The Right to Refuse Treatment

December 1, 2006

Among the numerous challenges facing psychiatric care providers today, few experiences are as ubiquitous as treatment refusal. Tragically, it is often the case that the very patients who are most inclined to refuse treatment are the ones who are in most need of it.

Among the numerous challenges facing psychiatric care providers today, few experiences are as ubiquitous as treatment refusal. Tragically, it is often the case that the very patients who are most inclined to refuse treatment are the ones who are in most need of it. Further complicating this matter, the dilemma pits 2 of the highest ethical principles in direct confrontation: respect for patient autonomy and beneficence. Being caught in a Scylla and Charybdis situation often forces clinicians to navigate a treacherous path between the need to protect the patient and those around him or her while steering clear of any failure to respect the person. Mishaps behind the wheel of this vessel can result in poor outcomes-medically and legally-with potentially high costs for patients, society, and mental health providers. As such, it is essential that all clinicians understand the right to refuse treatment, along with its ethical and legal implications.

Historically, the ability to force treatment on unwilling patients derived from a need-for-treatment justification. This approach started to change in the 1960s when there was a gradual move toward the "dangerous patient" justification-unwanted treatment could be imposed only if or when the patient presented a significant risk of harming himself or others. Under this new system, patient advocates began to press for the patient's right to determine what was done to his own body, creating instances in which the committed patient could decline treatment with medication. As these matters began to make legal appearances around the country, virtually every involved court recognized some substantial patient interest in a right to refuse treatment.1

Several cases are considered landmarks in the evolution and gradual codification of this patient right and are described below.

Superintendent of Belchertown State School v Saikewicz
Although it did not directly address treatment refusal by the mentally ill, the 1977 Massachusetts case of Superintendent of Belchertown State School v Saikewicz2 is essential for its recognition of the right of both competent and incompetent patients to refuse treatment and the elaboration of the "substituted judgment" doctrine. Joseph Saikewicz was a 67-year-old with profound mental retardation and acute myeloblastic leukemia. His guardian ad litem sought to protect him from the pain and discomfort inherent in a treatment that could only delay his inevitable demise.

The Supreme Judicial Court of Massachusetts recognized that there "exists a general right in all persons, competent and incompetent, to refuse medical treatment in appropriate circumstances."2 Having recognized this right in incompetent patients, the court went on to elaborate a process whereby decisions are made in accordance with what the incompetent person would want if he were competent. The court ultimately concluded that Mr Saikewicz, if competent, would have refused treatment and could still do so despite his incompetence. This case laid down some crucial stepping-stones for future decisions delineating mentally ill patients' rights to refuse treatment.

Guardianship of Roe
In the 1981 case of Guardianship of Roe,3 the Supreme Judicial Court of Massachusetts directly addressed the patients' right to refuse treatment in mental illness and it squarely placed the task of determining substituted judgment with the courts. In this matter, Richard Roe III's guardian (his father) consented to the administration of antipsychotic medications over the patient's objection, and in the absence of either institutionalization or an emergency. The court opined, "It cannot be assumed that a mentally ill ward lacks the capacity to make decisions whether to undergo treatment involving antipsychotic medication [and even if he does lack this capacity] his stated preference is entitled to serious consideration."3 Echoing Saikewicz,2 the court called for a determination of substituted judgment, and it placed this responsibility with the courts and mandated a consideration of the patient's stated preferences, religious beliefs, impact on his family, probability of adverse side effects, likely results of refusing treatment, and prognosis with treatment.

Rennie v Klein
The 1983 case of Rennie v Klein4 addressed the issue of an involuntarily committed patient's right to refuse treatment with antipsychotic medication. John Rennie, on his 12th involuntary hospitalization, initiated a class-action suit claiming a right to refuse antipsychotic medication. The US Court of Appeals for the Third Circuit categorically recognized that "involuntarily committed mentally ill patients have a constitutional right to refuse administration of antipsychotic drugs."4 The court examined the requirements of due process necessary to abridge this right. The standard applied to override Rennie's refusal was a determination of dangerousness to himself or others, made by medical providers exercising "professional judgment." The court elaborated that "such a judgment and the resulting decision to administer medication will be presumed valid unless it is shown to be a 'substantial departure from accepted professional judgment, practice, or standards.'"4

Rogers v Commissioner
In the 1983 case of Rogers v Commissioner,5 the Supreme Judicial Court of Massachusetts addressed several questions pertaining to committed mental patients' rights to refuse treatment and the procedures necessary to treat them despite their objection. Their findings began with the determination that involuntary commitment does not equal incompetence to make treatment decisions. Only the courts can determine incompetence, and such a finding mandates an investigation of substituted judgment-by the courts-before any forcible administration of medication. The court clearly articulated, "no state interest is sufficiently compelling in a non-emergency situation to overcome a patient's decision to refuse treatment with antipsychotic drugs."5 However, the state's police power does permit forced medication as a form of chemical restraint in the setting of an emergency, and forcible administration of medications is permissible when needed "to prevent the immediate, substantial, and irreversible deterioration of a serious mental illness."5 Continued treatment requires a judicial determination of incompetence in conjunction with a substituted judgment treatment plan.

US Supreme Court cases
The US Supreme Court finally weighed in on the issue with its 1990 decision in Washington v Harper,6 and again in 2003 with Sell v United States.7 Unfortunately, since the former case involved a convicted state prisoner and the latter involved a criminal defendant, these decisions fail to reveal how the court might rule on these matters in the civil arena.

In Washington v Harper,6 the Supreme Court concluded that the state may forcibly treat a prison inmate with a serious mental illness, provided that he or she is dangerous and that the treatment is in his medical interest. The Supreme Court rejected the contention that a judicial finding of incompetence and a determination of substituted judgment should be required before forced medication, because this would subvert the state's legitimate interest in "treating him where medically appropriate for the purpose of reducing the dangerousness he poses."6 The Supreme Court went on to find that the determination to force medication on patients is "perhaps better served" by medical professionals (provided a reasonable appeals process is in place), and that the requirement of judicial hearings would critically consume prison resources. Again, it is difficult to speculate how the Court would rule minus the penologic interests present in this case.

In Sell v United States,7 the Supreme Court upheld the use of involuntary medication in the setting of dangerousness and found that due process permits the use of forced medication to restore competence to stand trial, provided that crucial inquiries into medical appropriateness, side effects, fairness of the trial, and less intrusive alternatives are made by the ruling court.

Petersen v State of Washington
Clinicians need to be aware that despite a solid common-law and statutory foundation backing a patient's right to refuse treatment, there remains a legal (and clinical) expectation that involuntary treatment should be aggressively sought when appropriate, and liability can result from the failure to do so. The 1983 case of Petersen v State of Washington8 illustrates the potential legal perils when the mental health provider fails to exhaust his or her options for seeking involuntary treatment. In this case, the patient, Mr Knox, drove through a red light and crashed into the plaintiff, Mrs Peterson, 5 days after being released from the hospital. She alleged that the hospital was negligent in its treatment of Knox because it failed to seek additional confinement, thereby not protecting her from the patient's dangerous propensities.

The Supreme Court of Washington ruled that psychiatrists at the state hospital, "having diagnosed as schizophrenic an individual whose vehicle subsequently struck and injured plaintiff, incurred a duty to take reasonable precautions, such as petitioning the court for a 90-day commitment, to protect persons such as plaintiff who might foreseeably be endangered."8

It seems very likely that, under the right circumstances, this line of reasoning could be extended to create a duty to seek involuntary medications. Given the inherent uncertainties surrounding the treatment of mental illness, it becomes impossible to consistently and accurately predict who will become dangerous. In addition, practical constraints on resources and clinical considerations (such as maintaining a patient alliance) clearly make it impossible to aggressively pursue treatment to the full legal limits in all cases. As always, awareness of local law, careful documentation, and articulating the reasons behind any chosen course of action and the alternatives considered remains the only prudent path when negotiating these perilous waters.

The bottom line
Where does all this leave the current right to refuse treatment? Clearly, there is no substitute for a rigorous awareness of local, applicable law on the subject. However, some general trends are clearly identifiable. For example, absent an emergency involving a dangerous or critical deterioration in the patient's status, medications should not be administered over the patient's objection. However, when faced with an emergency, a psychiatric provider can safely administer involuntary medications as long as he exercises professional judgment generally consistent with current practices and standards. Being an inpatient or a patient in the community with involuntary commitment to treatment does not mean one is incompetent to make treatment decisions.

While situations involving treatment refusal are frustrating and challenging, several promising options remain available to treatment providers. Most authors agree that treatment refusal should first be viewed as a clinical matter and an opportunity to revisit potential issues such as transference, conflicts with staff, power struggles, secondary gain surrounding the sick role, and denial of mental illness. Legal remedies should only be exercised as a last resort.

In most jurisdictions, the clinician seeking to administer involuntary medication to a patient must seek a judicial determination of patient incompetency, and this will often be accompanied by a substituted judgment determination by the court. In some localities, a finding of incompetency can and will be accompanied by the appointment of a guardian who can then serve as a substitute decision maker. Some states will recognize living wills, durable power of attorney, or health care proxies as viable avenues to involuntary treatment of the incompetent patient.

Although less common, there are jurisdictions that favor a treatment-oriented approach (as opposed to a rights-oriented one) and enable involuntary treatment to proceed without judicial intervention. In these situations, proxies such as next of kin, treatment review panels, or institutional administrators/committees hopefully gauge the need for and appropriateness of the proposed treatment while serving the patient's best interests.9 To end on a bright note, Appelbaum reminds us that "patients' right to refuse treatment has been not nearly so hard for clinicians to live with as they had feared" and that all avenues to override refusal yield a success rate of 70% to 100%.1

Dr Wortzel is an instructor-fellow with the Veterans Integrated Service Network 19 Mental Illness Research, Education and Clinical Center, Denver Veterans Medical Center and the department of psychiatry, University of Colorado Health Sciences Center in Denver.

References:

References1. Appelbaum PS. The right to refuse treatment with antipsychotic medications: retrospect and prospect. Am J Psychiatry. 1988;145:413-419.
2. Superintendent of Belchertown State School v Saikewicz, 373 Mass. 728, 370 NE2d 417 (1977).
3. In re Guardianship of Roe, 383 Mass. 415, 421 NE2d 40 (1981).
4. Rennie v Klein, 720 F2d 266 (3rd Cir 1983).
5. Rogers v Commissioner, 390 Mass. 489, 458 NE2d 308 (1983).
6. Washington v Harper, 494 US 210 (1990).
7. Sell v United States, 539 US 166 (2003).
8. Petersen v State of Washington, 100 Wash. 2d 1016, 671 P 2d 230 (1983).
9. Simon RI. Psychiatry and Law for Clinicians. 3rd ed. Washington, DC: American Psychiatric Publishing; 2001:77-81.