The Right to Refuse Mental Health Treatment

In The Right to Refuse Mental Health Treatment, Professor Bruce Winick of the University of Miami Law School explores the important issues raised by the involuntary administration of mental health treatment techniques to both civil patients and criminal offenders. When does an individual have the right to refuse treatment? When can the state override a competent individual's refusal? What are the legal and therapeutic consequences of recognizing a right to refuse treatment?

Part 1 of the book surveys the various treatment techniques, focusing on their benefits as well as their potential for abuse. Professor Winick establishes a continuum of intrusiveness, starting with psychotherapy and then, in ascending order of intrusiveness, behavior therapy, psychotropic medication, electroconvulsive therapy, electronic stimulation of the brain, and finally psychosurgery. This section of the book seems primarily intended as a source of information for the nonclinician. However, it will benefit the clinician as well by encouraging consideration of degrees of intrusiveness and how the patient may experience each type of therapy.

The second part, encompassing more than half the book, explores the sources of legal restrictions on mental health treatment imposed by state law. Although this section first concisely surveys state and federal statutory sources as well as international law, the major emphasis, appropriately, is on constitutional law. Professor Winick explains how courts have found a right to refuse treatment grounded in the first, eighth, and 14th amendments. He then considers each of the treatment techniques and analyzes when it may constitutionally be imposed against an individual's will.

This section provides a clear and insightful overview of the constitutional theory as well as an in-depth discussion of the major cases. A careful explanation of the principles of constitutional interpretation, including different standards of scrutiny, will be especially valuable to clinicians interested in understanding the law and policy concerns underlying the courts' decisions.

Part 3 considers the therapeutic consequences of recognizing a right to refuse treatment. Will it increase or decrease the likelihood that treatment will be effective? Will it change the therapist-patient relationship in ways that enhance or diminish its therapeutic potential? Will it have a positive or negative effect on offender recidivism? The book concludes by encouraging patients and clinicians to explore ways of using legal devices such as advanced directives or durable powers of attorney for health care to preserve patient autonomy while permitting appropriate treatment.

This is an impressive first volume in the American Psychological Association's new Law and Public Policy Series. The book is thoroughly researched, well organized, and clearly written without oversimplification. The author, a preeminent scholar in the field of mental health law, is familiar with and sensitive to the differing perspectives of professionals from the fields of law, psychiatry, and psychology. As co-originator of the exciting concept of therapeutic jurisprudence, he uses a genuinely interdisciplinary approach that should help both clinicians and lawyers achieve a deeper understanding of the complex issues raised by the right to refuse treatment.

Ms. Costello is professor of law at Loyola Law School in Los Angeles.