The Right to Refuse Treatment

 

Grace E. Jackson, MD

 

 

The right of a patientto refuse treatment is based upon five constitutional protections [1]:††

 

n       the 8th amendmentís protection against cruel and unusual punishment

n       the 1stamendmentís protection of free speech (freedom of thought / ideas)

n       the 1st amendmentís protection of freedom of religion

n       the more broadly interpreted right to privacy

n       the 14th amendmentís protection of liberty (the right to be free from unjustified intrusions on personal security).

 

Within medicine, these constitutional guarantees have generally been unchallenged in the case of physical (somatic) illness.In fact, these protections constitute a competent individualís right to accept or refuse an intervention, based upon the principles of patient autonomy and informed consent.†† Within psychiatry, however, these guarantees have been variably interpreted and restrained.†† First, the state has been permitted a range of activities under its police authority, in which the rights of the public have supercededtherights of the mentally ill [2].†† Second, the state has been permitted a range of activities under the doctrine of parens patriae-- the 14th century theory which established the legitimacy of the state to act as guardian for those unable to care for themselves [3].

 

Given the steady rise of involuntary treatment decisions within the United States (e.g, more than forty states now authorizing coerced outpatient care),and the apparent acceptance of this phenomenon culturally, it is essential that mental health professionals reexamine the assumptions being made within the legal and psychiatric communities.

 

Assumption#1: Apsychotic person who refuses medication (or ECT, or psychosurgery) does not know what he is saying.

 

A psychotic person who experiences hallucinatory or delusional perceptions may nonetheless remain competent for the purposes of medical decision making [4,5].This competence may very well include cogent objections to the use of biological therapies.Studies have demonstrated that schizophrenia, to name just one example, is by no means a globally impairing condition for which the ability to consent to treatment must be automatically questioned or denied.

 

Assumption #2: An incompetent patient who declines medication must be protected by the state, with the courts ensuring the application of the psychiatric communityís standard of care:pharmacotherapy.

 

There is increasing evidence to demand a critical reexamination of the psychiatric communityís standard of care.First, the record of recentFDA drug approvals attests to the continuing acceptance ofegregiously flawed trial designs leading to the release ofpsychotropic drugs whose efficacy is slight, to non-existent (relative to placebo), and whose safety has been inadequately characterized [6].Second, the same flaws in trial design continue to apply to the majority ofpost-marketinginvestigations leading to invalid assumptions about product effectiveness and long-term safety [7,8].Third, rampant conflicts of interest now so undermine the integrity of psychiatric education, research and practice, that neither clinicians nor consumers are capable ofparticipating in an objectively informed consent to care [9].†††


 

By conceding to the authority of those psychiatric professionals who embrace a standard of care, based more upon political and economic considerations than upon objective, scientific evidence, the courts collude in a sham.That this collusion occurs out of ignorance is judicially embarrassing. That this collusion leads to the coerced use ofchemicals with potentially irreversible toxicities, is shameful.

If the states take seriously their charge to advocate for those citizens most in need ofprotection, they would do well to validate the claims of those patients Ė competent or not Ė who refuse treatment with biological therapies.Indeed, it may well be that the protection which patients and the public most need is notprotection from the symptoms ofmentalillness, but the protection from those institutions which have notdone enough to advocate for access to treatments which are safest,most effective, and most humane.

 

References

 

1††† Buchwald, William, Lazorishak, JD: The Right Of Patients In Mental Hospitals To Refuse Drug†††

††††† Treatment.Health Matrix1986: Vol IV, No 1: 3-18.

 

2         Ibid.

 

3         Payton, Sallyanne: The Concept of the Person in the Parens Patriae Jurisdiction Over Previously

†††††† Competent Persons.The Journal of Medicine and Philosophy1992; 17: 605-45.

 

4         Palmer, BW, Heaton RK, Paulsen JS, Kuck J, Braff D, et. al.: Is it Possible to be SchizophrenicYet

††††††† Neuropsychologically Normal?Neuropsychology1997: Jul 11(3): 437-46.

 

5         Moser, DJ, Schultz, SK, Arndt S, Benjamin ML, Fleming FW, Brems CS, et. al.Capacity to Provide

††††††† Informed Consent for Participation in Schizophrenia and HIV Research.American Journal of

††††††† Psychiatry 2002; Jul 159 (7): 1201-7.

 

6         Halpern, Scott D, Karlawish, Jason HT, Berline, Jesse A: The Continuing Unethical Conduct of

††††††† Underpowered Clinical Trials.JAMA 2002: Jul 17, Vol 288, No 3: 358-62.

 

7         Carpenter, William T.How the Doctor Can Counter Commercial Bias in the Dissemination of

††††††† Pharmacotherapeutic Knowledge.The Journal of Nervous and Mental Disease2002: Vol 190, No. 9:

††††††† 593-596.

 

8         Safer, Daniel J.Design and Reporting Modifications in Industry-Sponsored Comparative

†††††† Psychopharmacology Trials.The Journal of Nervous and Mental Disease2002: Vol. 190, No. 9:

†††††† 583-592.

 

9         Bodenheimer, Thomas.Uneasy Alliance.New England Journal of Medicine2000: May 18, Vol. 342,

†††††† No. 20: 1539-44.