Patients who are subjected to involuntary hospitalization in a psychiatric facility or who accept voluntary admission retain certain rights within the institution. Patients hospitalized because of mental illness do not shed their rights at the hospital door. Although they may not leave the hospital, they retain their rights to the fullest extent consistent with their status as mental patients. The Constitution protects the right of patients to communicate with others outside the hospital, to consult with counsel, to petition the courts, to practice their religion, to have reasonably safe conditions of confinement, to be free of unreasonable seclusion and restraint, to receive adequate treatment, to refuse certain treatments, and to receive a hearing if any of these rights are sought to be curtailed or if their commitment is extended. Modern civil commitment statutes also guarantee these rights as a matter of state law and afford additional rights to patients, including the right to convert their status from involuntary to voluntary admission, to the confidentiality of their clinical records, and to have access to their records.
Patient’s Right to Treatment
Many state mental hospitals suffer from chronic under-funding that may undermine their ability to deliver effective care and treatment, the very function for which they exist. Although psychotropic medication has become the treatment of choice for the major mental illnesses, other forms of treatment are needed to prepare patients for discharge and the resumption of life within the community with a high level of functioning. These include psychotherapy and other verbal approaches, behavioral therapy, occupational therapy, and social skills training. Psychotropic drugs should be used in conjunction with these other forms of treatment, not as an exclusive therapeutic intervention. Inadequate staffing and funding at many mental institutions, however, sometimes prevents this from occurring.
Can patients assert a right to more treatment than the hospital is delivering? Such a right to treatment is inherent in the fairness principles embodied in notions of due process and is supported by the often vaguely worded statutory right to treatment that state law typically protects. Due process requires a reasonable relationship between the nature and duration of commitment and its purposes. The purposes of commitment are to protect the best interests of patients who are incompetent to make hospitalization and treatment decisions for themselves or to protect the community from the patient’s potential dangerousness. Although confinement alone might seem to satisfy this latter purpose, when those with mental illness who are predicted to be dangerous are confined in a mental hospital rather than a prison or a preventive detention facility, the rationale for hospitalization would seem to be the promise of treatment for mental illness designed to reduce the risk of dangerousness. Otherwise, the deprivations and stigma associated with hospitalization would be unnecessary and hence arbitrary, in violation of due process. If treatment can reduce the patient’s dangerousness, it may reduce or eliminate the need for further hospitalization, thereby making hospitalization without the provision of such treatment an unnecessary and arbitrary deprivation of liberty. When commitment is justified on parens patriae grounds, the asserted justification is that hospitalization will provide treatment that is necessary to ameliorate the patient’s condition that he or she would not choose for himself or herself as a result of his or her incompetency. If the hospital fails to provide adequate treatment tailored to the patient’s needs, it would constitute an arbitrary deprivation of liberty in violation of due process.
Several lower federal courts have recognized that patients involuntarily committed have a legally enforceable right to adequate treatment grounded in due process and that hospitals may be mandated to provide needed treatment and services. The U.S. Supreme Court, however, has not gone this far. The Court has recognized that when hospitals fail to provide adequate treatment, it results in an unjustified infringement on liberty for patients who can survive safely in the community. In a case involving an institution for those with mental retardation, the Court recognized that residents have a due process right to minimally adequate facilities, reasonable habilitation and training, and freedom from undue restraint.
Whatever the basis of their hospitalization, depriving patients of the treatment needed to restore them to a degree of functioning that will allow return to community life consistent with their safety and that of the public would render hospitalization an unjustified deprivation of liberty. It also could exacerbate their mental illness in ways that require lengthier hospitalization than otherwise would be needed. Without the provision of needed treatment that could ameliorate suffering and restore functioning, detention in a hospital, with all its deprivations and stigmatization, would seem unnecessary, purposeless, and arbitrary. The massive curtailment of liberty that psychiatric hospitalization imposes can only be justified if such hospitalization is beneficial, and not harmful, to the mental health of those subjected to it. Hospitalization without adequate treatment, therefore, violates the essentials of due process.
Patient’s Right to Refuse Treatment
Although treatment is an essential purpose of hospitalization, certain treatments delivered in the hospital, notably psychotropic medication and electroconvulsive therapy (ECT), are intrusive and impose direct effects and side effects that many patients find highly unpleasant and debilitating. Can patients refuse these interventions? Courts and legislatures have accorded patients a qualified right to do so, imposing limitations on the involuntary administration of these treatments.
Psychotropic medication and ECT intrude powerfully and directly into mental processes, bodily integrity, and individual autonomy and, therefore, should be justified only on a showing of compelling necessity. To be imposed involuntarily, they must be medically appropriate and the least intrusive means of accomplishing one or more compelling governmental interests. This standard would be satisfied if treatment were necessary to protect other patients or hospital staff from the patient’s dangerousness, but only if less intrusive alternatives, such as seclusion and restraint, would not achieve this purpose. When the state’s parens patriae power to protect those whose mental illness renders them incompetent to protect themselves serves as the justification for their hospitalization, this standard also may be satisfied. Many patients with severe mental illness, however, are competent to make treatment decisions. Unless they have been determined to be incompetent to do so, they should participate in treatment decisions and their informed consent should be required. When patients seek to refuse unwanted treatment within the hospital, procedural due process will require a hearing to determine whether the justifications for imposing treatment involuntarily are satisfied.
Communication and Visitation Patient’s Rights
State statutes typically protect a patient’s right to communicate with others. These statutes effectuate the patient’s First Amendment right to communicate with those outside the institution. The institution may place reasonable time, place, and manner restrictions on communication and visitation, but it should not be unduly restricted. Patients should enjoy a broad right to freely communicate with and receive visitation from counsel, judges, the press, and friends and relatives.
Free and open communication between patients and the outside world serves as important First Amendment interests, including the deterrence and exposure of institutional abuse. Moreover, free expression has considerable therapeutic value. By continuing the patient’s ties to family and friends, it also will facilitate the patient’s reentry into the community and the successful resumption of community life.
Patient’s Right to Be Free of Unreasonable Seclusion and Restraint
Physical restraint and seclusion are standard measures used by hospitals to protect the patient and other patients and staff within the institution from a patient who is dangerous to self or others. Psychotropic medication also sometimes is used for this purpose. All these constitute an additional deprivation of liberty protected by the due process clause, and as a result, they may not be used arbitrarily and must be justified. They should be limited to emergency situations when other measures have failed to prevent serious and imminent harm. Moreover, as clinical tools, these techniques must be medically appropriate for the patient and should not be used as punishment, for the convenience of staff, or to ease hospital administration.
State civil commitment statutes typically contain protections against unreasonable or arbitrary use of these techniques, and regulations of the U.S. Department of Health and Human Services, applicable to all state and local facilities that accept federal funding, limit their use to emergency situations needed to ensure the patient’s physical safety when less restrictive interventions have been determined to be ineffective. Because all these techniques involve serious intrusions on liberty, the least restrictive alternative principle of constitutional adjudication applies. Under this principle, all feasible alternatives to these intrusive techniques should first be attempted. Hospital staff should receive training in these alternative methods of containing the risk of violence and should be required to document in the patient’s record the various approaches attempted. When other approaches have not succeeded and violence appears imminent, then seclusion, restraint, or medication may be considered, but the patient should be given the opportunity to choose the alternative he or she finds less intrusive and more acceptable. A good way to obtain patient preferences in this regard is through the use of advance directive instruments.
Because these techniques infringe on liberty, they also trigger procedural due process requirements. When time permits, patients should be given notice and at least an informal hearing concerning the need for these measures. When an emergency requires immediate action, however, alternative administrative safeguards should be used in lieu of a hearing, including detailed entries in the patient’s chart, authorization by medical staff, and administrative review by a physician or hospital administrator. Standing orders for these techniques are inappropriate; they should be applied only on an as-needed basis when less restrictive alternative possibilities have proven unsuccessful. The treating physician should be consulted as soon as practicable if such an order is issued by another staff member; the physician should review the medical necessity of such an approach within 1 hour of its imposition; and the duration of the use of these approaches should be sharply limited. Department of Health and Human Services regulations impose these and additional restrictions on the use of seclusion and restraint.
Therapeutic Jurisprudence Perspectives on a Patient’s Rights
Recognition that patients have various rights within the institution, including, for example, the right to refuse treatment, gives the patient a choice of whether to exercise the right in question or to refrain from doing so. A patient possessing the right to refuse treatment may decline to exercise it and instead to accept treatment. If so, this choice in favor of treatment has psychological value. It constitutes goal setting and engages positive expectancies that can become self-fulfilling prophecies that set in motion psychological forces that help to bring about goal achievement. Choice provides a measure of intrinsic rather than extrinsic motivation, an important ingredient in goal achievement. Coerced treatment, in contrast, can encourage resentment, anger, and oppositional behavior. According patients the right to refuse treatment thus can have important therapeutic value.
Therapeutic jurisprudence considerations also support the protection of other rights of patients within the institution. The protection of such rights constitutes an important measure of respect for patients’ dignity and personhood. When these basic rights are not respected, patients will feel demoralized and dehumanized and will likely experience a diminished sense of self-efficacy. Recognizing that patients within the institution continue to have rights that they can exercise allows patients to retain an important measure of self-determination and to exercise a degree of autonomous decision making that itself is healthy and can help facilitate their recovery. Denying patients these rights or failing to take their rights seriously can have the effect of depriving them of these opportunities for self-determination, impair their functioning, diminish motivation, and produce feelings of depression and in some cases a form of institutional dependency.
- Perlin, M. L. (1998). Mental disability law: Civil and criminal. Albany, NY: LexisNexis.
- Winick, B. J. (1997). The right to refuse mental health treatment. Washington, DC: American Psychological Association.
- Winick, B. J. (2005). Civil commitment: A therapeutic jurisprudence model. Durham, NC: Carolina Academic Press.
Return to the overview of Mental Health Law in Forensic Psychology.