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Recovery Model: Mental Health Recovery Model Applied to Severely Mentally Ill; JH Rick Massimino MD

Right To Treatment

The Right to Treatment vs The Right to Refuse Treatment

Identified population:

We will focus on the population of 'patients' known among psychiatrists as having 'treatment resistant psychosis' and 'treatment non-compliant psychosis'.  Today political correctness has nearly extinguished the use of these terms, but their meaning is more relevant than ever.  Psychotic patients who either refuse to accept treatment or are poor responders to treatment efforts are a major challenge to the clinical psychiatrist, a major concern for public safety, are living lives of desperation, creating desperation for their families/friends, consume the majority of our mental health dollars (acute hospital/emergency care), and have become the criminalized mentally ill occupying our jails, prisons and state mental hospitals.  The real and human costs associated with this tragic reality are beyond calculation, but one can conservatively speak in terms of billions of dollars with little to show for the expense.
The Clinical Environment:
Throughout my thirty-year career as a clinical psychiatrist I have constantly heard the following comment as the justification for not providing needed treatment to a severely psychotic mentally ill person, "They have the right to refuse medication."  I have always believed this perspective to be counter therapeutic, illogical, lacking commonsense, violating my moral physician responsibility and socially reprehensible.  Years of personal study into the origins of this incorrect thinking have only strengthened my resolve to “shine light” on this egregious distortion of interpretation and perspective.  It is now clear to me that the original legislative language, which forms the basis for the current day “They have the right to refuse medication,” has been interpreted with faulty and/or incomplete thinking and then continuously perpetuated incorrectly over time (Finkelstein, Whitehead, & Campbelll, 2008).  This faulty thinking must now be corrected for the benefit of patients and also because the long term financial solvency of the mental health care system serving chronic disabling severe mental illness requires treatment adherence which includes medication compliance. 
Patient’s Rights Literature:
The Patient’s Rights Informational Handout-Revised 08/10/09 offers the most current and prevailing perspective on the “right to refuse medication” thought, law, or interpretation (Office of Patient’s Rights Protection & Advocacy, Inc, 2009).  A careful analysis of this document reveals several important considerations, which must be understood and reconsidered for the purposes of better interpretation and better treatment for the chronically mentally ill.  Below are the categories and considerations, which require our attention.

Best Interest vs. Expressed Interest:
Simply put, patient’s rights advocates are empowered to advocate for a patient’s desires and wishes and not for the patient’s best interests or medical needs.  However, the existence of both a best interest and a expressed interest are found in the United States Constitution and were never intended to be conflicting interests but instead to be merged or complimentary interests.  Below we will examine the origin of the concept of Parens Patriae (best interest) and the associated police power to facilitate best interest, and liberty doctrine (expressed interest), which is self-explanatory.

The following is taken from an Article by Paul F. Stavis, Counsel to the New York State Commission on Quality of Care 1989
The Law:
Inherited from the western tradition of law, and particularly laws of England, all laws are directly founded upon one of the two traditional governmental powers.  First, governments are responsible to protect each citizen from other persons' injurious actions; this is called the police power.  Secondly, governments are the parents of last resort for each citizen; this is usually known as parens patriae (father of the country).  This power is a benevolent one, i.e., government is responsible to care for a disabled citizen as loyally as a parent would for a child.  These two powers are perhaps best expressed in the Preamble of the Constitution of the United States.  The expressed purpose of our government is to exercise police powers (to establish justice, insure domestic tranquility and provide for the defense) and it’s parens patriae powers (to promote the general welfare and to secure the blessings of liberty).  It is significant to also note that courts take very seriously any denial of a person's liberty, whether under the criminal or civil law.  Civil commitment is viewed as a denial of liberty, no matter which governmental power is being exercised, and courts apply the strictest legal standards of the civil law upon the party (usually the government) seeking to involuntarily commit for treatment a person with mental illness.  Accordingly, civil commitment laws may be justified under either of these governmental powers as long as they meet the respective requirements to "police" or to "parent."  Thus, a person with a significant mental illness may be civilly committed under the police power if manifestations of that illness threaten to harm other people; in other words, the principal focus or beneficiary of this "police" civil commitment is protection of others rather than the patient.  Alternatively, under its powers to act as a parent acts toward a child of tender years, i.e., without mature judgment and reason, government may civilly commit a person with mental illness-based impaired judgment for his own good, e.g., where the disabilities of the mental illness are treatable, and where the person cannot cope with the inherent dangers of life in society by himself or with help from family or friends.  Without support from family or community and without the requisite abilities, the state is obliged to protect his life and health, by making decisions and providing service for that person who can do neither for himself.
The following is an analysis of when the “Patient’s Rights Informational Handout” either directly mentions the word medication or implies its use:
• Under the section-Patient’s Rights Non-Deniable:
1. The right to treatment services which promote the potential of the person to function independently.  (This statement is an implied reference to medication as a critical element of treatment for independent functioning.)
2. The right to be free from unnecessary or excessive medication.  Medication may not be used as punishment, for the convenience of staff, or as a substitute, or in quantities that interfere with, the treatment plan.  (Treatment, which generally includes appropriate and judicious use of medication, is reemphasized as a right.)
3. The right to prompt medical care and treatment.  (Medication is implied as a customary part of medical care and treatment.)
Nine separate rights are identified in this section as non-deniable, yet at the conclusion of this section the following is stated:  “Due to individual facility policy and procedure for safety and security, there may be some temporary modifications at times, but a permanent removal shall not be done by policy.”
• Under the Section-Patients Rights Subject to Denial:  These rights can only be denied when “good cause” exists.
This section makes no mention of medication or treatment but defines “good cause” as potentially causing injury to the individual, potentially compromising the safety and security of the facility and/or the safety of others, and could infringe on the rights of others, or could result in serious damage to the facility.  It is also noteworthy that the “Patient’s rights Informational Handbook” does not define dangerousness or suggest who should determine dangerousness.  It appears as though all rights may be temporarily suspended, even those rights considered non-deniable.
The following is taken from an Article by Paul F. Stavis, Counsel to the New York State Commission on Quality of Care 1989:
The Importance of Dangerousness:
The problem of ambiguity that has blurred the distinction between the "police" and "parens patriae" powers is the inconsistent use of the term "dangerousness", usually with the phraseology that: "a person is a danger to himself or others."  However, this is not a very precise use of the concept of "dangerousness," which normally connotes an external malevolence, a "threat" or a "menace" and which is an active force.  A person is not truly a danger to himself except where he is suicidal or self-abusive.  What is often meant by this convenient phrase is that a person is unable to avoid external dangers or harms that are easily managed by others, or is unable to function on a basic level to avoid the dangers in society.  In other words, in the “parens patriae” case, the patient is not the danger, nor do others generally need protection from him under a police power.  It is a meaningful distinction, both in fact and law, to separate a person who actively might harm others (but be without criminal culpability, e.g., John Hinckley) from a person who might be harmed by others or society through passivity or inability to cope, as in the so-called Billie Boggs case discussed in this article.  The origin of this ambiguity, in my opinion, was the landmark decision on civil commitment from the U. S. Supreme Court, O'Connor v. Donaldson.  This decision fundamentally ruled that government could not commit a person for involuntary mental health treatment merely due to a mental illness alone, i.e., without associated behavioral problems (such as violence) or without a clear and convincing inability to live safely in society by himself or even with the help of others.  The legal standard set by the Court was:  "A finding of 'mental illness' alone cannot justify a State's locking a person up against his will and keeping him indefinitely in simple custodial confinement…  In short, a state cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the helpof willing and responsible family members or friends."  Admitting to imprecision in the use of this idea, in a related footnote, the Court said:  "The judge's instructions used the phrase "dangerous to himself.”  Of course, even if there is no foreseeable risk of self-injury or suicide, a person is literally "dangerous to himself" if for physical or other reasons he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends.  While it might be argued that the judge's instruction could have been more detailed on this point…the evidence clearly showed that Donaldson was not "dangerous to himself" however broadly that phrase might be defined.  "What was the Supreme Court saying?  Clearly, it was that a person who is mentally ill, aware of it and capable of doing something about it if he chose to, cannot be deprived of his liberty under a civil commitment law, except if there is a danger to others or a dangerous situation to him which would be almost certain to occur due to his mental illness, and the commitment could treat the mental illness.  The facts of the case were that Kenneth Donaldson was confined for 15 years without any meaningful treatment, nor any other rationale to justify this massive curtailment of liberty.  What the Court was not addressing, and this was strongly emphasized in a concurring opinion by the Chief Justice, was the “parens patriae” commitment statute which involves a patient who cannot competently make treatment decisions and who has a mental illness that can somehow benefit from treatment or care in an asylum setting.  Thus, the use of the concept of "dangerousness" by the Supreme Court was not to mandate it as a finding in all commitment cases, at least in the sense that it applies to persons who are not competent to decide how to cope with manifestly serious mental illnesses.
Immediate vs. Imminent Danger:
Additional ambiguity is created when society (evaluators) lack a clear and consistent agreement about the definition and meaning of “immediate” and “imminent” danger.  These terms form the basis for commitment decisions, emergency determinations, and influence “good cause” restrictions of all (deniable and non-deniable patients) rights.
The totality of the above cited information leads one to the conclusion that the right to treatment is as powerfully protected if not more powerfully protected than the right to personal choice (the right to refuse medication) in a patient consumed by disorganizing and dangerous chronic mental illness.  The abandonment of “parens patriae” responsibilities and the ignoring of “rights to treatment” for these individuals should be considered a patient’s rights violation. All seriously mentally ill people have a Right to Treatment especially when disorganized thinking interferes with good decision making.  

J.H. Rick Massimino M.D. 

Finkelstein, S., Whitehead, J. & Campbell, A.  2008.  Think Again:  Why Good Leaders Make Bad Decisions and How to Keep It From Happening to You.  Harvard Business School Press:  Boston, Massachusetts.
Office of Patient’s Rights Protection & Advocacy, Inc.  2009.  The Patient’s Rights Informational Handout-Revised 8/10/09.  Retrieved from
http://www.disabilityrightsca.org/OPR/PRAT2003/RolePRA.pdf Role PRACounty-training handout-2003.doc on August 15, 2009.
Stavis, P.F.  2008.  Involuntary Hospitalization in the Modern Era:  Is “Dangerousness” Ambiguous or Obsolete?