, Movement, and Mind, 45 (Kate F. Hays ed. 1998)

80.  Peter R. Breggin, Toxic Psychiatry 384 (1991)

81.  Nelson, supra note 1, at 373

82.  Id.

83.  Nelson, supra note 1, at 374

84.  See Breggin, supra note 80, at 384.

85.  Id.

86.  Id. at 385. This unorthodox method of treating schizophrenics without psychotropic medication showed, in controlled studies, to result in less future need for medication, higher occupational levels, and a more independent lifestyle. Id.

87.  See e.g. Winnefred Gallagher, The Power Of Place: How Our Surroundings Shape Our Thoughts, Emotions, And Actions, 49 (1993) ("depression caused by light depravation can affect the homebound, hospitalized, and submariners just like a winter in Alaska")

88.  Id, at 48

89.  Id.

90.  Nelson, supra note 1, at 374

91.  Id.

92.  Alexander Brooks, The Right to Refuse Antipsychotic Medication: Law and Policy, 39 Rutgers L.Rev. 339, 368 (1987)

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