Making mental health care decisions: Informed consent and involuntary civil commitment

This paper explores the development of the informed consent doctrine as it relates to psychiatric practice. The contribution of the issues of civil commitment and the right to refuse treatment to current developments in the informed consent doctrine is also addressed. Special informed consent issues are related to specific categories of psychiatric treatments. Basic in formed consent requirements in psychiatry are seen as still in the formative stages but the constitutional law and common-law foundations for further developments are outlined. The complicated clinical, ethical, and legal issues involved in modern psychiatric treatment are stimulating new interest and concern about the informed consent doctrine throughout medical practice.     

Zwangsbehandlung – eine Zwischenbilanz

Each medical treatment encroaches on patient rights; therefore, every patient has the right to freely decide whether to be treated or not and has the freedom to refuse treatment even if it is unreasonable from a medical perspective. The law acknowledges this freedom even if the patient is incapable of responsible self-determination as a result of (mental) illness. Treatment contrary to the patient’s declared intentions (“Zwangsbehandlung”—compulsory treatment) is allowed only under specific, strict circumstances. These requirements must be legally established in a clear and precise manner. On the basis of a number of cases concerning compulsory treatment with drugs of patients in a forensic psychiatric hospital, the Federal Constitutional Court therefore established specific guidelines. The Federal legislators and some state legislators have generally implemented these guidelines, even with reference to partly different settings, but considering the fact that these guidelines were related to a special treatment situation they also found differing solutions to some extent. Nevertheless, there are significant regulatory gaps remaining which in particular relate to the treatment of somatic diseases of psychiatric patients.     

L’affaire Lambert et ses enjeux constitutionnels

Despite a great number of legal analyses concerning the Vincent Lambert Case, only few of them adopt a constitutional point of view. This lack questions the relevance of Constitutional Law to protect rights and liberties. That is particularly true concerning the matter of the end of life. The right to life and the patient's right to consent (and refuse) to a medical treatment are not specifically enshrined by French constitution, (set aside the simple right to live freely). Therefore, this legal vagueness may lead to various interpretations of the fundamental law, which could promote rights and liberties as a tool protecting one's life, as well as it may recognize a real right to die.     

Legal implications for failure to comply with advance directives: an examination of the incompetent individual's right to refuse life-sustaining medical treatment

Life-sustaining medical technology in the past century has created a growing body of case law and legislation recognizing the incompetent individual's right to make his or her own end-of-life decisions. This article focuses on California's leadership in the area of these specific end-of-life issues: specifically, exploring the right of an incompetent individual to refuse life-sustaining medical treatment. The article examines advance directives along with various judicial decision-making standards for incompetent individuals and explores the sociobehavioral and legal rationale for compliance with incompetent individual's rights to make end-of-life decisions. Finally this article concludes (i) that advance directives allow competent individuals to state the medical treatment they would prefer in the event they should later become incompetent and (ii) that when advance directives are properly executed in a detailed manner, under laws currently in effect in some jurisdictions, the preferences stated in the directive bind health care providers.     

The right to refuse treatment in Oregon: A two-year statewide experience

The right to refuse treatment seems well established for psychiatric patients. Individual states, however, have very different procedures for managing this right and for overriding the refusal. Oregon's administrative procedure for override depends on an evaluation by an independent examining psychiatrist. This article empirically examines the 432 refusals leading to override requests in three Oregon psychiatric institutions in 1983 and 1984. Treatment refusal was found to be a common occurrence in all age groups. Those who refused treatment were seriously ill, unemployed, single individuals with previous psychiatric hospitalizations. Most refused treatment because of denial of their illness or delusional thinking about medication. Most refusals were overridden following the independent psychiatrist's examination. Because of the significant cost of the override procedure to the patient and the mental health system, the authors propose a new procedure which combines parts of the current procedure with a requirement that, at the time of the civil commitment hearing, the judge makes a separate decision as to the patient's competency to make treatment decisions.     

医师不得拒绝诊疗的法律与伦理问题研究

医患纠纷频繁发生和医患关系不和谐已成为社会热点问题。首先对我国现行医师不得拒绝诊疗的相关法律规定进行概述,并分析了明确医师不得拒绝诊疗义务的法律与伦理上的原因,指出了医师不得拒绝诊疗相关法律规定的不足之处,最后对完善相关法律规定及现实操作进行思考。以达到改善医患关系,减少医疗纠纷的目的。     

Treatment rights of the mentally retarded: The cost of refusal

The cost of the mentally retarded client's rights to refuse treatment, in both monetary and human terms, varies under different legal/clinical circumstances. The process of placing severely retarded clients into the community with poor or no supervision, especially those who refuse or are denied treatment, can result in devastating costs for the client and others. The complexities associated with mental retardation require sophisticated treatment considerations. Moreover, these clients often need guidance in making meaningful decisions relevant to their quality of life. In order for this process to produce desirable results, for both the mentally retarded client and society, in general, a balance must be struck between the legal and clinical factors involved.     

Die Beurteilung der Steuerungsfähigkeit bei psychischen Störungen

Psychiatric assessment of culpability is conducted in two steps: firstly, the psychiatric diagnosis is to be made and attributed to one of the legal terms that entail the requirements for diminished or lack of legal responsibility. Secondly, one has to assess from a psychiatric perspective whether the mentally disturbed suspect who was aware of the unlawfulness of the actions was also able to act in accordance with awareness and to refrain from unlawful actions. The latter is called the capacity for self-control. The ultimately legal normative term of capacity for self-control corresponds to psychobiological concepts of executive and motivational self-control as well as to the psychological models of intentional control of actions (Goschke) and ”disactualization” (Janzarik). These concepts and models are outlined and discussed, particularly with regards to paraphilia and behavioral disorders. In the context of these conditions we sometimes find free-floating considerations about the capacity for self-control without even addressing the question whether the severity of the disorder has crossed the threshold for diminished legal responsibility. The author argues the case for an overall view of the suspect’s personality and abilities, weaknesses and decisions as displayed in the history of the criminal act.     

What Right to Die?

This letter first discusses two meanings of a "right to die." In the popular sense, the term refers to a right to refuse life-sustaining treatment. In the strict sense, the term signifies an affirmative right to obtain death--a right to suicide. The letter then explores the legal implications of a suicide right. This right would extend to competent adults, mature minors, and probably also incompetent persons. Counselors would have to inform clients of the suicide option. Intervention to prevent suicide could trigger civil liability. Suicidal intentions would not justify involuntary commitment. Consent would become a defense to homicide.     

Outpatient civil commitment of the mentally ill: An overview and an update

Civil commitment to outpatient psychiatric treatment has only recently become the subject of significant discussion, not only in the professional literature, but also in state legislatures and mental health departments. Task Forces from the American Psychiatric Association and the National Center for State Courts have drafted detailed reports on outpatient commitment, and a growing number of states have modified their statutes and regulations governing the process. The author presents the existing research literature on outpatient commitment in practice, reports recent statutory developments, and discusses specific areas of concern for those planning to propose or implement new procedures, including the right to refuse treatment, confidentiality, and the duty to warn or protect third parties.     

Protecting reasonable conscientious refusals in health care

Theoretical Medicine and Bioethics - Recently, debate over whether health care providers should have a protected right to conscientiously refuse to offer legal health care services—such as...     

Legal and Ethical Considerations for Requiring Consent for Apnea Testing in Brain Death Determination

Abstract

The past decade has witnessed escalating legal and ethical challenges to the diagnosis of death by neurologic criteria (DNC). The legal tactic of demanding consent for the apnea test, if successful, can halt the DNC. However, US law is currently unsettled and inconsistent in this matter. Consent has been required in several trial cases in Montana and Kansas but not in Virginia and Nevada. In this paper, we analyze and evaluate the legal and ethical bases for requiring consent before apnea testing and defend such a requirement by appealing to ethical and legal principles of informed consent and battery and the right to refuse medical treatment. We conclude by considering and rebutting two major objections to a consent requirement for apnea testing: (1) a justice-based objection to allocate scarce resources fairly and (2) a social utility objection that halting the diagnosis of brain death will reduce the number of organ donors.     

Assessing the remedy: the case for contracts in clinical trials

Current orthodoxy in research ethics assumes that subjects of clinical trials reserve rights to withdraw at any time and without giving any reason. This view sees the right to withdraw as a simple extension of the right to refuse to participate all together. In this paper, however, I suggest that subjects should assume some responsibilities for the internal validity of the trial at consent and that these responsibilities should be captured by contract. This would allow the researcher to impose a penalty on the subject if he were to withdraw without good reason and on a whim. This proposal still leaves open the possibility of withdrawing without penalty when it is in the subject's best interests to do so. Giving researchers recourse to legal remedy may now be necessary to protect the science, as existing methods used to increase retention are inadequate for one reason or another.     

论医疗权及其实践

患者的医疗权可以表现为宪法上的应然权利和实践中的实然权利.在具体医疗实践中,患者获得公正、必须和费用节省的医疗服务的权利,是以患者支付医疗费用为前提的.在特定情况下,虽然患者无支付能力,也可以享有医疗权.患者有拒绝医疗的权利.     

BALANCING THE RIGHT TO HABILITATION WITH THE RIGHT TO PERSONAL LIBERTIES: THE RIGHTS OF PEOPLE WITH DEVELOPMENTAL DISABILITIES TO EAT TOO MANY DOUGHNUTS AND TAKE A NAP

In the pursuit of efficient habilitation, many service providers exercise a great deal of control over the lives of clients with developmental disabilities. For example, service providers often choose the client's habilitative goals, determine the daily schedule, and regulate access to preferred activities. This paper examines the advantages and disadvantages of allowing clients to exercise personal liberties, such as the right to choose and refuse daily activities. On one hand, poor choices on the part of the client could hinder habilitation. On the other hand, moral and legal issues arise when the client's right to choice is abridged. Recommendations are offered to protect both the right to habilitation and the freedom to choose.     

Right of active duty military personnel to refuse psychiatric treatment

Under Federal Court precedents, mentally ill patients have a qualified right to refuse treatment. The amount of due process that may be required to override treatment refusals by active duty military patients is discussed. Due process for these individuals need not be judicial, since medical review satisfies federal requirements. Involuntary administration of medication to active duty military personnel is justified in some circumstances. Specific criteria for overriding treatment refusals are suggested. A sample protocol for overriding the treatment refusals of active duty personnel is offered.     

The right to refuse treatment: Paradox,pendulum and the quality of care

This clinical and theoretical overview of the right to refuse treatment will address some of the themes that have dominated this area of interface between psychiatry and the law, and have, perhaps, obscured the real concern of the right to refuse treatment question; i.e., the issue of quality of care. Central themes include factors present in the medicolegal context and recent events, origin of the concept of the right to treatment, the separation of confinement from treatment, and the changing models of vicarious decision making. This review also addresses judicial conceptualizations of treatment, including the concept of quarantine, judicial risk-aversiveness, and judicial fantasies of drug action. Some possible directions for the future are also examined.     

Psychological Factors Behind Truancy,School Phobia,and School Refusal: A Literature Study

Truancy is a problem that normally leads to treatment interventions within different organizations. Within these organizations different perspectives on the causes and consequences of the above problem can be found. The purpose of this literature study is to map out and describe the current state of research within the fields of school refusal, truancy, and school phobia. The investigation was carried out in the form of a systematic review of the relevant research literature. Research shows that approximately 90% of all young people who refuse to go to school have some form of psychiatric diagnosis.     

Involuntary competence

This article addresses whether the state has the right to medicate involuntarily a defendant who is incompetent either to plead guilty or to stand trial for the purpose of restoring legal competence. It first presents the constitutional background concerning incompetence and the right of prisoners generally to refuse psychotropic medication. Then the article examines the individual and state interests that must be considered to decide specifically whether the state may involuntarily medicate a criminal defendant solely for the purpose of restoring competence. Although the individual interests are strong, the article contends that the state does have a right to medicate involuntarily defendants charged with most crimes to restore trial competence, and that adequate remedies are available to ensure that medicated defendants receive a fair trial.     

Social Skills Training for Psychiatric Patients,I

Deficits in social skills are often seen in psychiatric patients. In particular instances these may be a consequence of the psychiatric illness, a contributing cause to that illness, or a feature of the psychiatric disorder. During the last two decades, systematic training programs in social skills have been developed and evaluated for the amelioration of these deficiencies. The author critically reviews basic concepts and methods in social skills training and the results of treatment in case reports, analogue studies, and single-case experimental decisions.