The cases referred to in the title, Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979), aff’d in part, rev’d in part, 634 F.2d 650 (1 st Cir. 1980), vacated sub nom. Rogers v. Mills 457 U.S. 291 (1982), opinion on certified issues sub nom. Rogers v. Commissioner of Dep’t of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983), opinion on remand sub nom. Rogers v. Okin, 239 F.2d 1 (1st Cir. 1984), and Rivers v. Katz, 67 N.Y.2d 485, 495 N.E.2d 337, 504 N.Y.S.2d 74 (1986), are the preeminent federal and state cases on the right of the involuntary committed mentally ill to refuse unwanted medication.

1 MAILER, N., THE EXECUTIONER's SONG 468 (1979)Google Scholar (biographical description of Gary Gilmore).

2 Large v. Superior Court, 148 Ariz. 229, 234, 714 P.2d 399, 404 (1986) (emphasis in court's decision) (quoting physician's notation in patient's medical record).

3 The cases and statutes are discussed in Section III, infra.

4 The doctrine of informed consent is based upon the premise that patients may appropriately be given only medical treatments that they understand and have agreed to undergo while aware of the alternatives to and the risks and benefits of each. See text at note 52, infra. The doctrine of substituted judgment extends protection to patients incapable of making a decision by requiring that only treatments which the patients would have chosen—had they been able to choose—may be given. See text at note 59-65, infra.

5 The term organic therapies is used here to include:

1. (1)

   (1) Psychosurgery, including lobotomy; stereotactic surgery; electronic, chemical, or other destruction of brain tissues; or implantation of electrodes into brain tissue.

2. (2)

   (2) Shock therapy, including but not limited to any convulsive therapy and insulin shock treatments.

3. (3)

   (3) The use of any drugs, electric shocks, electronic stimulation of the brain, or infliction of physical pain when used as an aversive or reinforcing stimulus in a program of aversive, classical, or operant conditioning.

CAL. PENAL CODE § 2671 (C) (West 1984). See generally Shapiro, , Legislating the Control of Behavior Control: Autonomy and the Coercive Use of Organic Therapies, 47 S. CAL. L. REV. 237 (1974)Google Scholar.

6 Some of the earliest informed consent litigation involved the use of insulin shock therapy, in which coma is induced by the administration of insulin. See, e.g., Aiken v. Clary, 396 S.W.2d 668 (Mo. 1965) (physician had not disclosed risk of brain damage or death from insulin shock therapy; remanded for testimony about what reasonable practitioner would have disclosed); Mitchell v. Robinson, 334 S.W.2d 11, 15-19 (Mo. 1960) (patient had suffered compression fractures of several vertebrae from insulin shock therapy; physicians had duty to inform patient “generally of the possible serious collateral hazards“).

7 ECT involves inducing convulsions by passing electric currents through the brain. See Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962) (lack of informed consent where physician had affirmatively assured patient that ECT entailed no risks).

8 E. MONIZ, TENTATIVES OPÉRATOIRES DANS LE TRAITEMENT DE CERTAINES PSYCHOSES (1936), discussed in L. KALINOWSKY, H. HIPPIUS & H. KLEIN, BIOLOGICAL TREATMENTS IN PSYCHIATRY 272-93 (1982). In this procedure, the white matter of the frontal lobe of the brain is cut, often with a rather simple instrument.

9 Robitscher, , Psychosurgery and Other Somatic Means of Altering Behavior, 2 BULL. AM. ACAD. PSYCHIATRY L. 7, 15 (1974)Google Scholar.

10 Plotkin, , Limiting the Therapeutic Orgy: Mental Patients’ Right to Refuse Treatment, 72 Nw. U.L. REV. 469 (1977)Google Scholar; Robitscher, supra note 9, at 16-17.

11 Constitutional Rights of the Mentally Ill, Hearings Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 87th Cong., 1st Sess. 37 (1961) (statement of Dr. Overholser).

12 Robitscher, supra note 9, at 12.

13 See Aden v. Younger, 57 Cal. App. 3d 662, 672, 129 Cal. Rptr. 535, 541 (1976); Plotkin, supra note 10, at 472-73.

14 See Weiner, , Rogers, , Davidson, & Miller, , Evaluation of the Central Nervous System Risks of ECT, 18 PSYCHOPHARM. BULL. 29(1982)Google Scholar; Frankel, , Current Perspectives on ECT: A Discussion, 134 Am. J. Psych. 1014 (1977)Google Scholar.

15 See NATIONAL COMM'N FOR THE PROTECTION OF HUMAN SUBJECTS OF BIOMEDICAL AND BEHAVIOR RESEARCH, REPORT AND RECOMMENDATIONS ON PSYCHOSURGERY, 42 Fed. Reg. 26318, 26319 (1977); L. KALINOWSKY, H. HIPPIUS & H. KLEIN, supra note 8, at 279-82; H. KAPLAN & B. SADOCK, COMPREHENSIVE TEXTBOOK OF PSYCHIATRY 1565-68 (9th ed. 1985); Plotkin, supra note 10, at 469-71. One question raised repeatedly about psychosurgery is whether any of its potential subjects could give adequate consent for the procedure. See Kaimowitz v. Department of Mental Health, 2 Prison Law Rptr. 433 (Cir. Ct. Wayne County, Mich. 1973).

16 Many states have restricted the use of physical and chemical restraints. See, e.g., ALASKA STAT. § 47.30.825(d) (1984); OKLA. STAT. ANN. tit. 43A, § 92 (West 1984); TENN. CODE ANN. § 33-3-104(4) (1984); TEX. REV. CIV. STAT. ANN. arts. 5547-86 (Vernon 1984); VT. STAT. ANN. tit. 18, § 7704 (1984). Others have limited the use of aversive conditioning. See, e.g., N.Y. COMP. CODES R. & REGS. tit. 14, § 27.9 (1982); OHIO REV. CODE ANN. § 5122.27.1(A)(3)&(E) (Page 1984).

17 LA. REV. STAT. ANN. §28:171(0) (West Supp. 1988).

18 MASS. ANN. LAWS ch. 123, § 23 (Law. Co-op. 1984) (patients have right to refuse lobotomy which can be denied for “good cause,” but consent by guardian or relative is still required); cf. S.C. CODE ANN. § 44-23-1010 (Law. Co-op. 1984) (right to refuse lobotomy).

19 ARK. CODE ANN. §§ 20-47-218(b)(2) to (3), -220(b)(8) (Supp. 1987) (voluntarily and involuntarily committed patients have right to refuse psychosurgery); see D.C CODE ANN. § 6-1966 (1984)(psychosurgery not to be performed on the mentally retarded); MASS. ANN. LAWS ch. 123, § 23 (Law. Co-op. 1984) (psychosurgery never to be performed on inpatients of I.C.U.).

20 See infra note 59.

21 CONN. GEN. STAT. § 17-206d(d) (Supp. 1988); see CAL. WELF. & INST. CODE § 5326.6 (West 1984) (also requiring that three physicians, two of whom must be psychiatrists or neurosurgeons, must agree that patient has capacity to give informed consent and that psychosurgery is “definitely indicated” and is “least drastic alternative“; psychosurgery never to be performed upon minors).

22 See FLA. STAT. ANN. § 458.325 (West 1984) (must also have prospective review of proposed surgery by another physician “not directly involved with the patient“); cf. ALASKA STAT. § 47.30.825(g) (1984) (guardian consent permitted only for minors too young or disabled to give consent); ILL. ANN. STAT. ch. 91-1/2, para. 2-110 (Smith-Hurd 1984) (unless minor or under guardianship, patient's written and informed consent required; otherwise, court must authorize parent or guardian to give informed consent). Contra WASH. REV. CODE ANN. § 11.92.040(3)(b) (1985) (specifying that guardians do not have power to consent to psychosurgery, but must petition for court order).

Oregon, in a unique program, established a Psychosurgery Review Board which is to engage in a two-step review of all proposed procedures. The Board is first required to hold a hearing at which right to counsel is afforded to determine whether the patient or his or her legal guardian has given voluntary informed consent. Only after the Board has made an affirmative finding of consent is it to “review the proposed operation and make a determination of whether or not the operation has clinical merit and is an appropriate treatment for the specific patient.” In order for a treatment to be deemed appropriate, all other therapies must have been tried without success. OR. REV. STAT. § 426.700-.755 (1984).

23 ALASKA STAT. § 47.30.825(g) (1984) (patient must also give informed consent unless patient is a minor who is either too young or too disabled to do so in which case it must be obtained from minor's legal guardian); see ARIZ. REV. STAT. ANN. § 36-540(E) (1984) (informed consent of patient or legal guardian required as well); see OHIO REV. CODE ANN. § 5122.27.1(B) (Anderson 1984) (patient also required to give “informed, knowing, and intelligent consent“; no court order required for “legally competent and voluntary patient in a nonpublic hospital“).

24 MASS. ANN. LAWsch. 123, § 23 (Law. Coop. 1984); cf. ARK. CODE ANN. § 20-47-218(b)(2) (Supp. 1987) (ECT not to be used during “initial period of evaluation and treatment“); D.C. CODE ANN. § 6-1966 (1984) (convulsive therapy not to be given to mentally retarded).

25 ALASKA STAT. § 47.30.825(f) (1984) (same rule for aversive conditioning); ARK. CODE ANN. §§ 20-47-218(b)(3), -220(b)(7) (Supp. 1987) (right to refuse convulsive therapy except that, during 45 or 180 day commitment, ECT can be administered over patient's objection “only if the Probate Court is presented with clear and convincing proof that such treatment is necessary“); N.J. REV. STAT. ANN. § 30:4-24.2.d(2) (West 1984) (court order if patient has been adjudicated incompetent); see CONN. GEN. STAT. § 17-206d(d) (1984) (three physicians to make initial determination of incapacity; probate court may then order shock therapy only if it finds that the patient lacks capacity and that there is “no other reasonable alternative procedure.“); cf. LA. REV. STAT. ANN. § 28:171.F (West 1984) (court order following hearing required for administration of ECT to patients “confined by emergency certificate, judicial commitment, or noncontested status,” except when three physicians determine that patient's condition may be life-threatening unless ECT given).

26 DEL. CODE ANN. tit. 16, § 5161(a)(2)d (1984); FLA. STAT. ANN. § 458.325 (West 1984) (requiring prospective review by another physician); ILL. ANN. STAT. ch. 91-1/2, para. 2-110 (Smith-Hurd 1984) (unless minor or under guardianship, patient's written and informed consent required; otherwise, court must authorize parent or guardian to give informed consent); MICH. COMP. LAWS ANN. § 330.1716 (West 1984) (if no guardian or person with legal custody available, court may consent after hearing); S.C. CODE ANN. § 44-23-1010 (Law. Co-op. 1984) (proxy consent acceptable if shock treatment is necessary for patient “who is deemed medically incompetent“). Contra WASH. REV. CODE ANN. § 11.92.040(3)(a) (1985) (specifying that guardians do not have power to consent to convulsive therapy, but must petition for court order).

New York provides that patients under 18 years of age may receive ECT only with the consent of their parents or legal guardians, or, if one of those persons is unavailable or objects, or if a patient with capacity to understand objects, then only by court order. If a competent patient of 18 years or older objects to ECT, only a court order to preserve life or limb may override his or her objection. If, in the opinion of the chief of service, such a patient lacks capacity, consent must be obtained from the spouse, a parent, an adult child, or a court. If the patient's capacity is not clear, the director must obtain and consider the opinion of “a qualified consultant who is not an employee of the facility” in determining whether the patient can consent. N.Y COMP. CODES R. & REGS. tit. 14, § 27.9 (1982). The regulations nowhere provide for review of the director's determination of capacity. Prior to the promulgation of the regulations, however, the court in New York Health & Hosp. Corp. v. Stein, 70 Misc. 2d 944, 335 N.Y.S.2d 461 (1972) held that, in order to grant a petition authorizing the administration of ECT over the refusal of an involuntarily committed patient, it must first be convinced that he or she lacked the capacity to consent.

27 CAL. WELF. & INST. CODE § 5326.85 (West 1984).

28 An involuntarily committed patient may be given such therapy only if the treating or attending physicians and two psychiatrists or neurologists agree that all reasonable modalities have been considered and that convulsive treatment is “definitely indicated and is the least drastic alternative.” CAL. WELF. & INST. CODE §§ 5326.7(a)&(b) (West 1984); see In re Fadley, 159 Cal. App. 3d 440, 446, 205 Cal. Rptr. 572, 575 (1984) (citation omitted) (court not to review “whether ECT is definitely indicated and the least drastic alternative available to the patient,” because this is a “purely medical determination“). The requirement in an earlier version of the statute that convulsive treatment be given only when “critically needed for the welfare of the patient” was stricken as impermissibly vague in Aden v. Younger, 57 Cal. App. 3d 662, 677, 129 Cal. Rptr. 535, 544-45 (1976).

29 If both the patient's treating physician and his or her attorney agree that the patient has capacity to consent, the patient may receive ECT only after giving written informed consent to a specified maximum number of treatments over a specified maximum period of time not longer than 30 days. If either the physician or attorney believe that the patient lacks capacity to consent, defined as the inability to “understand, or knowingly and intelligently act upon” the information required to be disclosed, CAL. WELF. & INST. CODE §§ 5326.2 & .5(c) (West 1984), then a court shall determine the patient's capacity. Id. at § 5236.7(e) & (f). If the court finds the patient incapable of consenting, consent may be obtained from the responsible relative, guardian, or conservator. Id. at § 5326.7(g). It remains unclear what standard the courts will use in determining incapacity. In Lillian F. v. Superior Court., 160 Cal. App. 3d 314,206 Cal. Rptr. 603 (1984), the court required clear and convincing evidence of incapacity. By contrast, in In re Fadley, 159 Cal. App.3d 440, 205 Cal. Rptr. 572 (1984), the court did not address the standard of review, but reasoned that the patient's testimony that she did not need ECT and that she had been told that her mind was “all right” showed that she did not understand the information she had been given, and hence was incapable of giving consent. Although the Fadley court's rationale can be read as holding simply that appreciation of the presence of disease is a necessary prerequisite for informed consent, it comes perilously close to holding that treatment refusal itself is sufficient to demonstrate incapacity, a result that would vitiate the purpose of informed consent.

Voluntarily committed patients are entitled to the same procedural protections before they can be given convulsive treatment except that the treating physician's determination of the need for the therapy is not subject to review by other physicians and the patient's capacity to consent is to be certified by a neurologist or psychiatrist, rather than by an attorney. § 5326.75. The prior statute's requirement of substantive review of the physician's recommendation for voluntary and competent patients was held to be an unconstitutional infringement “upon the patient's right to privacy in selecting and consenting to treatment” in Aden v. Younger, 57 Cal. App. 3d 662, 684, 129 Cal. Rptr. 535, 549 (1976) (citing Doe v. Bolton, 410 U.S. 179 (1973)).

30 Psychotropic drugs are ones that primarily influence mental functioning. P. TYRER, , DRUGS IN PSYCHIATRIC PRACTICE 3 (1982)Google Scholar. Neuroleptic or antipsychotic drugs are a specific subset of the psychotropic drugs that reduce thought disorder or psychosis. Id. at 5. The effects of these drugs are reviewed at length in Gelman, Mental Hospital Drugs, Professionalism, and the Constitution, 72 GEO. L.J. 1725, 1740-46 (1984)Google Scholar; see also H. STANCER, P. GARFINKEL & V. RAKOFF, GUIDELINES TO THE USE OF PSYCHOTROPIC DRUGS 139-293 (1984).

31 Cole, Patients’ Rights versus Doctors’ Rights: Which Should Take Precedence!, in REFUSING TREATMENT IN MENTAL HEALTH INSTITUTIONS—VALUES IN CONFLICT 56, 57 (A.E. Doudera & J.P. Swazey eds. 1982) (citations omitted) [hereinafter REFUSING TREATMENT].

32 These effects have been the subject not only of scientific inquiry but also of recent literature. See, e.g., N. MAILER, THE EXECUTIONER's SONG 328, 399-400, 405, 468-69 (1979); M. PIERCY, WOMAN ON THE EDGE OF TIME 54 (1976); S. SHEEHAN, Is THERE No PLACE ON EARTH FOR ME? (1982).

33 Compare Roth & Appelbaum, What We Do and Do Not Know About Treatment Refusals in Mental Health Institutions, in REFUSING TREATMENT, supra note 31, at 184, 186 (tardive dyskinesia relatively rare after short term treatment) with Davis v. Hubbard, 506 F. Supp. 915, 929 (N.D. Ohio 1980) (symptoms of tardive dyskinesia are common among residents of mental institutions).

34 See S. SHEEHAN, supra note 32, at 136-37, 149.

35 Appelbaum, & Gutheil, , The Boston State Hospital Case: “Involuntary Mind Control,” the Constitution, and the “Right to Rot,” 137 AM. J . PSYCHIATRY 720, 721 (1980)Google Scholar.

36 E.g., Davis v. Hubbard, 506 F. Supp. 915, 926 (N.D. Ohio 1980) (district court found that psychotropic drugs were used for staff convenience and as punishment and that drugs were frequently prescribed by both licensed and unlicensed physicians who often had not examined the patients); Rogers v. Commissioner Dep't Mental Health, 390 Mass. 489, 508-09, 458 N.E.2d 308, 320-21 (1983) (citing cases and secondary sources).

37 See Goleman, State Hospital Accused of Wrong Diagnoses, Fueling Debate Over Nation's Mental Care, N.Y. Times, Apr. 23, 1985, at CI, col. 3 (arguing that depression is frequently misdiagnosed as schizophrenia so that patients are inappropriately given antipsychotic drugs, exposing them to needless risk of tardive dyskinesia and often exacerbating the depression).

38 N.C. GEN. STAT. § 122C-57(b)(c) (1986); see LA. REV. STAT. ANN. § 171.P. (West 1984) (does not include right not to be given excessive medication); N.J. REV. STAT. § 30:4-24.2.d(l) (1984) (in addition, physician must review drug regimen at least weekly; drug prescriptions must terminate within 30 days; drugs cannot be used “as a substitute for a treatment program, or in quantities that interfere with the patient's treatment program“); S.C. CODE ANN § 44-23-1010 (Law. Co-op. 1984) (authorization of treatment not to exceed 90 days; “right to refuse any treatment not recognized as standard psychiatric treatment“); cf. D.C. CODE ANN. § 6-1966(h) (1984) (mentally retarded). Under Kansas law, patients have only the right “to have explained, if requested, the nature of all medication … prescribed, the reason for the prescription, and the most common side effects.” KAN. STAT. ANN. § 59-2929(7) (1984).

39 CONN. GEN. STAT. § 17-206d(b) (1984) (“[i]nvoluntary patients may receive medication … without their consent …“); MINN. STAT. § 253 B.03, subd. 6 (1986), discussed in Jarvis v. Levine, 403 N.W.2d 298 (Minn. App. 1987), cert. granted, id.;see Wis. STAT. ANN. §§ 51.59(b) & 51.61(g) & (h) (West 1984) (involuntarily committed patient does not have right to refuse treatment except when objections based upon the tenets of a “recognized religious organization” of which the patient is a member may be honored). The Wisconsin statute was found to deny equal protection under the state constitution in State ex rel Jones v. Gerhardstein, 416 N.W.2d 883 (Wis. 1987).

40 The New Jersey legislature expressly granted voluntary mental patients the right to refuse unwanted medication, N.J. REV. STAT. § 30:4-24.2(d)(l) (1984), a provision that led a state court to hold that involuntarily committed patients do not have such rights. In re the Hospitalization of B., 156 N.J. Super. 231, 383 A.2d 760 (Law Div. 1977).

Despite this reluctance by the legislature, New Jersey developed elaborate procedures to govern the use of psychotropic drugs, which were promulgated in the Division of Mental Health and Hospitals Administrative Bulletin 78-3, quoted in Rennie v. Klein, 462 F. Supp. 1131, 1148-51 (D.N.J. 1978) (motion for preliminary injunction denied), 476 F. Supp. 1294 (D.N.J. 1979) (class certified; preliminary injunction granted), modified, 653 F.2d 836 (3rd Cir. 1981) (en banc), vacated, 458 U.S. 1119 (1982), on remand, 720 F.2d 266 (3rd Cir. 1983) (en banc). These regulations define medication as a necessary part of the treatment plan when either (1) “[t]he patient is incapable, without medication, of participating in any treatment plan available at the hospital that will give him a realistic opportunity of improving his condition,” or (2) even if it is possible to develop an available, effective treatment plan without medication, either a plan with medication will lead to improvement “within a significantly shorter time period” or the patient will present a serious risk of harm if medication is not given. See discussion in text, Section II (B). They also provide that drugs can be given if they are essential “to prevent death of or serious consequences to a patient …. “ See discussion in text, Section II (A). If the patient refuses to take medication, the attending physician must talk with the patient and the treatment team. If the patient has not been adjudicated incompetent, the medical director of the institution must review the case and may authorize medication so long as it is “necessary.” Thus, the decision to treat and the process of review occur entirely within the confines of the institution.

41 See, e.g., ARIZ. REV. STAT.ANN. § 36-511-36-513 (1984) (right to refuse psychiatric treatment subject to regulations, and to refuse treatment for mental disorder during evaluation except for seclusion or restraint in event of emergency); HAWAII REV. STAT. § 334E-2(a)(9) & (b) (1984) (“except in emergency situations or where court order exists” and “qualified by reasonableness in view of the circumstances“); IDAHO CODE § 66-34-(a)(4) & (c) (1984) (facility director may make treatment decisions only in the event of emergency or after a “court has determined that a patient lacks capacity to make informed decisions about treatment“); ILL. ANN. STAT. ch. 91-1/2, para. 2-207 (Smith-Hurd 1984) (only patient or his or her guardian has right to consent to treatment; refusal can be overridden only if necessary to prevent serious harm to self or others); KY. REV. STAT. ANN. §§ 202A.191(l)(c) & 202A.196 (Baldwin 1984) (if involuntary patient refuses to participate in treatment plan after consultation with review board, hospital may request hearing in which court is to consider “(a) [w]hether the treatment is necessary to protect other patients or the patient himself from harm; (b) [w]hether the patient is incapable of giving informed consent to the proposed treatment; (c) [w]hether any less restrictive alternative treatment exists; and (d) [w]hether the proposed treatment carries any risk of permanent side effects“); NEV. REV. STAT. § 449.720.2 (1984) (right to refuse “to the extent permitted by law and to be informed of the consequences of that refusal“); WASH. REV. CODE ANN. § 11.92.040(3)(d) (1985) (guardians do not have power to consent to “[o]ther psychiatric or mental health procedures which are intrusive on the person's body [sic] integrity“).

42 See PRESIDENT's COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, MAKING HEALTH CARE DECISIONS 83 & n.17 (1982)Google Scholar; Lidz, & Meisel, , Informed Consent and the Structure of Medical Care, in PRESIDENT's COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, 2 MAKING HEALTH CARE DECISIONS 317, 333-34 (1982)Google Scholar.

43 Rachlin, , One Right Too Many, 3 BULL. AM. ACAD. PSCHIATRY LAW 99, 101 (1975)Google Scholar (“the involuntary patient has no right to refuse such treatment as may be considered standard and well accepted by the psychiatric profession“; experimental programs and surgery, however, subject to refusal).

44 See Robbins v. Footer, 553 F.2d 123 (D.C. Cir. 1977); Hood v. Phillips, 554 S.W.2d 160 (Tex. 1977); Shilkret v. Annapolis Emergency Hosp. Ass'n, 276 Md. 187, 349 A.2d 245 (1975); Zoterell v. Repp. 187 Mich. 319, 153 N.W. 692 (1915). The courts have, on occasion, stated that liability will not be imposed for treatments that, although not those provided by the “reasonably prudent practitioner,” are nonetheless espoused by at least a “respectable minority” of the medical profession. See Leech v. Bralliar, 275 F. Supp. 897 (D. Ariz. 1967); Baldor v. Rogers, 81 So. 2d 658 (Fla. 1955). Contra Hood v. Phillips, supra (specifically rejecting “respectable minority” standard). Even compliance with “reasonable medical practice,” however, will not always immunize physicians from liability. See, e.g., Helling v. Carey, 83 Wash. 2d 514, 519 P.2d 981 (1974) (liability imposed on physician who had exercised reasonable medical care in not testing for glaucoma, where cost of test was low and risk to be avoided was great). But see WASH. REV. CODE ANN. § 4.24.290 (1985) (reversing Helling v. Carey). Whatever rule is applied, it is important to note that physicians who work for state institutions often have at least a qualified immunity from damages. See discussion at note 199, infra.

45 Appelbaum, & Gutheil, , The Right to Refuse Treatment: The Real Issue is Quality of Care, 9 BULL. AM. ACAD. PSYCHIATRY & L. 199, 200 (1981)Google Scholar [hereinafter Quality of Care].

46 This refers to punishment outside the context of aversive treatment to which the patient has consented.

47 Indeed, Congress recently defined “abuse” as including “the use of bodily or chemical restraints on a mentally ill individual which is not in compliance with Federal and State laws and regulations.” 42 U.S.C. § 10802(1)(D) (Supp. 1987).

In many instances, prisoners have alleged that such use constitutes cruel and unusual punishment in violation of the eighth amendment. See, e.g., Nelson v. Heyne, 491 F.2d 352, 356-57 (7th Cir.), cert, denied, 417 U.S. 976 (1974) (use of psychotropic drugs for control of 12 to 18 year-old boys in correctional institution without trying other medications and without adequate medical guidance is cruel and unusual punishment); Knecht v. Gillman, 488 F.2d 1136, 1140 (8th Cir. 1973) (use of apomorphine, which causes vomiting, as aversive stimulus “for committing some minor breach of the rules can only be regarded as cruel and unusual unless the treatment is being administered to a patient who knowingly and intelligently has consented to it.“); Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973) (use of succinylcholine as experimental mode of aversive therapy without consent sufficient to raise question of cruel and unusual punshiment); Pena v. New York State Div. of Youth, 419 F. Supp. 203, 207-11 (S.D.N.Y. 1976) (use of isolation, hand and feet restraints, and psychotropic drugs to control excited behavior in children may violate eighth amendment). Courts generally have rejected such claims when made on behalf of the involuntarily committed mentally ill. See Rennie v. Klein, 462 F. Supp. 1131, 1143 (D.N.J. 1978) (rejecting argument that use of prolixin violated eighth amendment), remanded, 653 F.2d 836 (3d Cir. 1981), vacated and remanded, 458 U.S. 1119 (1982); cf. Rogers v. Okin, 478 F. Supp. 1342, 1373 (D. Mass. 1979) (seclusion rooms, even though “dirty, stark, austere and smelly,” did not violate eighth amendment). But see In re K.K.B., 609 P.2d 747, 751 (Okla. 1980) (use of drugs as punishment violates eighth amendment).

48 See e.g., Davis v. Hubbard, 506 F. Supp. 915 (N.D. Ohio 1980) (court found that psychotropic drugs were used for staff convenience and as punishment and that drugs were frequently prescribed by both licensed and unlicensed physicians who often had not examined patients); Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 508-09, 458 N.E.2d 308, 320-21 (1983) (citing cases and secondary sources); cf. Large v. Superior Court, 148 Ariz. 229, 714 P.2d 399 (1986) (explicit use of drugs as chemical restraints in prison).

49 See text accompanying notes 94-114 infra (discussion of state's interests).

50 Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905).

51 Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 105 N.E. 94 (1914); Pratt v. Davis, 118 Ill. App. 161, 170 (1905), aff'd, 224 Ill. 300, 79 N.E. 562 (1906).

52 In some states, patients are legally entitled to receive only the information that reasonable practitioners would provide. See, e.g., ARK. CODE ANN. § 16-114-206(b)(l)-(2) (1987); VT. STAT. ANN. tit. 12, § 1909(a)(1) (1983).

In other states, the standard is what a reasonable patient would wish to know. Canterbury v. Spence, 464 F.2d 772, 787 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972); Wilkinson v. Vesey, 110 R.I. 606, 625, 295 A.2d 676, 689 (1972). The mere fact that the necessary information was not disclosed is insufficient to establish a case, because a patient generally may receive damages only if reasonable patients who had received adequate disclosure would have foregone the proposed intervention.

53 See Sider, , The Ethics of Therapeutic Modality Choice, 141 AM. J. PSYCHIATRY 390 (1984)Google Scholar.

54 J. KATZ, , THE SILENT WORLD OF DOCTOR AND PATIENT 104-29 (1984)Google Scholar.

55 In re the President & Directors of Georgetown College, Inc., 331 F.2d 1010, 1017 (D.C. Cir. 1964) (opinion on petition for rehearing en banc) (Burger, J., dissenting) (emphasis in the original), cert, denied, 371 U.S. 978 (1964); see Wilkinson v. Vesey, 110 R.I. 606, 624, 295 A.2d 676, 687 (1972) (“The keystone of [informed consent] is every competent adult's right to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks however unwise his sense of values may be in the eyes of the medical profession, or even the community.“).

56 See, e.g., Lane v. Candura, 6 Mass. App. Ct. 377, 376 N.E.2d 1232 (1978) (upholding right of 77 year-old woman to refuse amputation of her gangrenous leg). The classic argument against permitting individuals’ choices to be overridden in their best interest is embodied by J.S. Mill's “simple principle” that:

J.S. MILL, ON LIBERTY 13 (C.V. Shields ed. 1956). The relationship between paternalism and the rights of the mentally ill to refuse therapy is discussed in Reiser, Refusing Treatment for Mental Illness; Historical and Ethical Dimensions, 137 AM. J. PSYCHIATRY 329, 330-31 (1980)CrossRefGoogle Scholar.

57 Although the Uniform Commercial Code's prohibition of unconscionable contracts in section 2-302(1) attempts to void some overtly stupid decisions made by consumers, the very furor and consternation created by this provision illustrates that its enactment was a truly revolutionary step in the law of contracts. See generally Leff, , Unconscionability and the Code—The Emperor's New Clause, 115 U. PA. L. REV. 485 (1967)CrossRefGoogle Scholar; Wilson, , Freedom of Contract and Adhesion Contracts, 14 INT'L & COMP. L.Q. 172 (1965)CrossRefGoogle Scholar.

Notably, contracts entered into by incompetent persons are often voidable unless they benefit the incompetent or involve necessaries for him or his family. J. CALAMARI & J. PERILLO, THE LAW OF CONTRACTS 249-53 (1970).

58 See, e.g., People v. Fries, 42 Ill. 2d 446, 250 N.E.2d 149 (1969); American Motorcycle Ass'n v. Department of State Police, 11 Mich. App. 351, 158 N.W.2d 72 (1968).

59 There is no single or clear definition of what constitutes competency to consent to medical treatment. See Meisel, , The “Exceptions” to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decisionmaking, 1979 Wis. L. REV. 413, 439-53Google Scholar. Professor Meisel discusses four possible approaches to such a determination: (1) Did the patient make a decision? (2) Was his or her decision-making process adequate? (3) Was the decision appropriate? (4) Did he or she actually understand all the information? Although I do not purport to deal with this in any depth, I do support a defintion that requires the patient to have some understanding of the issues at stake and to have weighed them in some manner. A definition that requires pure rationality or full understanding is too restrictive for the reasons set forth in the text. An approach that looks only at the propriety of the ultimate decision is unacceptable because it eviscerates the individual decision-making that informed consent is meant to vindicate. On the other hand, deeming competent everyone who can express a decision is too broad. Whatever definition of competence is used, it is widely acknowledged that many mentally ill patients nonetheless remain competent to make treatment decisions. A., STONE, LAW, PSYCHIATRY & MORALITY 155 (1984)Google Scholar; Rogers v. Okin, 478 F. Supp. 1342, 1361-63 (D. Mass. 1979) (even involuntary commitment does not necessarily mean patient is incompetent); cf. Rivers v. Katz, 67 N.Y.2d 485, 494-96, 495 N.E.2d 337, 342-43, 504 N.Y.S.2d 74, 79-80 (1986) (same); State ex rel. Jones v. Gerhardstein, 416 N.W.2d 883, 890 (Wis. 1987) (same).

60 PRESIDENT's COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, MAKING HEALTH CARE DECISIONS 179 (1982).

61 Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 747, 370 N.E.2d 417, 428 (1977); see also In re Brooks’ Estate, 32 Ill. 2d 361, 373, 205 N.E.2d 435, 442 (1965) (upholding Jehovah's Witness's rejection of blood transfusion at risk of death “[e]ven though we may consider [her] beliefs unwise, foolish or ridiculous“).

62 In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987); In re Conroy, 98 N.J. 321, 353-54, 486 A.2d 1209, 1225(1985); Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 1137-41, 225 Cal. Rptr. 297, 300-03 (1986); Satz v. Perlmutter, 362 So. 2d 160 (Fla. Dist. Ct. App. 1978), aff'd, 379 So. 2d 359 (Fla. 1980).

63 Brophy v. New England Sinai Hospital, 398 Mass. 417, 428, 497 N.E.2d 626, 631-32 (1986); In re Peter, 108 N.J. 365, 529 A.2d 419 (1987); In re Conroy, 98 N.J. 321, 360-61, 486 A.2d 1209, 1229 (1985); In re Storar, 52 N.Y.2d 363, 378-80, 420 N.E.2d 64, 72, 438 N.Y.S.2d 266, 274 (1981). In addition, many legislatures have enacted statutes enabling individuals to make advance directives that certain types of medical care be withheld in the event of terminal illness. See, e.g., Wis. STAT. ANN. § 154 (West Supp. 1986) (“living will“); DEL. CODE ANN. tit. 16, §§ 2501-2508 (1984) (“living will” and durable power of attorney). These directives differ in terms of their enforceability. Compare Wis. STAT. ANN. § 154.07(l)(c) (West Supp. 1986) (no civil or criminal liability for physician who fails to comply with terms of directive except that failure to make good faith effort to transfer the patient to a physician who will comply constitutes unprofessional conduct) with ILL. ANN. STAT. ch. 110-1/2, para. 706(b) & (c) (Smith-Hurd Supp. 1987) (no similar limitation on civil or criminal liability for failure to comply).

64 In re Jobes, 108 N.J. 395, 529 A.2d 434 (1987); In re Quinlan, 70 N.J. 10, 41-42, 355 A.2d 647, 664, cert, denied, 429 U.S. 922 (1976); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 752-53, 370 N.E.2d 417, 430-32 (1977).

65 Gutheil, & Appelbaum, , The Substituted Judgment Approach: Its Difficultites and Paradoxes in Mental Health Settings, 13 LAW MED. & HEALTH CARE 61 (1985)CrossRefGoogle Scholar; Eisenberg, , Barnes, , & Gutheil, , Involuntary Commitment and the Treatment Process: A Clinical Perspective, 8 BULL. AM. ACAD. PSYCHIATRY & L. 44, 47 (1980)Google Scholar; Katz, , The Right to Treatment—An Enchanting Legal Fiction?, 36 U. CHI. L. REV. 755, 761-62, 768; 770-71 (1969)CrossRefGoogle Scholar.

Phil Brown succinctly reviews the studies of patients’ reasons for refusing medication in Brown, Psychiatric Treatment Refusal, Patient Competence, and Informed Consent, 8 INT'L J.L. PSYCHIATRY 83, 85–89 (1986)Google Scholar. Compare, e.g., Appelbaum, & Gutheil, , “Rotting With Their Rights On“: Constitutional Theory and Clinical Reality in Drug Refusal by Psychiatric Patients, 7 BULL. AM. ACAD. PSYCHIATRY L. 306 (1979)Google ScholarPubMed (reasons given for rejecting medication ranged from none at all, anger or seemingly irrelevant reasons, and overt delusions from side effects (only some of which were physiologically based) to, on rare occasions, rights of privacy and legal rights) [hereinafter cited as Drug Refusal] with Hassenfeld, & Grumet, , A Study of the Right to Refuse Treatment, 12 BULL. AM. ACAD. PSYCHIATRY & L. 65 (1984)Google Scholar (half of patients cited unacceptable effects of drugs for their decisions, while two refusals were based on unwillingness to admit that there was anything wrong and two arose from disease process itself) and with Van Putten, , May, & Marder, , Response to Antipsychotic Medication: The Doctor's and the Consumer's View, 141 AM. J. PSYCHIATRY 16Google Scholar (many refusals due to dysphoric response to drugs).

66 Katz, supra note 65, at 773 (suggesting also that “organic, treatment modalities … could be restricted to interventions which either quickly return a person to his prior functioning, leading to release, or restore his ability to make decisions about further treatment.“); see also Rhoden, , The Presumption for Treatment: Has It Been Justified?, 13 LAW MED. & HEALTH CARE 65 (1985)CrossRefGoogle Scholar (arguing persuasively that inability to determine patient's true wishes does not justify “best interests” decision).

67 C.W., LIDZ, A., MEISEL, E., ZERUBAVEL, M., CARTER, R.M., SESTAK & L.H., ROTH, INFORMED CONSENT: A STUDY OF DECISIONMAKING IN PSYCHIATRY 203-07, 232, 319-20 (1984)Google Scholar. By contrast, these researchers observed that both staff and patients generally believed that the latter should have a much greater role in deciding whether they should undergo ECT. The authors noted somewhat wryly, however, that despite patients’ reservations, all patients who the staff strongly believed needed ECT ultimately agreed to receive the therapy, so that even there, “doctor's orders” prevailed. Id. at 210-13, 233-34.

68 Id. at 205, 207.

69 Id. at 232.

70 The hospital in which this research occurred is a respected teaching institution with good staff, a condition not universal in mental institutions. Moreover, the research ward in which these findings were made is thought to provide the best care in the hospital and to place unusually great importance on patient involvement. Id. at 232.

71 See, e.g., Gill, Side Effects of a Right to Refuse Treatment Lawsuit: The Boston State Hospital Experience, in REFUSING TREATMENT, supra note 31, at 81; Gutheil, & Appelbaum, , Substituted Judgement and the Physician's Ethical Dilemma: With Special Reference to the Problems of the Psychiatric Patient, 41 J. CLINICAL PSYCHIATRY 303, 304-05 (1980)Google Scholar.

72 See AMERICAN MEDICAL ASSOCIATION, CODE OF ETHICS ch. 1, art. II.6 (1847), reprinted in J. KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 230, 232-33 (1984).

73 In re Caulk, 125 N.H. 226, 232, 480 A.2d 93, 97 (1984); John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 583, 279 A.2d 670, 673 (1971); Bouvia v. County of Riverside, No. 159780 (Super. Ct., Riverside County, Cal., Dec. 16, 1983), quoted in Annas, When Suicide Prevention Becomes Brutality: The Case of Elizabeth Bouvia, HASTINGS CENTER REP., April 1984, at 20 (” ‘The established ethics of the medical profession clearly outweigh and overcome her own right of self-determination.'“); cf. Brophy v. New England Sinai Hosp., 398 Mass. 417, 439-41, 497 N.E.2d 626, 638-39 (1986) (despite patient's right to refuse food and hydration, hospital could not be forced to remove G-tube. It could, however, insist patient be transferred to another institution).

74 Parham v. J.R., 442 U.S. 584, 608-16 (1979) (physicians to decide whether children are appropriately committed to mental institutions); see also Gelman, supra note 30; cf. Youngberg v. Romeo, 457 U.S. 307 (1982) (discussed infra in text accompanying notes 128-33).

75 See Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 744, 370 N.E.2d 417, 427 (1977) (“if the doctrines of informed consent and right to privacy have as their foundations the right to bodily integrity … and control one's own fate, then those rights are superior to the institutional considerations” of maintaining medical mores) (citation and footnote omitted); Rivers v. Katz, 67 N.Y.2d 485, 495 n.6, 495 N.E.2d 337, 343 n.6, 504 N.Y.S.2d 74, 80 n.6 (1986).

76 Reiser, supra note 56, at 331.

77 P. STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE (1982); see also J. KATZ, supra note 72, at 30-47 (1984).

78 See Wis. STAT. ANN. § 939.491 (1982); W. LAFAVE & A. SCOTT, CRIMINAL LAW 399-402 (1972).

79 The staff's right to self-defense is not really what is at issue; the far more frequent use of other reasons to support the right to treat, such as the importance of the physician's ethical mandate to act in the patient's best interests and the need to protect the institution's interests indicate this fact.

80 If one interprets a patient's rejection of proposed treatment as equivalent to a discharge of the physician, a reasonable analysis at least in some instances where the patient consulted the physician for one specific problem, the physician has no further obligations to the patient. In the event that the patient's rejection was not sufficient in itself to terminate the relationship—for example, if the patient's long-term physician proposed a therapy that the patient found unacceptable—the physician could then ‘fire” the patient, either by referring the patient elsewhere or by giving the patient notice and continuing to treat until the patient had had a reasonable opportunity to obtain alternate care. Failure in the latter instance either to refer or to treat for a reasonable period might give rise to a claim for abandonment. See Ascher v. Guiterrez, 533 F.2d 1235, 1236 (D.C. Cir. 1976); Payton v. Weaver, 131 Cal. App. 3d 38, 182 Cal. Rptr. 225 (1982); S.E. PEGALIS & H.F. WACHSMAN, AMERICAN LAW OF MEDICAL MALPRACTICE §§ 2.3, 2.12, 2.14 (Supp. 1986). If the physician chooses not to end the relationship, however, and as long as he or she is willing to give some reasonable medical care, he or she does not abandon the patient by refusing to provide the particular care that the patient wants.

81 See Restatement (Second) of Contracts § 5367(1) (1981) (“A promise to render personal service will not be specifically enforced.“).

82 As a general rule, even the most ardent advocates of patient autonomy do not suggest that physicians be required either to provide or inform patients of interventions that fall outside the confines of “reasonable medical practice.” Brett, & McCullough, , When Patients Request Specific Interventions: Defining the Limits of the Physician's Obligation, 315 NEW ENG. J. MED. 1347 (1986)CrossRefGoogle Scholar; see Tomlinson, & Brody, , Ethics and Communication in Do-Not-Resuscitate Orders, 318 NEW ENG. J. MED. 43 (1988)CrossRefGoogle Scholar (arguing that one may enter DNR order without discussion with patient where resuscitation would be futile). But see Cmich, , Theoretical Perspectives of Holistic Health, 54 J. SCHOOL HEALTH 30 (1984)CrossRefGoogle Scholar (advocating interdisciplinary approach, including acupuncture, yoga, meditation, and biofeedback); Read, , Holistic Health From the Inside, 53 J. SCHOOL HEALTH 382 (1983)CrossRefGoogle Scholar (interview with physician founder of Holistic Health Centre who criticizes narrow focus of allopathic medicine).

83 See Cobbs v. Grant, 8 Cal. 3d 229, 241-42, 502 P.2d 1, 9-10, 104 Cal. Rptr. 505, 513-14 (1972) (en banc) (rejecting argument that there are “strong policy reasons for vesting in the medical community the unquestioned discretion to determine if the withholding of information by a doctor from his patient is justified” because “it is the prerogative of the patient, not the physician, to determine for himself the direction in which he believes his interests lie“); cf Canterbury v. Spence, 464 F.2d 772, 785 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972) (amount of disclosure often a “non-medical judgment“) (footnote omitted).

84 See PRESIDENT's COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, MAKING HEALTH CARE DECISIONS 74-75 (1982) (99% of physicians state that they usually, if not always, discuss diagnosis and prognosis with patients).

85 For instance, physicians in the past often elected not to tell their patients about proposed therapies in order to avoid objections. See Pratt v. Davis, 118 Ill. App. 161, 170 (1905), aff'd, 224 Ill. 300, 79 N.E. 562 (1906) (physician informed patient about proposed operation only enough to induce her to walk voluntarily rather than to be carried to operating room). By contrast, it is now generally conceded that the “therapeutic privilege” to limit disclosure cannot justify withholding information for fear that the patient will refuse therapy, but rather can be invoked, if at all, only if the disclosure itself will harm the patient. See Canterbury v. Spence, 464 F.2d 772, 789 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972); Wilkinson v. Vesey, 110 R.I. 606, 628, 295 A.2d 676,689 (1972).

86 See, e.g., CAL. HEALTH & SAFETY CODE § 3125 (West 1984); ILL. ANN. STAT. ch. 34, para. 419 (Smith-Hurd 1984); IND. CODE ANN. § 16-1-9-2 (West 1984); Wis. STAT. ANN. § 143.03 (West 1984).

87 See, e.g., TEX. REV. CIV. STAT. ANN. art. 4495b, § 5.08 (Vernon 1984) (repealed 1986); Wis. STAT. ANN. § 905.04 (West 1984).

88 For instance, in the classical fiduciary relationship, that between a trustee and beneficiary, the trustee is required to make full disclosure to and to avoid any conflicts of interest with the beneficiary. RESTATEMENT (SECOND) OF TRUSTS § 170 (1959).

89 Judge Adams noted that the involuntarily committed “are not in a position to ‘shop around’ for a second opinion, to reject the treatment prescribed, or to insist upon their right to ‘informed consent’ “ and reasoned that “[b]ecause such patients are dependent on the state they must be granted a measure of protection beyond that afforded the average citizen” by the tort of medical malpractice. Rennie v. Klein, 720 F.2d 266, 271 (3rd Cir. 1983) (Adams, J., concurring).

90 See supra note 80.

91 This would also make Ulysses contracts or durable powers of attorney (in which the mentally ill agree in times of competence to receive therapy if they become incompetent) seem more acceptable for outpatients than for voluntary inpatients, if permissible at all. Similarly, for patients in institutions, the contracts seem more appropriate for the voluntarily committed than for the involuntarily committed, as each successive loss of freedom makes the situation surrounding the formation of such a contract or power of attorney inherently more coercive. Compare Howell, Diamond, & Wikler, Is There a Case for Voluntary Commitment?, in CONTEMPORARY ISSUES IN BIOETHICS 163 (T.L. Beauchamp & L. Walters 2d ed. 1982) with Dresser, Bound to Treatment: The Ulysses Contract, HASTINGS CENTER REP., June 1984, at 13.

92 In re Caulk, 125 N.H. 226, 480 A.2d 93 (1984) (prisoner).

93 A. STONE, supra note 59, at 147-48; Nelson, Should There Be a Right to Refuse Treatment?, in REFUSING TREATMENT, supra note 31, at 88, 91.

94 The Eighth Circuit recently upheld involuntary medication on the ground that the patient's liberty interest had been overridden by “the government's legitimate objective to return [the patient's] behavior to that which is acceptable to society … .” Dautremont v. Broadlawns Hosp., 827 F.2d 291, 300 (8th Cir. 1987). This justification, which has no clear origin in the law, is inadequate because it provides no limits to governmental intervention.

95 See supra note 86.

96 See, e.g., CAL. HEALTH & SAFETY CODE § 3380 (West 1984) (requiring proof of vaccination before child can enter school); Wis. STAT. ANN. § 140.05 (West 1984) (same).

97 See, e.g., ILL. ANN. STAT. ch. 111-1/2, para. 22 (Smith-Hurd 1984); IND. CODE ANN. § 16-1-9-3 (West 1984); Wis. STAT. ANN. § 143.05 (West 1984). The state's power to impose quarantines has traditionally been subject to few procedural protections. For instance, the Wisconsin quarantine statute provides that the “diagnostic report of a physician, the notification or confirmatory report of a parent or caretaker of the patient, or a reasonable belief in the existence of a communicable disease requires the health officer immediately to quarantine … . “ In addition, it confers upon the health officer the power, inter alia, to placard, to appoint quarantine guards with police powers, and to relocate the patient if the officer deems it necessary, all without provision for review. § 143.05.

98 See, e.g., IND. CODE ANN. § 16-14-9.1-10 (West 1984); Wis. STAT. ANN. § 51.20 (West 1984).

99 This interest, although important, does not always justify intervention. If the behavior complained of is merely unaesthetic or annoying—in other words, if it is of the sort that would not justify commitment—then it is unclear why inpatients should be any more entitled than the general public to be shielded from such actions. If, on the other hand, the behavior is seriously violent, isolation or unwanted medication could be warranted, but in this instance its use ought to be viewed primarily as restraint, justified under the police power, rather than as therapy. See Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 508-09, 458 N.E.2d 308, 320-21 (1983); Rivers v. Katz, 67 N.Y.2d 485, 495 n.6, 495 N.E.2d 337, 343 n.6, 504 N.Y.S.2d 74, 80 n.6 (1986). By contrast, Professor Alan Stone asserts the interests of other inpatients in the control of another's “crazy behavior” as a justification for involuntary medication. A. STONE, supra note 59, at 153-54.

100 See, e.g., IND. CODE ANN. § 16-14-9.1-10 (West 1984); Wis. STAT. ANN. § 51.20 (West 1984).

101 See S. REP. NO. 712, 96th Cong., 2d Sess. 81, reprinted in 1980 U.S. CODE CONG. & AD. NEWS 3372, 3448 (“While a judicial commitment authorizes one's physical detention, it does not automatically follow that the state may force a competent individual to undergo any and all forms of treatment. A patient still retains separate rights to privacy.“) [hereinafter SENATE REPORT].

102 See Gutheil & Appelbaum, The Patient Always Pays: Reflections on the Boston State Case and the Right to Rot, MAN & MED., Jan. 1980, at 3.

103 But see Price v. Sheppard, 307 Minn. 250, 259, 239 N.W.2d 905, 911 (1976) (if state's interest as parens patriae is “sufficiently important to deprive an individual of his physical liberty,” it is also “sufficiently important for the state to assume the treament decision“).

104 C.M., CULVER & B., GERT, PHILOSOPHY AND MEDICINE: CONCEPTUAL AND ETHICAL ISSUES IN MEDICINE AND PSYCHIATRY 148 (1982)Google Scholar.

105 Id. at 154-55.

106 Id. at 155-57.

107 Nelson, supra note 93 (citing longer hospital stays, increased costs and more problems in recruiting staff).

108 See Appelbaum, & Gutheil, , Drug Refusal: A Study of Psychiatric Inpatients, 137 AM. J. PSYCHIATRY 340, 342-43 (1980)Google Scholar (most patients refuse for brief periods; persistent refusers represent small part of patient population); Brown, supra note 65, at 85-89 (discussing studies, many of which show little impact on institutions); Dix, , Realism and Drug Refusal: A Reply to Appelbaum and Gutheil, 9 BULL. AM. ACAD. PSYCHIATRY & L. 180, 196(1981)Google Scholar (honoring refusals would impose little burden on institutions); Hassenfeld & Grumet, supra note 65, at 72 (no significant difference between refusing and compliant patients in terms of assaultiveness; ten persistent refusers among 1200 patients); SENATE REPORT, supra note 101, at 81-82, 1980 U.S. CODE CONG. & AD. NEWS at 3449 (rejecting “any notion that a patient consent requirement will undermine treatment relationships and cause unnecessary delays“; citing Appelbaum and Gutheil study for proposition that refusals usually only temporary). Compare Gill, supra note 71, at 85 (alleging that level of violence, anxiety, tension, and need for seclusion increased after entry of court orders granting patients right to refuse medication) with Cole, Patients’ Rights versus Doctors’ Rights: Which Should Take Precedence﹜, in REFUSING TREATMENT, supra note 31, at 56, 63-66 (observing that chaos was quickly resolved once patients and staff became acclimated to new rules, and suggesting that other factors, such as a statewide hiring freeze for mental health workers, may have contributed to tension).

109 In re Quinlan, 70 N.J. 10, 40, 355 A.2d 647, 663, cert, denied, 429 U.S. 922 (1976) (alleged interest in “defense of the right of the physician to administer medical treatment according to his best judgment“).

110 Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 741, 370 N.E.2d 417, 426-27 (1977); see supra note 75.

111 See Drug Refusal, supra note 65, at 314.

112 Wyatt v. Stickney, 325 F. Supp. 781, 785 (M.D. Ala. 1971), enforced, 344 F. Supp. 373 (M.D. Ala. 1972), aff'd in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974) (“To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process.“); Seide v. Prevost, 536 F. Supp. 1121, 1135 (S.D.N.Y. 1982) (right of children committed to psychiatric institution to receive treament based on liberty interest protected by fourteenth amendment due process clause); cf O'Connor v. Donaldson, 422 U.S. 563, 575 (1975) (cannot retain mentally ill persons in “simple custodial confinement … if they are dangerous to no one and can live safely in freedom“).

113 Cf. Bee v. Greaves, 744 F.2d 1387, 1395 (10th Cir. 1984) (pretrial detainee's constitutional right to treatment cannot be turned on its head to justify jail's right to give involuntary medication).

114 See supra note 80.

115 Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 503 & n.19, 458 N.E.2d 308, 317-18 & n.19 (1983); Furrow, , Public Psychiatry and the Right to Refuse Treatment: Toward an Effective Damage Remedy, 19 Harv. C.R.-C.L. L. Rev. 21, 23–24 (1984)Google Scholar; Cole, supra note 108, at 61-62.

116 Bonnie, The Psychiatric Patient's Right to Refuse Medication: A Survey of the Legal Issues, in REFUSING TREATMENT, supra note 31. at 27.

117 See Dix, supra note 108, at 183, 192.

118 Gill, supra note 71, at 85. In addition, guardians may have conflicts of interest with their mentally ill wards. See also Adelman v. Graves, 747 F.2d 986 (5th Cir. 1984) (alleging that temporary guardian inappropriately had ward involuntarily committed); In re Roe, 383 Mass. 415, 442-43, 421 N.E.2d 40, 56 (1981) (citing possible conflict of interest between patient son and guardian father as one reason to favor judicially determined substituted judgment).

119 Comey, Patients’ Rights: Too Much Courting, Not Enough Caring, in REFUSING TREATMENT, supra note 31, at 49, 53; see also Gutheil & Appelbaum, supra note 71 (suggesting that lower court judges are reluctant to make decisions for fear of being overturned on appeal).

120 See text at note 52, supra.

121 Cf. Hassenfeld & Grumet, supra note 65, at 72-73 (suggesting that delays entailed in administrative review of treatment refusals may be worthwhile, reasoning in part that patients who ultimately accepted treatment following review did better after discharge, perhaps because they had been allowed “to maintain some sense of autonomy, which is useful in coping with life outside the hospital“).

122 Podolski, Commitment and Other Matters: Some Comments from the Bench, in REFUSING TREATMENT, supra note 31, at 140-41.

123 Congress recently established a program to foster and fund the development of systems to advocate the rights of the inpatient mentally ill. Protection and Advocacy for Mentally Ill Individuals Act of 1986, Pub. L. 99-319, §§ 101-301, 100 Stat. 478, 478-89 (codified at 42 U.S.C. §§ 10801-10851 (Supp. 1987)). Congress found that systems for monitoring compliance with patients’ rights were often inadequate and stated, as one of its purposes, the protection of those rights. Id. at § 101, 42 U.S.C. § 10801. After setting forth elaborate requirements, Congress funded this program for three years, beginning with $10,000,000 for fiscal year 1986. Id. at § 117, 42 U.S.C. § 10827. Although this Act is a significant step forward in the protection of the mentally ill, Congress expressly stated that it did not intend to create any new rights for these patients. Id. at § 301(a), 42 U.S.C. § 10851(a). Thus, a patient could not sue a state that had failed or refused to establish an advocacy system.

124 One possible analogy is the suggestion by the United States Department of Health and Human Service, in its model guidelines for Infant Care Review Committees, that the committees, which are to include such non-medical participants as social workers, representatives of disability groups, and lay community members and which are to be advised by legal counsel, should be available within twenty-four hours to review treatment decisions involving disabled infants with life-threatening conditions. 50 Fed. Reg. 14893, 14894-96 (1985).

125 See text at note 108 supra.

126 Congress spoke to the rights of the mentally ill when it urged the states to revise their laws to incorporate an expansive patients’ bill of rights, which included a right to receive therapy in most instances only after informed consent, into its Mental Health Systems Act, Pub. L. 96-398, § 501, 94 Stat. 1564, 1598 (1980) (codified at 42 U.S.C. § 9501 (1982)). Congress, however, enacted none of the proposed enforcement provisions, such as the creation of a private right of action, finally establishing only a voluntary grant program to encourage the states to develop advocacy programs for the mentally ill. 42 U.S.C. § 9502; see H.R. CONF. REP. NO. 1367, 96th Cong., 2d Sess. 61 (1980), reprinted in 1980 U.S. CODE CONG. & AD. NEWS 3496, 3501. Even this program was repealed in 1981. Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, § 902(e)(2)(A), 95 Stat. 483, 560 (1981). Thus, it would appear that this bill of rights did not create any new substantive federal entitlements, but rather was simply hortatory. The fact that this section has been cited only twice briefly in footnotes in all the federal litigation that has followed its passage buttresses this conclusion. Rennie v. Klein, 653 F.2d 836, 852 n.17 (3rd Cir. 1981) (en banc); Rennie v. Klein, 720 F.2d 266, 270 n.10 (3rd Cir. 1983). The Congress reiterated this bill of rights in the Protection and Advocacy for Mentally Ill Individuals Act of 1986, Pub. L. 99-319, § 201, 100 Stat. 485 (codified at 42 U.S.C. § 10841 (Supp. 1987)). In the very next section, however, the Congress stated that this act was not to be construed as establishing any new rights for the mentally ill. Id. at § 301(a), 42 U.S.C. § 10851(a).

127 The initial decisions in the two preeminent cases involving the rights of involuntarily committed mental patients to refuse medication represent expansive judicial definition and protection of these rights. The first was the Rogers litigation. Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979), aff'd in part, rev'd in part, 634 F.2d 650 (1st Cir. 1980), vacated sub nom. Mills v. Rogers, 457 U.S. 291 (1982), opinion on certified issue sub nom. Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983), opinion on remand sub nom. Rogers v. Okin, 738 F.2d 1 (1st Cir. 1984). The district court in Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979) based this right on the rights to privacy and to produce ideas. Judge Tauro, United States District Judge in Massachusetts, also held that as a matter of state law, commitment did not require a finding of incompetency. Finally, the court held that even incompetent patients had the right to have their treatment decisions made by a courtappointed guardian, except in emergencies, which the court defined as substantial threats of physical harm to self or others.

On appeal, the First Circuit based the right to refuse on the right of privacy, but held that the state's police and parens patriae powers could override it in some instances. Under its police powers, the state could give medications when, in the staff's discretion, the risk of violence outweighed the chance of harm to the objecting patient and when no reasonable alternatives were available. As parens patriae, the state could give drugs to prevent deterioration of mental health even to competent patients, a ruling that modified the district court's definition of emergency. The court further held that treatment decisions regarding incompetent patients did not necessarily have to be made by guardians, but did require some proc edural protection and were to be made in accordance with what the patient would have chosen were he or she competent. Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980).

The second case was Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978) (motion for preliminary injunction denied), 476 F. Supp. 1294 (D.N.J. 1979) (class certified; preliminary injunction granted), modified, 653 F.2d 836 (3rd Cir. 1981), vacated, 458 U.S. 1119 (1982), on remand, 720 F.2d 266 (3rd Cir. 1983). The district court in Rennie v. Klein, 462 F. Supp. at 1131, 476 F. Supp. at 1294, also found a constitutional right to refuse based upon the right to privacy and held that a patient could be medicated without his or her written informed consent only in the event of emergency (which could last no more than 72 hours), certification as “functionally incompetent” by the treating physician, or following an informal review, involving a hearing before a psychiatrist unaffiliated with the institution. The district court also ordered the state to establish a system of patient advocates. On appeal, the Third Circuit held that involuntarily committed patients who have not been adjudicated incompetent have a right to refuse based upon a right of “personal security.” Rennie v. Klein, 653 F.2d 836, 844 (3rd Cir. 1981) (citing Ingraham v. Wright, 430 U.S. 651, 673 (1977)). The appellate court, however, modified the district court's decision, eliminating the requirements of written informed consent, patient advocates, and hearings before independent psychiatrists, holding, instead, that due process requirements were fulfilled by state regulations, detailed in note 40, supra, requiring in-hospital review by the medical director.

128 Youngberg v. Romeo, 457 U.S. 307 (1982).

129 Id. at 321 (quoting Judge Seitz's opinion in Rennie v. Klein, 644 F.2d at 178).

130 Id. at 323 (footnote omitted).

131 Id.

132 Id. at 322-23.

133 In Rennie v. Klein, 720 F.2d 266 (3rd Cir. 1983), the Third Circuit, sitting en banc with one judge dissenting, held that the New Jersey administrative procedures providing for in-hospital review of patients’ treatment refusals, by focusing on professional judgment, afforded adequate due process protection under Youngberg v. Romeo. The court ordered the defendants to comply with the regulations. It also agreed that the patients’ substantive constitutional rights required only the exercise of medical judgment, although it was deeply divided as to just what judgment was required.

Similarly, the Second Circuit, in Project Release v. Prevost, 722 F.2d 960 (2d Cir. 1983), aff'g 551 F. Supp. 1298 (E.D.N.Y. 1982), considered New York procedures which provided for three levels of review by medical personnel other than the treating doctor, and permitted patients to be represented by legal counsel or other interested persons during the review. Despite the fact that the regulations set forth no criteria to guide the reviewing parties, the court ruled that this system met the requirements of due process, reasoning that it provided not only the “opportunity for exercise of professional judgment,” id. at 981, required by Youngberg v. Romeo, but also “an opportunity for hearing and review of a decision to administer antipsychotic medication—but such a hearing need not be judicial in nature,” id. at 981 n.25, an additional protection believed necessary by the Second Circuit for the provision of due process. Notably, the New York Court of Appeals held that these same regulations did not provide adequate due process under its state constitution in Rivers v. Katz, 67 N.Y.2d 485, 495 N.E.2d 337, 504 N.Y.S.2d 74 (1986). See also U.S. v. Bryant, 670 F. Supp. 840 (D. Minn. 1987) (district court only required to ensure that professional judgment had been exercised); R. A.J. v. Miller, 590 F. Supp. 1319 (N.D. Tex. 1984)(upholding intra-institutional review and stating that no involuntarily committed patient should be allowed to refuse medication); Stensvad v. Reivitz, 601 F. Supp. 128 (W.D. Wis. 1985) (upholding Wisconsin's statutory scheme, which expressly denies most involuntarily committed patients any right to refuse medication). But see State ex rel. Jones v. Gerhardstein, 416 N.W.2d 883 (Wis. 1987) (citing Stensvad with disapproval, overturning on state grounds Wisconsin statute that had been upheld in Stensvad).

A similar deference to professional judgment has been adopted in several actions for damages under 42 U.S.C. § 1983 for alleged involuntary medication. See Dautremont v. Broadlawns Hosp., 827 F.2d 291 (8th Cir. 1987) (no damages where, in professionals’ “reasonable judgment,” drugs were best way to make patient's behavior acceptable to society); Johnson v. Silvers, 742 F.2d 823 (4th Cir. 1984) (no damages as long as professional judgment was, in fact, exercised); Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983), on remand sub nom. Lojuk v. Johnson, No. 79 C 3056 (N.D. Ill. 1984), aff'd, 770 F.2d 619 (7th Cir. 1985) (no damages unless decision to administer ECT departed from accepted medical practice); cf. Bee v. Greaves, 744 F.2d 1387, 1389 (10th Cir. 1984) (Pretrial detainees have a constitutionallybased liberty interest in avoiding involuntary psychotropic medication that can be overridden only in the event of emergency, a situation requiring “a professional judgment-call that includes a balancing of the jail's concerns for the safety of its occupants against a detainee's interest in freedom from unwanted antipsychotics.” Id. at 1396. Once this threshold has been reached, decision to medicate must be result of medical judgment which is to include evaluation of the nature and gravity of the safety threat, the characteristics of the individual involved, the likely effects of particular drugs, and the availability of alternative, less restrictive courses of action. Id.)

The Fourth Circuit in U.S. v. Charters, 829 F.2d 479 (4th Cir. 1987), held that a mentally ill pretrial detainee had a constitutionally protected interest in deciding whether to accept medication. The court held that his interest could not be overridden by the state's interest in having the detainee become competent to stand trial. The state's police power and its role as parens patriae were carefully circumscribed. The court promulgated elaborate guidelines for the determination of competency, a finding to be made by the district court. Finally, if the detainee were found incompetent, the court adopted “substituted judgment” and “best interest” standards to determine whether he could be forced to receive medication. The Fourth Circuit distinguished the case before them from Youngberg v. Romeo on four grounds:

1. 1)

   1) unlike profoundly retarded individuals, the mentally ill can be competent to participate in medical decisions;

2. 2)

   2) antipsychotic drugs present a risk of permanent side effects;

3. 3)

   3) use of these drugs may infringe upon a person's freedom of thought; and

4. 4)

   4) the detainee presented no clear risk of serious harm.

Unfortunately, the court refused to overturn Johnson v. Silvers, 742 F.2d 823 (4th Cir. 1984), which had upheld a professional judgment standard, and instead distinguished it on the grounds that the patient in that case had been committed under a statute which had as its “primary goal the protection and rehabilitation of the mentally ill” and the commitment essentially entailed a finding of medical incompetence. Charters, 829 F.2d at 490, n.15. This distinction, however, does not adequately explain why incompetent pretrial detainees are given greater deference than the incompetent civilly committed mentally ill.

134 457 U.S. 291 (1982). The lower court discussions leading up to Mills v. Rogers are discussed in note 127, supra. The decisions following remand are discussed in the text at notes 152-65, infra.

135 Guardianship of Roe, 383 Mass. 415, 421 N.E.2d 40 (1981).

136 457 U.S. at 303.

137 Id. at 300.

138 See id. at 306.

139 See Rogers v. Okin, 738 F.2d 1, 8 (1st Cir. 1984), discussed in text infra at note 160.

140 See Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983) (one of few cases to cite Mills v. Rogers; the court stated that state-derived liberty interests and governmental interests could increase amount of federal due process required in decision to administer ECT, but did not reach issue because parties had not presented court with relevant state statutes and regulations).

141 465 U.S. 89 (1984).

142 Pennhurst State School & Hosp. v. Halderman, 673 F.2d 647 (3rd Cir. 1982) (en banc), rev'd and remanded, 465 U.S. 89 (1984). The Third Circuit in its initial opinion, Pennhurst State School & Hosp. v. Halderman,612 F.2d 84 (3rd Cir. 1979),rev'd and remanded, 451 U.S. 1 (1981), on remand, 673 F.2d 647 (3rd Cir. 1982) (en banc), rev'd and remanded, 465 U.S 89 (1984), grounded its requirement of habilitation in the least restrictive environment solely on the bill of rights provision of the federal Developmentally Disabled Assistance and Bill of Rights Act. 42 U.S.C. § 6010 (1982). In its first consideration of this case in 1981, the Supreme Court ruled that this provision did not create any substantive rights and remanded the case for consideration of whether the relief could be granted under other provisions of federal law or under state law.

143 PA. STAT. ANN. tit. 50, §§ 4104-4704 (Purdon 1969 & Supp. 1982).

144 673 F.2d at 659-60.

145 “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” For an excellent discussion of the eleventh amendment powers, see Althouse, , How to Build a Separate Sphere: Federal Courts and State Power, 100 HARV. L. REV. 1485 (1987)CrossRefGoogle Scholar.

146 “The general rule is that a suit is against the sovereign if the ‘judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’ “ Dugan v. Rank, 372 U.S. 609, 620 (1963) (citations omitted), quoted in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101 (1984). This broad definition would appear to cover any relief sought against public institutions for the mentally ill.

147 See Ex parte Young, 209 U.S. 123 (1908) (Federal court could enjoin state attorney general, preventing enforcement of state statute that violated fourteenth amendment); Edelman v. Jordan, 415 U.S. 651 (1974) (plaintiff can obtain prospective relief against state officials who were violating federal law;.

148 465 U.S. 89, 106 (1984).

149 465 U.S. at 122-23.

150 Even if both state and federal law provide the same substantive rights, the scope of injunctive relief available under federal law may be significantly more narrow than that obtainable in state court under state law. The Third Circuit's holding, following the Supreme Court's first remand, that “if the judgment below [in Pennhurst] rested on federal law, it could be entered against petitioner state officials … even though the prospective financial burden was substantial and ongoing,” 465 U.S. at 104, was cast in doubt by the Supreme Court's noting, without deciding, that “the scope of any such relief would be constrained by principles of comity and federalism.” Id. at 104 n.13.

151 Mills v. Rogers, 457 U.S. 291 (1982).

152 Id. at 306.

153 Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983).

Upon remanding the Rogers case to the First Circuit, the Supreme Court had stated “we think it appropriate for the Court of Appeals to determine … whether it may call for the certification of potentially dispositive state law questions to the Supreme Judicial Court of Massachusetts ….” Mills v. Rogers, 457 U.S. at 306. The Court had in mind a Massachusetts rule which allows for a court dealing with an issue of Massachusetts law unresolved by precedent to certify that issue to the SJC for interpretation. See MASS. R. CT., SUPREME JUDICIAL COURT 1:03.

After briefing and oral arguments as to a proper course on remand, the First Circuit did certify nine questions of state law to the Massachusetts SJC, which the SJC answered in Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983). The First Circuit's response to these answers is found in Rogers v. Okin, 738 F.2d 1 (1st Cir. 1984), discussed in the text at note 160, infra.

154 Commissioner, 390 Mass. at 498, 458 N.E.2d at 314.

155 In its decision to require a judicial determination, the court weighed “(1) the intrusiveness of the proposed treatment, (2) the possibility of adverse side effects, (3) the absence of an emergency, (4) the nature and extent of prior judicial involvement, and (5) the likelihood of conflicting interests,” id. at 501-02, 458 N.E.2d at 316 (citation omitted), and the “extraordinary” nature of antipsychotic medication. The court expressly rejected the argument that physicians could best make this type of decision. The court reasoned that the substituted judgment by its nature is not a purely medical choice, although medical information is surely involved, but rather is based upon a wide variety of social values. The court also stated that physicians in institutions are particularly poorly suited to make substituted judgments due to the impact of institutional pressures on their position as independent decisionmakers. Id. at 503 & n.19, 458 N.E.2d at 317-18 & n.19.

156 Id. at 505, 458 N.E. 2d at 318 (quoting Guardianship of Roe, 383 Mass. 415, 444, 421 N.E.2d 40, 57 (1981)).

157 These criteria make clear that a patient is not restricted to choices that would have been made by a “reasonable” person. The competence standard subsumed within substituted judgment suggests perhaps that delusionally-based refusals might not be honored, but clearly preserves the right to make idiosyncratic decisions.

158 Commissioner, 390 Mass. at 510-11, 458 N.E.2d at 321-22.

159 Id. at 511, 458 N.E.2d at 322 (citation omitted).

160 738 F.2d 1 (1st Cir. 1984). The court held that abstention was not appropriate both because the state's interests had been adequately vindicated by the certification process and because abstention would only result in further delay, an argument called into question by the Supreme Court's second Pennhurst decision.

161 Id. at 8. In determining what process was due, the First Circuit noted that state procedures could exceed the requirements of due process and that, in such a case, “a state could fail to follow its own procedures yet still provide sufficient process to survive constitutional scrutiny.” Id. (citing, e.g., Hewitt v. Helms, 459 U.S. 460, 496 (1983) (Stevens, J., dissenting)). As an example, the court apparently assumed that the substantive requirements of a determination of incompetency and of substituted judgment would be protected under federal law and then suggested without deciding that “the Constitution may well not require a judge, rather than a doctor, to make [these decisions].” Id. (citing Youngberg v. Romeo and Parham v. J.R., 442 U.S. 584 (1979)).

162 Rogers, 738 F.2d at 9. This federal protection, of course, would have far exceeded that required by Youngberg v. Romeo alone, but the court did not note this fact in its decision not to issue an injunction.

163 Id. Ironically, the First Circuit, earlier in its opinion, rejected the argument that the presence of independent state law grounds rendered the case moot, saying that a controversy remained and that meaningful relief was still available in federal court because the Massachusetts court's decision, although setting forth broader rights, was not self-executing. This declaration was most likely not the protection the plaintiffs had in mind. Even though the plaintiffs received no substantive relief, the state of Massachusetts was ordered to pay the plaintiffs’ lawyers $1.4 million in legal fees. DISABILITY ADVOCATES BULLETIN, July 7, 1986, at 176.

164 See supra note 127.

165 Thus, the First Circuit's analysis of the impact of Pennhurst suggests that the Third Circuit, in its final decision in Rennie v. Klein, erred in ordering the defendants to comply with the New Jersey regulations regarding involuntary medication once the court had determined that the regulations provided more protection than that required under the due process clause. By contrast, the decisions in Project Release v. Provost, 551 F. Supp. 1298 (E.D.N.Y. 1982), aff'd, 722 F.2d 960 (2d Cir. 1983) and in R.A.J, v. Miller, 590 F. Supp. 1319 (N.D. Tex. 1984), presumably do not violate Pennhurst as the courts in these cases merely ruled that the state regulations met or exceeded the requirements of federal due process and did not demand compliance with their terms.

166 Many commentators have urged that states must address individual rights. See, e.g., Berdon, , Protecting Individual Liberties Under the State Constitution, 36 CONN. B.J. 236 (1982)Google Scholar; Comment, A Common Law Remedy for Forcible Medication of the Institutionalized Mentally Ill, 82 COLUM. L. REV. 1720 (1982)CrossRefGoogle Scholar [hereinafter cited as Common Law Remedy].

167 Mills v. Rogers, 457 U.S. 291 (1982); discussed in text at notes 134-40, supra.

168 See, e.g., Abrahamson, , Reincarnation of State Courts, 36 Sw. L.J. 951 (1982)Google Scholar; Brennan, , State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1977)CrossRefGoogle Scholar; Linde, , E. Pluribus—Constitutional Theory and State Courts, 18 GA. L. REV. 165 (1984)Google Scholar; Williams, , In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C.L. REV. 353 (1984)Google Scholar; Developments in the Law—The Interpretation of State Constitutional Rights, 95 HARV. L. REV. 1324 (1982)CrossRefGoogle Scholar. For a bibliography of commentary and cases, see Collins, Special Section, NAT'L L.J., May 12, 1984, at 25-32.

169 See Michigan v. Long, 463 U.S. 1032, 1038-43 (1983).

170 Meisel, , The Rights of the Mentally Ill Under State Constitutions, 45 LAW & COMTEMP. PROBS. 7, 33 (1982)Google Scholar (citing MONT. CONST, art. XII, 3(2), which provides protection for institutionalized persons).

171 67 N.Y.2d 485, 495 N.E.2d 337, 504 N.Y.S.2d 74 (1986).

172 This action was upheld by the Appellate Division, 112 A.D.2d 926, 491 N.Y.S.2d 1011 (1985).

173 Rivers v. Katz, 67 N.Y.2d 485, 492, 495 N.E.2d 337, 341, 504 N.Y.S.2d 74, 78 (1986).

174 Id. at 495 n.6., 495 N.E.2d at 343 n.6., 504 N.Y.S.2d at 80 n.6.

175 U at 496-97, 495 N.E.2d at 342-43, 504 N.Y.S.2d at 80-81.

176 Id. at 497-98, 495 N.E.2d at 344, 504 N.Y.S.2d at 81. In so doing, the court struck down the regulatory system of review set forth in N.Y. COMP. CODES R. & REGS. tit. 14, § 27.1 (Sept. 10, 1975) and upheld against challenges based on the federal constitution in Project Release v. Prevost, 722 F.2d 960 (2d Cir. 1983). These regulations provided that treatment could be given over objection only in case of emergency, where it “appears necessary to avoid serious harm to life or limb of the patients themselves, or others.” N.Y. COMP. CODES R. & REGS. tit. 14, § 27.8(b)(1) (Sept. 10, 1975, as amended March 27, 1986), or barring emergency, to the involuntarily committed following review. Only a court order could override involuntarily committed patients’ objections based on religious grounds. Id. at § 27.8(b)(3)(ii). By contrast, if such patients objected to psychotropic medication for nonreligious reasons, their rights of appeal were limited first to the head of the service, then to the facility director, and finally, provided they were in a facility of the Department of Mental Hygiene, to the regional director. Id. at §§ 27.8(c) & (e)(1) & (3). Notably, the regulations presented no criteria to guide the considerations of the reviewing parties. Moreover, the contrast between these regulations and the provisions governing the use of such interventions as ECT, see supra note 7, suggested that the regulations did not require that informed consent be obtained prior to the administration of psychotropic drugs or that a patient need be incompetent before his or her objection to these drugs could be overridden.

177 See text at notes 128-65, supra.

178 123 N.H. 554, 465 A.2d 484 (1983). The proposed statute under consideration in that case would authorize the administration of certain types of medical and psychiatric treatment during the initial 10 day period following the certification for involuntary emergency hospitalization and only after a finding of probable cause for emergency hospitalization by the district court when a physician reasonably believes that such treatment will tend to promote the physical and mental health of a patient, and when the patient, because of physical or mental illness, would be unable to make an informed decision with respect to the medical or psychiatric treatment offered and a reasonable person would consent to the administration of such treatment. Id. at 556-57, 465 A.2d at 486 (citing Senate Resolution No. 14, regarding House Bill 821).

179 Id. at 561, 465 A.2d at 489.

180 Id. at 562, 465 A.2d at 489.

181 Id. at 563, 465 A.2d at 490.

182 In Large v. Superior Court, the Arizona Supreme Court held that:

148 Ariz. 229, 239, 714 P.2d 399, 409 (1986).

The court said that under its constitution, it was required to ensure that professional judgment, as required in Youngberg v. Romeo, was in fact exercised. The majority, however, did not recognize prisoners’ rights to refuse unwanted medication as long as it was given for purposes of therapy, a position with which the dissent vigorously disagreed. In State ex rel. Jones v. Gerhardstein, 416 N.W.2d 883 (Wis. 1987), the Wisconsin Supreme Court struck down a statute that denied involuntarily committed patients any right to refuse treatment. It reasoned that this restriction, when compared to those applied to voluntarily committed patients and to precommitment detainees, had no rational basis and therefore violated the federal and Wisconsin constitutions’ equal protection clauses. The court then held that an involuntarily committed patient can be treated over his or her objection only if a court finds probable cause that the patient is incompetent or if treatment is necessary to prevent serious harm to the patient or to others.

183 See text at notes 153-59, supra.

184 Goedecke v. State, Dep't of Institutions, 198 Colo. 407, 603 P.2d 123 (1979) (en banc) (citing common law as well and ruling that state and federal constitutional due process guarantees required provision of transcript at state expense).

185 People v. Medina, 705 P.2d 961 (Colo. 1985).

186 Anderson v. State, 135 Ariz. 578,663 P.2d 570 (Ct. App. 1983). Relying solely upon the statute after concluding that its protection surpassed federal constitutional standards, the appellate court vacated the trial court's order that the hospital “administer any conventional psychotropic medication to the patient with or without patient's consent that the medical director … deems appropriate in the treatment of this patient.” Id. at 580, 663 P.2d at 572 (citation omitted). The court ruled that, under a different statute, voluntary patients had broader rights to refuse, subject only to the requirements of “sanitary or preventive measures and quarantine laws.” Id. at 583, 663 P.2d at 575. The Arizona Supreme Court subsequently invoked the state's constitutional due process clause to hold that even prisoners were entitled to a treatment plan that complied with statutory and regulatory requirements in Large v. Superior Court, 148 Ariz. 229, 714 P.2d 399 (1986).

187 Anderson, 135 Ariz, at 581 & n. l, 663 P.2d at 573 & n.l (noting that although petition for treatment must include allegation of unwillingness to accept treatment, there need be no such finding, and even if such a finding were made, it “is not the equivalent of a finding that the patient is incompetent to participate in treatment decisions, once a treatment program is started” (emphasis added); see also In re K.K.B., 609 P.2d 747, 749 (Okla. 1980) (Oklahoma law; involuntary commitment does not entail finding of incompetence); cf. In re Moll, 347 N.W.2d 67, 71 (Minn. Ct. App. 1984) (vacating lower court's order for involuntary medication entered at time of commitment because it precluded statutorily mandated review of treatment refusals by the state hospital's treatment review board).

188 135 Ariz, at 581, 663 P.2d at 573 (citing First Circuit's first opinion in Rogers v. Okin and statutory reference to emergency in terms of threat to safety of self or others).

189 See supra notes 39-40. The statutes of some states, however, provide that involuntarily committed mental patients have no right to refuse unwanted medication. See supra note 41. Notably, the existence of a state statute providing judicial review does not always mean that patients’ rights will be better protected. In In re Mental Commitment of M.P., 500 N.E.2d 216 (Ind. Ct. App. 1986), the court simply stated that the patient was not rational and then deferred to the doctor's judgment that medication would be better for the patient. The court cited only federal substantive standards and did not apply even those.

190 Common Law Remedy, supra note 166; see Note, Involuntary Treatment and the Rights to Refuse Treatment with Anti-Psychotic Drugs, 16 CREIGHTON L. REV. 719, 729-31 (1983)Google Scholar.

191 Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489,497-98,458 N.E.2d 308, 314 (1983) (right to control one's body); In re Boyd, 403 A.2d 744, 750 (D.C. Ct. App. 1979) (same); Goedecke v. State, Dep't of Institutions, 198 Colo. 407, 410, 603 P.2d 123, 125 (1979) (en banc) (same); In re K.K.B., 609 P.2d 747, 751 (Okla. 1980) (“no support in common law for the proposition that treatment, medical or psychiatric, constitutes a legally nonreversible medical decision“).

192 609 P.2d at 751 (citation omitted).

193 Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 500-07, 458 N.E.2d 308, 315-19 (1983) (ruling specifically that judge may not make substituted judgment decision for competent patient); cf. In re Boyd, 403 A.2d 744, 750-51 (D.C. Ct. App. 1979) (requirement based largely on protection of patient's religious freedoms); In re K.K.B., 609 P.2d 747, 752 n.16 (Okla. 1980) (citing Boyd for “possible application of the ‘substituted judgment doctrine'“).

194 Compare In re Quinlan, 70 N.J. 10,’ 41-42, 355 A.2d 647, 664, cert, denied, 429 U.S. 922 (1976) (substituted judgment regarding termination of life support) and In re Storar, 52 N.Y.2d 363, 379, 420 N.E.2d 64, 72, 438 N.Y.S.2d 266, 274 (1981) (honoring patient's prior expressed “instructions to terminate life sustaining procedures when there is no hope of recovery“) with Rennie v. Klein, 720 F.2d 266﹛3rd Cir. 1983) (New Jersey law; no suggestion that state law might require substituted judgment for incompetent mentally ill patients’ refusal of medication) and Project Release v. Prevost, 722 F.2d 960 (2d Cir. 1983) (New York law; same).

195 Contra Common Law Remedy, supra note 166, at 1475-76 (competent involuntarily committed patients).

Most of the state law claims for damages for involuntary medication have been brought for battery, not for lack of informed consent. See Lojuk v. Quandt, 706 F.2d 1456, 1460 (7th Cir. 1983), on remand sub nom. Lojuk v. Johnson, No. 79 C 3056, slip op. (N.D. Ill. March 7, 1984), aff'd, 770 F.2d 619 (7th Cir. 1985) (under Illinois law, total lack of consent to ECT gives rise to action in battery rather than in informed consent); Price v. Sheppard, 307 Minn. 250, 239 N.W.2d 905 (1976) (ECT; summary judgment for defendants in trial court as to battery claim on grounds of official immunity was not raised on appeal); cf. Davis v. Hubbard, 506 F. Supp. 915, 931-32 (N.D. Ohio 1980) (implying that action for medicating over patient's objection would lie in battery).

196 See, e.g., Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976), in which the Supreme Judicial Court of Massachusetts held that a cause of action existed where intentional infliction of severe emotional distress had resulted in mental anguish and loss of consortium, but not in physical injury.

197 See text at note 52, supra.

198 Rennie v. Klein, 720 F.2d 266, 271 (3rd Cir. 1983) (Adams, J., concurring).

199 Id.

In any event, damages for torts are often limited or unavailable against state employees, such as physicians working for state hospitals, for actions done in their official capacity or in the course of their employment. See Wis. STAT. ANN. § 893.80(3) (West 1983) (damages for torts limited to $50,000; no punitive damages available); Price v. Sheppard, 307 Minn. 250, 239 N.W.2d 905 (1976) (summary judgment for defendants in trial court as to battery claim on grounds of official immunity was not challenged on appeal).

200 Quality of Care, supra note 45, at 201.

201 Id. (emphasis in the original) Professor Stone persuasively argues that the Supreme Court has gone well out of its way to avoid holding that the Constitution requires the states to provide more funds to care for the mentally ill. See supra note 59, at 134. Thus, it will be necessary to turn to the state courts and the political process to provide the necessary funding.