Justice Cardozo famously wrote in the case of Schloendorff v. Society of
New York Hospital: “[E] very human being of adult years and sound mind has a
right to determine what shall be done with his own body” [20 (pp 129-130)]. A patient’s right to accept or refuse treatment, as well as to provide informed consent, highlights the value of autonomy. However, in attempting to bal- ance the competing interests between individual rights and societal inter- ests, states have taken different approaches. In some jurisdictions, such as Washington and California, the right to make treatment decisions continues through civil commitment [21]. In other jurisdictions, such as Utah, invol- untary commitment incorporates incompetence to make medical decisions [22].
By way of illustration, administering antipsychotic medication to someone who lacks capacity to consent to or refuse the medication var- ies by jurisdiction. The process for administering antipsychotic medica- tion to civilly hospitalized persons in Washington is as follows: After an evaluation and determination that antipsychotic medication is medically necessary, the treating physician attempts to obtain informed consent from the patient. If the patient lacks the capacity to make such medical decisions or refuses the medication, the treating physician must opine that (1) failure to medicate may result in a likelihood of serious harm or substantial deterioration and (2) that there is no less intrusive means of treatment [23]. A second physician must then evaluate the patient and
opine as to both (1) and (2). When both physicians agree, the patient may be medicated despite refusal for up to 30 days. Additional review is needed for medication administration beyond 30 days and may require a court hearing. In addition, patients may refuse any psychiatric medi- cation, including involuntarily ordered antipsychotic medication begin- ning 24 hours before any initial or continued civil commitment hearing or involuntary medication hearing [24]. However, a specific reference to the presence of a mental disorder is not stated, but appears to be assumed from the mental disorder criterion required to initiate involuntary com- mitment in Washington.
According to California law, a patient who is involuntarily committed and refuses antipsychotic medication is entitled to review hearing(s) before the medication is administered in nonemergency situations [25]. In California, capacity to refuse medication hearings are commonly referred to as “Riese Petitions” after a prominent legal case that resulted in these hearings. In
Riese v. St. Mary’s Hospital and Medical Center [26], the court held that, absent
judicial determination of incompetence, informed consent is required to administer antipsychotic medications to involuntary committed persons in no emergent situations. To assess capacity, the court in Riese stated that the decision maker should focus on whether the patient: (1) is aware of his or her situation (e.g., diagnosis); (2) is able to understand the benefits, risks, and alternatives to medications; and (3) is rationally able to understand and evaluate the medication information and participate in the treatment deci- sion. After this 1991 decision, the California legislature enacted SB 665 and codified in the statutes [27–29], which requires informed refusal for psy- chotropic medications absent an emergency and capacity hearings for those thought to be lacking capacity for such informed refusal of these medica- tions. In practice, there is no interest in California in conducting hearings on those who consent to medication but lack the capacity to give informed consent.
Under California law, a patient who is to be involuntary medicated must be proven to lack capacity by “clear and convincing evidence.” In practice, a court-hearing officer listens to the testimony at the hospital facility and makes a determination about whether or not the patient will be forcibly medicated. There may be patients who are found detainable at probable cause hearings, but they are not permitted to be given involuntary administration of psychotropic medication as a result of the Riese hearing. The California State legislature has not specified which mental disorders are relevant to Riese Petitions, nor has it specified which diagnostic system should be used. However, as with involuntary civil commitment, the use of the current DSM edition (now DSM-5) has become the standard bearer. However, the central issue in determining whether to override a person’s medication refusal is his or her lack of capacity to weigh the risks and benefits of psychotropic
medication. Therefore, a serious mental disorder would usually be required to lead to a lack of this capacity. Some other states have similar procedures.
In light of which mental disorders are represented in those who are invol- untarily civilly committed, the DSM-5 diagnostic categories of Schizophrenia Spectrum and Other Psychotic Disorders, Bipolar and Related Disorders, and Depressive Disorders, will likely dominate the “capacity” hearings for two key reasons: (1) these disorders often result in a lack of capacity when the person is symptomatic, and (2) these disorders have medications likely to treat active symptoms. Most hearing officers and judges will only order medi- cations for those with serious mental disorders for which there are medica- tions to remedy the problem.
“Capacity” hearings, regardless of the diagnosis, are likely to primarily involve antipsychotic medications, which is also a pragmatic issue because there are no intramuscular forms for the currently commonly used antide- pressants or mood-stabilizers. However, an antipsychotic medication that also helps treat bipolar disorder symptoms could be administered as an intramuscular injection alternative when a patient refuses a mood stabilizer and meets criteria for involuntary treatment. The “Riese petition” asks the provider to describe active symptoms of the mental disorder. DSM-5 has included the “Clinician-Rated Dimensions of Psychosis Symptom Severity” [1 (pp 743-744)], which may begin to play a role in these hearings. This DSM-5 psychotic symptom rating scale has the appearance of a diluted Brief Psychiatric Rating Scale (BPRS) [30] or Positive and Negative Syndrome Scale (PANSS) [31] and carries with it potential validity and reliability challenges if introduced into the courtroom.
Psychiatric treatment refusals for inmates detained in a correctional facility or for individuals found incompetent to stand trial are guided by different laws than those articulated above for civilly committed patients. In these circumstances, absent emergency, administration of psychotropic medications generally requires incapacity or refusal and the addition of a compelling government interest, such as to prevent harm in the case of penal patients (see Washington v. Harper [32], Sell v. US [33]). In Washington
v. Harper [32], the court held (among others) that the penal institution’s
procedure adhered to substantive due process because it was reason- ably related to the state’s legitimate interest in reducing danger posed by a violent, mentally ill inmate. The policy applied exclusively to mentally ill inmates [32 (219-227)]. In Sell v. United States, the question before the court was whether the “Constitution permits the Government to adminis- ter antipsychotic drugs to a mentally ill criminal defendant” to render the defendant competent to stand trial (emphasis added) [33 (p166)]. The Court answered in the affirmative when certain conditions are met: the treat- ment is medically appropriate, substantially unlikely to have side effects that may undermine the fairness of the trial, less intrusive alternatives to
medications were considered, and forced medication is necessary to further important government interests. Neither court in Harper or Sell commented on whether specific mental disorders are necessary, nor whether any spe- cific diagnostic system is required in these determinations. Because specific diagnoses are not identified as required in these treatment refusal settings, one can infer that DSM-5 changes are unlikely to have any impact in these particular situations.