HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Thursday, March 10, 2005

New Article by Michael Perlin

Michael_perlin_2_1 Professor Michael Perlin of New York Law School has written a new article entitled, "'Salvation' or a 'Lethal Dose'? Attitudes and Advocacy in Right to Refuse Treatment Cases," which is available in the 2005 Journal of Forensic Psychology Practice, Vol. 4, No. 4, pp. 51-70.   (yes, I know I have linked to his articles before - he is quite the prolific writer).  Professor Perlin is a leader in the area of mental health law and his insights are thoughtful and nuanced.  The abstract follows:

There has been surprisingly little literature about two of the most important issues that affect the way the right of institutionalized psychiatric patients to refuse medication is implemented in an institutional setting: the attitudes of the parties concerned (patients and staff), and the adequacy of counsel that is made available to patients seeking to invoke their constitutional right to refuse. The lack of literature on these issues reflects, I believe, a deeper issue: the extent to which we, as a society, trivialize what is at stake in the right to refuse treatment litigation and trivialize the personhood of those in institutions subject to such medications.

If appellate courts enter broad orders in right to refuse cases without thinking about the operationalization of these orders in subsequent individual cases (or if only perfunctory assignment of disinterested counsel is made), the initial order becomes little more than a pretext. And if other appellate courts close their eyes to the level of inadequacy of counsel, this willful blindness simply adds one extra layer of pretextuality to the process.

We also need to consider some other underlying social issues. The common wisdom is clear here. Drugs serve two major purposes of social control: they cure dangerousness, and they are the only assurance that some deinstitutionalized patients can remain free in community settings. Both of these assumptions are reflected in the case law that has developed in individual involuntary civil commitment cases (in which a judge's perception of the likelihood that an individual will self-medicate becomes the critical variable in case dispositions); they are also reflected in the public discourse that is heard in classrooms, hospital corridors, and courtrooms.

Neither of these assumptions has any basis in science or in law. Yet, without counsel to serve as a brake - to ask questions, to challenge assumptions, to identify faux "ordinary common sense" to point out the dangerous pitfalls of heuristic thinking - these assumptions will continue to dominate and control the disposition of individual right to refuse treatment cases.

Again, counsel's significance increases even more drastically here in the context of the improper presumption of incompetency indulged in by many trial judges. Without vigorous, independent counsel, it is doubtful that challenges to this improper presumption would ever be launched. This is especially problematic in light of the fact that the equation of incompetency to mental illness does appear consonant with ordinary common sense. Counsel's role is especially important in areas of the law where ordinary common sense is so dissonant with empirical fact. If there is any expectation that these issues be considered thoughtfully and critically, it is essential that the issue of counsel presence and adequacy be moved to center stage.

The full article is available here.[bm]

http://lawprofessors.typepad.com/healthlawprof_blog/2005/03/new_article_by_.html

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