The Right to Treatment: Professional Liabilities In The Criminal Justice And Mental Health Systems

• DOI: 10.1177/003288557405400205
• Published date: 01 October 1974
• Date: 01 October 1974
• Subject Matter: Articles

The Right to Treatment: Professional
Liabilities In The Criminal Justice
And Mental Health Systems
By Beverly G. Toomey, M. S.W*, Harry E. Allen, Ph. D.**
Clifford E. Simonsen, Ph. D
.* **
For more than a decade, the rights of prisoners and mental
patients have been a major area of concern of the criminal justice
and mental health systems. One issue concerns the ‘‘uight to treat-
ment,&dquo; emerging from litigation and policy reformulation. Significant
to both mental health and criminal justice professionals, the defini-
tion of this right seems to be the result of greater societal expectations
of cures through the disciplines of medicine, psychology, and the
social sciences, and to a changing conception of human care. The
definition is not the result of new legislation; rather, it derives from
the interpretation of our 200-year old constitution. That document
has not been changed but has been interpreted; the development
and progress in American society has led to reformulated ideas and
new social responsibilities. Chief Judge J. Smith Henley writing in
Holt v. Sarver (1970) 1 noted: &dquo; ( a ) sociological theory or idea may
ripen into constitutional law; many such theories have done so.&dquo;2
Right to treatment is one such theory. The definition of such a right
became possible only after pronounced advancements in medical
science and theory in sociology and psychology contributed to the
development of an assumed competence to understand and treat
mental illness and social deviance.
Although the majority of cases defining right to treatment
involve the mentally disordered, the courts have recently suggested
the possibility of a right to rehabilitation/treatment for prisoners
confined in correctional institutions after adjudication of criminal
culpability.
The purpose of this paper is twofold; intially, it reviews the
legal basis for the right to treatment as currently defined by the
courts and, subsequently, it discusses the responsibilities and liabil-
ities of employees and officials charged with the custody and care of
institutional residents who have the right to treatment.
The mental health system, although primarily concerned for
mental health trea tment, also has responsibility for the mentally
disordered offender in many states. The criminal justice system
must deal with the right to treatment from two different perspectives,
* Doctoral student. School of Social Work. and Graduate Research Associate,
Program for the Study of Crime and Delinquency, The Ohio State University.
**

Associate Professor, School of Public Administration, and Director, Program
for the Study of Crime and Delinquency. The Ohio State University.
***
Office of Research, Department of Social Health Services, State of Washington.
43

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as well. First and foremost, this right has been defined for those
hersons who fall under that broad definition of the mentally disor-
dered offender. Legally treated much like those involuntarily commit-
ted through civil proceedings. these include:
1. Those persons declared incompetent to stand trial;
2. Those not giility by reason of insanity;
3. Those persons adjudicated in nced of treatment under a va-
rietj- of special stattiseq. such as the defective delinquent,
psychopathic offender, and sexually dangerous persons,
4. Convicted offenders who become mentally ill while incar-
’
(-erated under sentence.
The fact that these individuals are confined for care and treat-
ment rather than punishment is significant to the legal definition of
their right to treatment. However. the right-to-treatment issue also
has relevance for the largest category of institutionalized clients of
the criminal justice system, the convicted offender serving a jail or
prison sentence. Although nioderen penologists stress the rehabilita-
tion goals of confinement.&dquo; American society has traditionally sup-
ported punishment as the main purpose of incarceration. The defni-
tion of the right to rehabilitation/treatment for prisoners is derived
from a legal foundation which differs from the mental health
arguments and, therefore. will be discussed separtely.
Treatment and Custody
Since the beginning of organized community life. societies
have struggled with the identification and management of various
deviant members. Our society, with its constitutional protection of
rights and concern for individual liberties, has specified those condi-
tions under which an individual’s freedom may be limited for the
good of the community. These philosophical foundations provide the
basis for the definition of the right to treatment.
To understand the &dquo;right to treatment,&dquo; it is essential to discuss
the legal groutidwork justify-ing confinement. While justification
differs in its particular points for each of the above groups, in using
the broadest classification one could outline two justifications for the
restriction of an individual’s liberty: one is to protect society from
the individual; and the other is to protect the individual from him-
self. The individual’s potential dangerousness to himself or others is
crucial. Throughout the history of corrections and mental health care,
these two criteria have prevailed as the iito.,t frequent basis for deten-
tion. But because it has been costly B and also inhumane) to confine
people indefinitelv. the ultimate objective of incarceration has become
correction or cure of the individual so the confined individual could
eventually return to free society. How does this apply specifically to
each of the confined groups? Table 1 outlines the options.
Protectiun of society from dangerous persons has always been
an accepted reason to confine the criminal or the mentally ill person.
In 1845, Chief Justice Shaw of Massachusetts handed down a decision4
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providing the basis for the detention of the insanc not only to protect
society but also for remedial trcatment.5 This case, although ambigu-
ous. is considered the landmark for civil therapeutic commitment,
recognizing both the institution as a place of treatment and treat-
ment at a reason for detention.
Before continuing the discussion of impacting case law. it is
necessary to define treatment.6 In its most general dictionary defiui-
tion, treatment is the manner in which a person or thing is handled,
used or processed. More specifically. in the right to treatment, the
&dquo;treatment&dquo; is meant to be therapeutic or rehabilitative.
In the context of this paper, the goal of treatment is to return
an indiv idual ciefined was defiant to some more socially acceptable con-
dition. The more general definition has been used by professionals i1
many discipline- to identify various kinds of actions and procedures
to hc applied to different groups of people, such as the mentally ill.
the mentally ill offender. the psychopath and the convicted felon.
Different treatments have been ,1cfined for different groups. Despite
this wide variety of treatment programs, there is serious question as
to whether any of these treatments can consistently cure or even sub-
stantially improve the various deviants who have been confine.
7
Inasmuch as within the medical profession there is a substantial
difference of opinion as to what is adequate treatment, it is difficult
for courts to examine this iasue, even though some have attempted it.
The fact remains that justification for confinement rests on:
I11
l
the need for treatment of the involuntarily civilly committed
mentally ill person. the mentally disordered offender and possibly the
ordinary- convicted felon. and (2) on the ability to give the treatment
which restores the individual’s ability to function adequately in the
free community.
Morton A. Birnbaum first used the term &dquo;right to treatment&dquo;
in an .4merican Bar Association Journal article in 1960, stressing the
idea that a mentally ill person committed to a public institution had
a legal right to be treated &dquo;so lie may regain his health. and therefore
his liberty as soon as possible.&dquo;8 Birnbaum argued at the time that
American society recognized a moral right to trcatment but the legal
right had not been established. He mrred the legal profession to move
in...