The Right to Refuse Mental Health Treatment
For individuals in the U.S. & U.S. territories
The Right to Refuse Mental Health Treatment is the most comprehensive analysis in print of the legal issues raised by involuntary treatment. It provides a systematic analysis of the mental health treatment techniques and the constitutional issues implicated by involuntary treatment.
The first part of the book constructs a continuum of intrusiveness along which the various treatment techniques—psychotherapy, behavior therapy, psychotropic medication, electroconvulsive therapy, electronic stimulation of the brain, and psychosurgery—may be ranked.
In Part II, the author discusses the constitutional and other legal limitations on governmentally imposed, involuntary mental health and correctional treatment, including statutory, regulatory, and international and tort limit laws. The governmental interests that might justify involuntary treatment are analyzed, and two important limitations on the means to achieve these interests are examined: the therapeutic appropriateness principle and the least restrictive alternative principle.
In Part III, the author analyzes issues related to the evaluation and implementation of the right to refuse mental health treatment. A concluding chapter considers future directions for the right to refuse, including the use of advance directive instruments and the role of ethical restrictions.
I. Mental Health Treatment Techniques
- A Continuum of Intrusiveness
- Behavior Therapy
- Psychotropic Medication
- Electroconvulsive Therapy
- Electronic Stimulation of the Brain
II. Constitutional Limitations on Involuntary Mental Health and Correctional Treatment
- The Constitution and Other Sources of Legal Limitation on Governmentally Imposed Therapy
- The First Amendment and Mental Health Treatment: Constitutional Protection Against Interference With Mental Processes
- Substantive Due Process and Mental Health Treatment: Constitutional Protection for Bodily Integrity, Mental Privacy, and Individual Autonomy
- Treatment as Punishment: Eighth Amendment Limits on Mental Health Interventions
- Religion-Based Refusal of Treatment: Constitutional Protection for the Free Exercise of Religion
- Are Mental Patients Different?: Equal Protection Limits on Involuntary Treatment
- Scrutinizing the Government's Interest in Involuntary Treatment
- Scrutiny of the Means Used to Accomplish Governmental Interests
III. Evaluating and Implementing the Right to Refuse Treatment
- A Therapeutic Jurisprudence Analysis of the Right to Refuse Mental Health Treatment
- Waiver of the Right to Refuse Treatment: The Requirement of Informed Consent
- Procedural Due Process and Involuntary Therapy: The Right to a Hearing
- The Future of the Right to Refuse Treatment
Table of Authority
About the Author
It has been 20 years since the initial right-to-refuse cases were decided. The Supreme Court has skirted the issue, psychiatrists are no longer the primary service providers in many behavioral health care facilities, and…the terminology defining the field has changed dramatically. The apocalyptic vision promoted by some psychiatrists on the inmates taking over the asylum while the clinicians cower in the administration area has not come to pass, but neither has the goal of patients becoming true partners in treatment decisions. There is still enough controversy over mental patients' rights to justify a book such as Bruce Winick's The Right to Refuse Mental Health Treatment. Its purpose, obviously, is to examine the legal issues surrounding the refusal of mental health treatment. It pursues this mission most commendably in a logical, methodical, and thorough way, without polemics. Winick first discusses the most frequently used types of mental health treatment, then explores the legal sources from which a right to refuse treatment can be derived, and goes on to examine what the law has said, or left unsaid, concerning the right…The Right to Refuse Mental Health Treatment is the definitive reference work on this important subject. Bruce Winick's broad range of sources makes it more than just a legal argument; it is a thoughtful, measured, multifaceted analysis of an issue that, more than any other in mental disability law, has been forcefully debated for many years. This book may help to reframe the arguments and move beyond the physician versus attorney conflicts of view to a fuller and more productive discussion of what really helps patients and of how physicians and patients should treat each other.
—The Journal of Legal Medicine, 19:455-461, 1998
In The Right to Refuse Mental Health Treatment, Professor Bruce Winick of the University of Miami Law School explores the important issues raised by the involuntary administration of mental health treatment techniques in both civil patients and criminal offenders…This is an impressive first volume in the American Psychological Association's new Law and Public Policy Series. The book is thoroughly researched, well-organized, and clearly written without oversimplifications. The author, a preeminent scholar in the field of mental health law, is familiar with and sensitive to the differing perspectives of professionals from the fields of law, psychiatry, and psychology. As co-originator of the exciting concept of therapeutic jurisprudence, he uses a genuinely interdisciplinary approach that should help both clinicians and lawyers achieve a deeper understanding of the complex issues raised by the right to refuse treatment.
—Psychiatric Services, August 1998, Vol 49, No 8
A reading of this lucidly written and thoughtful book should be of interest to every psychiatrist, not only the American. The detailed review and presentation of American legal history on this subject actually enhances the relevance of this book for an international audience…The interest and strength of the book lies in the detail…The psychiatrist who reads this comprehensive and constructive volume will be amply rewarded.
—Psychological Medicine, Vol 28, 1998