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The Right to Refuse Mental Health Treatment
Am J Psychiatry 1999;156:1653-1654.
View Author and Article Information
Chicago, Ill.

by Bruce J. Winick, J.D. Washington, D.C., American Psychological Association, 1997, 402 pp., $59.95.

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As I was reading this book, I was caring for an elderly woman with a long history of schizoaffective disorder. She had been transferred to my inpatient unit from a nursing home, where she had thrown a food tray at a fellow resident and had injured one of the four staff members required to subdue her. As I tried to puzzle out whether she was more likely undermedicated or overmedicated, she refused to eat or undergo diagnostic procedures, directed an unending stream of filthy invective at the staff, and terrorized the other patients with incessant screaming. She stripped the curtains from around her bed and barricaded the door of her room with the furniture. She was clearly in terrible psychic pain. She refused treatment.

The power to take away a person’s freedom or a person’s right to refuse treatment is an awesome thing. It entails a profound responsibility: to exercise that power with compassion, respect, knowledge, and care. Our society makes psychiatrists responsible for the care and protection of those whose mental illnesses place them or others in danger. Forced treatment should be a last resort, not a cheap substitute for adequate staffing, patience, and a humane treatment environment. We must always be aware of, and respect, our patients’ rights. This book promises to deal with one aspect of those rights: the right to refuse treatment. What it delivers is an exhaustive and often repetitive search for Constitutional, legislative, and judicial bases for that right. To argue compellingly for the right to refuse treatment, however, requires a genuine understanding of the reasons psychiatrists are empowered—required, in fact—to force treatment on patients.

The very structure of this book betrays the author’s failure to grasp the nature of the grievous problems for which mental treatments are sometimes required. The book begins with chapters on each of the major treatment modalities for mental illnesses. It has no chapters, not so much as a paragraph, on the illnesses themselves, their neuropathology and neurophysiology, or the mechanisms by which medications address the pathology. There are no figures on the incidence of mental illnesses for which forced treatments are used or on the frequency or circumstances of their use. The reader could easily get the impression that antidepressants are forced on patients as often as antipsychotics.

After the descriptions of mental health treatment modalities, the book goes on to a systematic consideration of the legal arguments for refusing them: freedom of speech and thought, due process, privacy, bodily integrity, autonomy, and freedom of religion. The government’s interest in safety and life is weighed against these rights. Finally, the author discusses the therapeutic benefits of the right to refuse treatment, the need for informed consent, the right to a hearing, and the overly optimistic view that advance directives may resolve many forced-treatment issues in the future. If one does not begin with an understanding of the havoc mental illnesses can wreak on cognition, emotion, personality, functionality, hope—on the faculties a person needs to make an informed decision about treatment—then forced treatment can easily be construed as an arbitrary intrusion.

This fundamental omission leads to a fundamental flaw in the author’s arguments. When discussing First Amendment rights guaranteed by the U.S. Constitution, he quotes Constitutional scholars as saying that the framers "believed above all else in the power of reason." He interprets freedom of speech as including "constitutional protection for mental processes" (p. 146) and states, "Development of the mind and the process of conscious thought—including the ability to think in abstract terms, and to have and communicate emotions and thoughts—is essential to the identification and achievement of self-fulfillment goals," again, goals that were crucial to the framers of the Constitution. The failure to recognize that the mental illnesses for which involuntary treatments are most commonly used are not only characterized but defined by the loss of the capacity for abstraction, communication, and emotional experience turns the author’s argument on its head. We are required to treat some individuals so that these faculties can be restored to them.

This book is a publication of the American Psychological Association. Perhaps that fact is related to the author’s propensity to tell the reader, time and time again, that psychotherapy and behavioral treatments are minimally intrusive and pose little danger, while the use of psychotropic medication is fraught with great risk. It is psychiatrists on whom the responsibility for most patients requiring coercive treatment falls. In the discussion of "least restrictive alternatives," physical restraint is conceptualized as less intrusive than forced medication. The author seems to be writing in a time warp as he describes extended hospitalizations in large public hospitals staffed by unlicensed practitioners and hidden from all public scrutiny and repeatedly cites publications from the 1970s to support his contentions about medication side effects.

In this book, ECT is still administered bilaterally (thankfully, anesthesia has been introduced) and is "not curative" of depression. The atypical antipsychotics, selective serotonin reuptake inhibitors, and other new medications seem not to have been invented. "Drug-free holidays" are still a means of improving treatment efficacy rather than an approach that increases the likelihood of relapse, recurrence, and sometimes irreversible losses of function. Psychiatric diagnoses are arbitrary and ambiguous. The author does not recognize the danger that underfunded government agencies can use the right to refuse treatment as an excuse not to provide it. On the other hand, psychiatric hospitals, in contrast to prisons, another major area of concern, are presumed to have such an ample supply of well-trained staff that forced medication is not necessary to protect staff and patients from violence. In contrast to mental illness, mental retardation is "congenital, untreatable, and unchangeable" (p. 256).

I have always known that is important to treat patients with respect and fairness, to try to understand their perspectives, and to convey a genuine sense of caring. I learned from patient advocates in a state mental health system how important it is for patients to make autonomous, informed choices about their treatment. I also learned that there is a cadre of so-called patient advocates whose job it is to adduce legal arguments to support the rights of severely ill individuals to refuse the care that would reduce their suffering and impairment. These latter, and those of us who want or need to know those arguments, may profit from reading this book.




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