Substituted Judgment and the Right to Refuse Shock Treatment in Washington: in Re Schuoler

• Publication year: 1987

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 11, No. 1FALL 1987

Substituted Judgment and the Right to Refuse Shock Treatment in Washington: In re Schuoler

Gregory S. Marshall

I. Introduction

One of the most significant developments in modern constitutional thought revolves around judicial protection of fundamental privacy and liberty interests.(fn1) These interests are derived from the first, eighth, and fourteenth amendments, the "penumbra" of privacy rights found generally in the Bill of Rights,(fn2) and the common law doctrine of informed consent.(fn3) Courts have held these interests to be of such paramount concern to individual freedom that states may not derogate these interests unless a compelling state interest is at stake. The judiciary's function is to balance the individual's liberty interest against the state's interest in regulating or protecting persons and to focus on the nexus between those two interests.

This Note will consider the process of protecting an individual's constitutional right to refuse intrusive psychiatric treatment-specifically, an involuntarily committed mental patient's right to refuse electroconvulsive "shock" treatment (ECT). This issue illustrates the classic academic conflict between personal freedom and state interests. The decisionmaking process that is used to enforce or override the mental patient's privacy rights will directly affect the interests of the patients, their families, the mental health professionals involved in administering ECT, the states, and the courts. Each of these groups has an interest that conflicts to some degree with the other interests.(fn4)

Analysis of this issue is particularly timely because the Washington Supreme Court has recognized, for the first time in In re Schuoler, the right to refuse ECT.(fn5) Among other significant themes, the existence of Schuoler may suggest a current trend in psychiatric treatment toward a preference for the use of ECT over alternative methods of treatment, such as antipsychotic drugs.

This Note will first analyze and evaluate two competing decision-making models established in other jurisdictions. The Note will then apply that analysis to Schuoler and critically evaluate that decision. The Note will conclude that while the Washington court follows the more appropriate judicial substituted judgment model, its poor articulation of that model may defeat the purpose of the decision: to protect a mental patient's right to refuse ECT.

II. Background

Involuntary commitment is the process of confining a person within the walls of a mental institution, whether publicly or privately administered, against his will.(fn6) When committing an individual, the state has an interest in depriving the patient of his liberty interest, for the benefit of others or the patient himself, through either its police power or its parens patriae power.(fn7)

A person is committed if he falls within one of several statutorily defined categories of mental illness.(fn8) These categories generally require that the person is unable to take care of himself or is a danger to himself or others. Once a patient is committed, the state undertakes the patient's care, protection, and treatment, if necessary. This treatment may include administering psychotherapy, antipsychotic drugs, and possibly ECT; in the past, it has included even psychosurgery.(fn9)

Courts have struggled over the past decade with determining the proper relationship among the judiciary, the mental health professional (MHP),(fn10) and the patient when deciding how to treat an involuntarily committed patient. The controversy has centered on which of these three parties should have the authority to determine whether a patient should receive intrusive psychiatric treatment.(fn11) MHP's have taken the position that they should have the authority to act in the patient's best interests without any judicial intervention.(fn12) Conversely, public interest and civil rights groups have taken the position that the courts should regulate the administration of intrusive treatment,(fn13) giving particular deference to the patient's expressed or implied preference.(fn14)

Courts as well as MHP's have regarded ECT(fn15) and antipsychotic drug therapy as two highly intrusive and potentially dangerous procedures.(fn16) There is a great deal of controversy over the efficacy and potential side effects of these treatment methods. Many authorities find ECT to be a more extreme method of treatment than antipsychotic drug therapy,(fn17) while others find ECT to be more effective than drugs with some types of psychological disorders, and especially in cases of severe depression.(fn18) However, states generally view ECT as a more intrusive method of treatment than drugs.(fn19)

While few courts have directly confronted the issue of the right to refuse ECT,(fn20) some states have established substantive and procedural requirements for protecting the right to refuse antipsychotic drugs. The following analysis will apply two decision-making models, developed for antipsychotic drug treatment, to the case of ECT. This application should reveal the proper groundwork for analyzing how the administration of ECT should be regulated.

III. Two Models for Regulating Treatment Refusal: Medical Second Opinion and Judicial Substituted Judgment

Two states have established doctrines that deal with the issue of regulating intrusive treatment. New Jersey adopted the medical second opinion model as a means of regulating the administration of antipsychotic drugs to involuntarily committed mental patients.(fn21) Massachusetts adopted the judicial substituted judgment model to protect involuntary mental patients from unwanted drug treatment.(fn22) These two models vary in their methods of reviewing an involuntarily committed mental patient's refusal of antipsychotic drugs.

A. The Medical Second Opinion Model

New Jersey's medical model provides that an MHP has the authority to decide whether to treat the patient with antipsychotic drugs.(fn23) The MHP's decision is reviewed through hospital administrative regulations, rather than through the courts.(fn24) The standard for measuring the patient's constitutional right to refuse antipsychotic drugs is "whether the patient constitutes a danger to himself or others."(fn25) This standard appears to establish the threshold requirement for finding that a compelling state interest exists to override the patient's right to refuse intrusive psychiatric treatment.

Reviewing New Jersey's model, a federal court of appeals held in Rennie v. Klein(fn26) that involuntarily committed mental patients have a constitutional right to refuse administration of antipsychotic drugs. That right may be overridden, however, if the patient's doctor determines that the patient 1) will harm himself or others without the drugs; 2) cannot improve without the drugs; or 3) can improve without the drugs, but only at a significantly lower rate.(fn27) The physician who makes the decision to administer such drugs must exercise professional judgment.(fn28)

The Rennie court also determined that under New Jersey's model, MHP's need not select for the patient the " 'least intrusive treatment' available under the circumstances."(fn29) Although one factor MHP's must consider is the possibility and extent of harmful side effects,(fn30) MHP's may constitutionally administer antipsychotic drugs to a patient whenever in their professional judgment they deem such an action "necessary to prevent the patient from endangering himself or others."(fn31) The omission of the "least intrusive" requirement from constitutional scrutiny is significant in that MHP's may apply the treatment they think is in the patient's best interests, regardless of how the patient views the relative intrusiveness of the treatment.

Relying on the Supreme Court's holding in Youngberg v. Romeo,(fn32) the Rennie court held that an MHP's judgment on the dangerousness of a patient and the MHP's decision to administer medication will be presumed valid unless shown to be a "substantial departure from accepted professional judgment, practice or standards."(fn33) The Youngberg court justified this presumption of validity because "there certainly is no reason to think judges or juries are better qualified than appropriate professionals in making [treatment] decisions."(fn34)

An additional rationale for the medical model, found in Parham v. J.R.,(fn35) is that "[t]he judicial model for factfinding for all constitutionally protected interests, regardless of their nature, can turn rational decision-making into an unmanageable enterprise."(fn36) Presumably, the court was referring to the possibility that an incompetent patient might be deprived of necessary treatment if the treating doctor's petition for authorization were to be tied up in the courts. Proponents of the medical model argue that it avoids congestion in the courts and allows MHP's to make more effective, educated decisions for patients.

However, the medical model has been criticized over the past decade as a dangerous method of decision-making. Critics note that the level of deference provided to MHP's through the medical model creates opportunities for unlimited application and abuse.(fn37) By elevating the importance of improving the patient's condition, MHP's diminish the importance of protecting the...