?: v National Institute of Mental Health LEGAL ASPECTS OF THE ENFORCED TREATMENT OF OFFENDERS Crime and Delinquency Issues U.S. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE Public Health Service Alcohol, Drug Abuse, and Mental Health Administration ''a eo ''evn ‘CRIME AND DELINQUENCY ISSUES: A Monograph Series Dern SEP el LEGAL ASPECTS OF THE ENFORCED TREATMENT OF OFFENDERS | by R. KirklandfSchwitegebel [Ed.D., J.D. Associate Professor of Psychology California Lutheran College U.S. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE Public Health Service Alcohol, Drug Abuse, and Mental Health Administration A US, National Institute of Mental Health Center for Studies of Crime and Delinquency 5600 Fishers Lane Rockville, Maryland 20857 ''Esse 3 UR.” Pu BC This monograph is one of a series on current issues and directions in the area of crime and delinquency. The series is being sponsored by the Center for Studies of Crime and Delinquency, National Institute of Mental Health, to encourage the sate of views and to promote indepth analysis and recommendations. This monograph was written by a recognized authority on the ‘watlect under contract number 282-77-0133 from the National Institute of Mental Health. The opinions expressed herein are the views of the author and do not necessarily reflect the official position of the National Institute of Mental Health or the Department of Health, Educa- tion, and Welfare. The National Institute of Mental Health has obtained permission from the copyright holders to reproduce certain material which appears on pp. 25-26, 41-42, 92-93, 95-101. Further reproduction of these copyrighted materials is prohibited without specific permission of the copyright holders. All other material contained in the volume, except quoted passages from copyrighted sources, is in the public domain and may be used and reprinted without permission of the author or the National Institute of Mental Health. Citation of the source is appreciated. ( DHEW Publication.No. (ADM) 79-831 Printed 1979 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 Stock No. 017—024—00963-6 ol ''KE 3928 S35 IL/BL FOREWORD pue During the last 15 years there has been considerable ferment and change in the way our society provides caré and treatment for the mentally disabled. These issues and problems have been especi- ally troublesome when they have involved persons (the mentally ill, offenders, and mentally ill offenders) who have been subjected to involuntary confinement. Serious concerns have been raised about the manner in which the parens patriae objectives of the State (viz., to provide care for those unable to care for themselves) have been allowed to become confused and confounded with the State’s police power objectives, viz., to protect the community from harm. The development of legal concepts pertaining to the “right to treatment” led inevitably to related concerns about the circum- stances under which an individual should also be able to exercise the right to refuse treatment. Similar concepts and legal doctrine have been the subject of much legal and judicial activity with re- spect to the right to habilitation for the mentally retarded and the right to rehabilitation for incarcerated offenders. Since 1968, the Center for Studies of Crime and Delinquency of the National Institute of Mental Health (NIMH) has had a program priority pertaining to interactions between the legal (especially criminal justice) and mental health systems. In addi- tion to research and related endeavors, the center has published several items in this monograph series in efforts to bring some major developments and trends to the attention of program administrators, policymakers, and legal and mental health professionals. Thus, dur- ing the past decade, the following monographs in the law and mental health area have been published by the center: Schwitzgebel’s Development and Legal Regulation of Coercive Behavior Modifica- tion Techniques With Offenders (NIMH 1971); McGarry et al.’s Competency to Stand Trial and Mental Illness (NIMH 1973); _ Stone’s Mental Health and Law: A System in Transition (NIMH 1975); and Wexler’s Criminal Commitments and Dangerous Mental Patients: Legal Issues of Confinement, Treatment, and Release (NIMH 1976). This monograph by Dr. R. Kirkland Schwitzgebel provides an update of some issues that were addressed in his earlier monograph almost 9 years ago (NIMH 1971). The major purpose of the mono- graph, however, is to discuss and clarify legal issues involved in the therapeutic treatment of patients and prisoners after their initial iii ''iv FOREWORD classification and during their progress in the mental health and criminal justice systems. The analysis thus provides a very useful complement to the aforementioned monograph by Professor David Wexler (NIMH 1976) in which he discussed procedural issues related to the sentencing, commitment, transfer, and release of offenders. As Dr. Schwitzgebel notes in his Introduction, this monograph attempts to present major trends in the relevant law as they are— rather than as the author might wish them to be. Thus, the author has tried to describe and discuss major developments and trends in an objective fashion. The many controversies and conflicting views pertaining to these developments can readily be surmised from the extensive citations. Readers should also find useful the glossary of terms and concepts that has been provided in Appendix B, since the legal and mental health fields use technical terms whose meaning is rather specific and different from common usages. Similarly, the author has included various other types of information in the appendixes that may not be readily available to many readers. The author, Dr. R. Kirkland Schwitzgebel, has received formal education in both psychology and law from Harvard University and has written extensively on psychological as well as legal topics. Combined with his impressive background and scholarship, Dr. Schwitzgebel brings an ability to write in a clear and interesting style. In order to provide the author full freedom to develop the issues pertinent to the topic, no detailed specifications or guidelines were set in advance, and no substantive changes have been made in the manuscript that was submitted to us. Accordingly, the views ex- pressed here are those of the author. This center is pleased to make this monograph widely available in order to facilitate further discus- sion and thought about the important issues that have been addressed. Saleem A. Shah, Ph.D., Chief Center for Studies of Crime and Delinquency National Institute of Mental Health ''FOREWORD v References National Institute of Mental Health. Development and Legal Regulation of Coercive Behavior Modification Techniques With Offenders, by Schwitz- gebel, R.K. DHEW Pub. No. (HSM) 73-9015, 1971. (Reprinted as DHEW Pub. No. (ADM) 74-102, 1974.) Washington, D.C.: Sup. Docs., U.S. Govt. Print. Off., 1971. National Institute of Mental Health. Competency to Stand Trial and Mental Illness, by McGarry, A.L., Curran, W.J., Lipsitt, P.D., Lelos, D., Schwitz- gebel, R., and Rosenberg, A.H. DHEW Pub. No. (ADM) 77-103, 1973. (Reprinted in 1977.) Washington, D.C.: Sup. Docs.,U.S. Govt. Print. Off., 1973. National Institute of Mental Health. Mental Health and Law: A System in Transition, by Stone, A.A. DHEW Pub. No. (ADM)76-176, 1975. (Reprinted in 1976.) Washington, D.C.: Sup. Docs.,U.S. Govt. Print. Off., 1975. National Institute of Mental Health. Criminal Commitments and Dangerous Mental Patients: Legal Issues of Confinement, Treatment, and Release, by Wexler, D.B. DHEW Pub. No. (ADM) 77-331, 1976. (Reprinted in 1977.) Washington, D.C.: Sup. Docs., U.S. Govt. Print. Off., 1976. ''''CONTENTS Foreword ........ 2c ccc eee eee eee eee eee eens iii 1. Introduction ........ 0.0.0... ccc eee eee eee 1 2. Overview of Constitutional Doctrines ................. 5 Cruel and Unusual Punishments ................... 6 Punishment ........... 0.00 cece ee eee ee eee eee 6 Right to Adequate Treatment ................... ti Limits on Behavior Modification as Punishment ..... 10 Due Process ......... 0... cece eee eee ee eens 15 Procedural Due Process ............ 0000 cece eee 16 Substantive Due Process .............0000e ee eee 20 Equal Protection .......... 0c ccc cece cece eeees 27 PRIVACY! oo ss intidle Fs attemitls s ww ds ewehals saumwes Fs 31 Miscellaneous Doctrines .............0 000 cee eeeae 35 3. Conditions for Valid Treatment Agreements ............ 43 CONSCME « si dame vi owe sa Wew GDB E Boer ewe 08 43 CONtACt, si awee ds Faia ee ems s ramen se pwunn es 48 Limiting Doctrines .........0 0.0.0... ce eee cee eee 53 Fraud and Misrepresentation ..............2.000. 53 DuresS ....... ee ee eee eee nena 54 Coercion 1.1... eee eee eee eee eee 55 Undue NflWencée «5 vkasc cv vesw ct iiimawws ntwwu's 57 Unconscionability ..... 0... 0... cee cee ee eee 59 4. Special Issues ... eee eee es 61 Right to Refuse Treatment ........... 0.0.00 e eee 61 “Least Restrictive Alternative’? Doctrine ............. 68 Conditional Release Programs ................00005 70 Use of Habitual Offender Statutes .................. 74 Mentally Incompetent Offenders ................... 79 5. Conclusion .......... cee eee eee eens 83 APDCNGIXES 2645 tsiwen as Dewwe cG Wee we oa wwe oe RR 85 A. Bill of Rights and Related Amendments ............. 85 B. Glossary of Terms and Concepts ................005 88 C. Suggested Statute: Hazardous Treatment and Treatment Involving Unusual Discomfort .......... 92 D. Hlustrative Consent and Contract Forms ............. 94 E. Statutes With Conditional Release Provisions ......... 107 Footnotes 2.0... . cee ec ee eee eee eens 109 Vii ''''CHAPTER 1 Introduction Within the past 10 years, courts have been more willing than in the past to consider cases involving mental patients and prisoners. As the courts have abandoned their old hands-off policy, there has been a rush of new legal doctrines, cases, and statutes. Much of this legal activity has centered around the constitutional rights of mental patients and prisoners, rights contained in the U.S. Constitution and the 26 amendments to it. A major purpose of this monograph is to explore the relationship between the rights of offenders and their therapeutic treatment in prisons and mental hospitals. Because this topic is large and the monograph is small, certain aspects must be eliminated or only briefly discussed. Therefore, extensive references should help readers to locate additional discussions of topics of interest. Appendixes are used to present background and original material in more detail. There is relatively little discussion in this monograph of proce- dural issues involved in the sentencing, commitment, transfer, and release of offenders. These issues are well covered in a monograph by David Wexler, Criminal Commitments and Dangerous Mental Patients: Legal Issues of Confinement, Treatment, and Release. ' Wexler’s monograph, one in a series of monographs produced by the Center for Studies of Crime and Delinquency, deals extensively with the classification and processing of dangerous mental patients. He gives particular attention to special categories of offenders, such as sexual psychopaths, defendants found incompetent to stand trial, defendants found not guilty by reason of insanity, and prison-to- hospital transferees. He analyzes in detail the legal and policy aspects of the commitment of these offenders. This monograph, in contrast, focuses upon legal issues in the treatment of patients and prisoners after their initial classification and during their progress through the mental health and criminal justice systems. The reader should find these two monographs compatible in content, policy orientation, and conclusions. The therapeutic treatment of offenders has become a matter of considerable controversy, partly because the treatment of offenders takes place in situations having great potential for abuse. When a patient is handcuffed for 3 years? or spends 14} years in an 1 ''2 LEGAL ASPECTS OF ENFORCED TREATMENT institution awaiting trial,*> the abuse is clear. Conversely, there have been prison riots, and administrators have often been legally harassed. One prisoner, for example, sued prison officials for allegedly forcing upon him a “‘violent and revolutionary mentality” which caused him to commit assaults upon other inmates.* In addi- tion, he alleged that mind-altering drugs were injected into his food and gases were pumped into his cell to provoke him to violence. The prisoner sought, unsuccessfully, the immediate payment of $3,000,000. Lawyers also may engage in illogical conduct when they feel their rights are violated. Patients’ rights may then become secondary. In one case, a recently released mental patient suddenly jumped over a desk and bit off a portion of a lawyer’s nose.> For this, the patient was sentenced to 3 years in prison for assault and battery. (The patient’s rights ended where the lawyer’s nose began.) In addition, the lawyer sued and won a judgment of $200,000 against a hospital and a psychiatrist for failing to confine and adequately supervise a dangerous mental patient.° Since the law can be both used and misused, legal cases arise from particular fact situations. The outcome often depends upon whose nose is being bitten. The parties to the dispute are primarily interested in winning the case—they are not interested in going beyond the needs of the situation to solve collateral social problems. Therefore, the legal decision in a specific case should be viewed in terms of its particular facts with care taken not to overgeneralize from a case. Cases point the direction in which the law may be developing. Interpretation is usually needed to apply the law to new fact situations, especially when the law has been developing as rapidly (and sometimes as inconsistently) as it has in the mental health area. Interpretations of law, like interpretations of the stock market, may vary, but facts can be agreed upon, e.g., the Dow Jones Industrial Average or the findings in a particular case. The implications are usually clearer in hindsight than in foresight. Often, only major trends can be accurately seen ahead of time. This monograph attempts to present major trends in the relevant law as they are, rather than as the writer wishes them to be. As a news reporter once commented, “I only report the news, I don’t make it.’ Of course, it is not possible to eliminate completely all bias; but the following discussion separates personal opinion from legal findings and identifiable trends. Chapter 2 presents an overview of major constitutional doctrines such as cruel and usual punishment and due process that may limit the enforced treatment of offenders. Chapter 3 deals with the emerging trend toward the use of explicit agreements and contracts in treatment. The requirements ''INTRODUCTION 3 for developing legally valid treatment contracts with prisoners and patients are discussed. Because these contracts may be limited or voided by various legal doctrines, issues such as coercion, duress, and misrepresentation are also considered. Some illustrative consent and contract forms are provided in Appendix D. Chapter 4 contains a discussion of special topics of increasing concern, such as the right to refuse treatment and the use of “least restrictive conditions” in commitment and treatment. Issues re- lated to treatment requirements imposed during parole, work release, and hospital leave or aftercare status are discussed here, with particular attention to conditional release programs. A list of current conditional release statutes is provided in Appendix E. Finally, issues concerning mentally incompetent offenders are discussed. '' we ''CHAPTER 2 Overview of Constitutional Doctrines The first 10 amendments are commonly known as the Bill of Rights. Several amendments directly affect offenders, for example, the first amendment to the Constitution which guarantees freedom of speech and religion, the fourth amendment which guarantees freedom from unreasonable searches and seizures, and the eighth amendment which prohibits cruel and unusual punishments. Also, the rights of offenders are sometimes fashioned out of a combina- tion of amendments. Perhaps the most notable right of this kind is the right to privacy. Although privacy is not explicitly men- tioned in the Constitution or the amendments, the Supreme Court has found that citizens have such a right, based upon its interpreta- tion of several amendments.’ A list of amendments particularly relevant to the rights of offenders can be found in Appendix A. Prison inmates are confined under the police power of the State which is used to protect the health, safety, welfare, and morals of the public. In contrast, mental patients who are danger- ous only to themselves are involuntary civilly committed to mental hospitals (or other mental health facilities) under the parens patriae power of the State. The central purpose of the parens patriae power is to promote the welfare and best interests of the patient.® The clearest example is the involuntary confinement of an obviously insane person who is physically harming himself in a serious manner. Mentally ill persons who are presumed to be dangerous to other people have been committed, using both the parens patriae and police power doctrines in various States. Increasingly, the com- mitment of these presumably dangerous people has been chal- lenged because of the difficulty in predicting accurately their dangerousness.? Customarily, the courts have been somewhat more active in defining and supporting the rights of mental patients and juvenile delinquents committed under the parens patriae power of the State than prisoners or others confined under the police power of the State. The following discussion of constitutional rights focuses first upon the rights of mentally competent prisoners confined under police power and then moves to a consideration of these rights for offenders committed to institutions as_ patients. 5 ''6 LEGAL ASPECTS OF ENFORCED TREATMENT Additional rights, such as the right to treatment, may also be required for mentally ill patients and juvenile delinquents. Cruel and Unusual Punishments Punishment As previously noted, the eighth amendment prohibits cruel and unusual punishments, such as torture, disfigurement, and burning. Physical injuries and indignities deliberately inflicted by guards or prisoners upon other prisoners violate this provision of the Constitution. The phrase, ‘‘cruel and unusual,’’ is usually interpreted to mean punishments that are contrary to contemporary standards of human decency.!® Of course, what is ‘‘decent’’ has varied from time to time in American history. But the goal is basically to protect the “dignity of man”'’ and to avoid punishments that “shock the general conscience”’ of the public.’ Specifically, punishments may be prohibited either because the method of punishment is unnecessarily cruel or because the punishment is excessive in view of the offense. For example, a prisoner may not be chained to his cell by his neck,'* an unneces- sarily cruel punishment, nor may a prisoner be punished by starva- tion or by the deprivation of adequate heat or space. Recently, some courts have examined the prison setting as a whole and have found a violation of the eighth amendment, even though no one aspect of the situation is itself a violation of the amendment.'* Conditions as a whole must not be disgusting and degrading. The general principle is that punishment should be proportional to the offense. The punishment should not go beyond legitimate penal objectives. A punishment that was found excessive is the case of Weems v. United States,'° in which the offender was found guilty of a minor falsification of a public record and sentenced to 15 years of hard and painful labor, the wearing of a chain fastened from his waist to his ankle, and surveillance for life. The Supreme Court declared this to be cruel and unusual punishment. Not all physical force or constraint is cruel and unusual punish- ment. Some physical force (or medication) may be temporarily used to prevent a prisoner from physically harming himself or others.'®° Reasonable force may be used to gain compliance with an order necessary for prison security, but physical force or medica- tion should not be administered as a form of punishment or retaliation. A guideline often used in determining the limits of ''CONSTITUTIONAL DOCTRINES 7 physical force allowable under the eighth amendment is found in Johnson v. Glick: Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s consti- tutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.!’ Courts examine the circumstances and intentions of the persons involved. As a general rule, only force necessary to accomplish a legitimate purpose may be used. Sometimes a moderate excess is allowable in light of the circumstances, such as the aggravation of the situation by the prisoner. !® The use of physical force or medication should not be used as a routine procedure for the general management and discipline of prisoners.'® The courts are particularly concerned about the use of physical force or medication with juveniles. One Federal District Court has not permitted the use of physical restraints with juveniles for more than 30 minutes.?° This same court also prohibited the use of the tranquilizer chlorpromazine (Thorazine) except as a part of an ongoing treatment program.”' The administration of drugs to adult or juvenile offenders should not be done to ‘‘punish”’ for misbehavior or rule violations. A traditional method of punishment is solitary confinement. The use of solitary confinement is not illegal per se, but the conditions of confinement must not be ‘“‘shocking’’ or “‘debasing,’’ as in the absence of food and facilities for personal hygiene.*? Nor should the solitary confinement be excessively long in light of the offense. Courts, however, vary widely in their opinions about permissible length. The Supreme Court determined that it is unconstitutionally cruel to confine prisoners in special, unusually depriving punish- ment cells for more than 30 days.** The time limit is not absolute, but it is important in evaluating the constitutionality of the punishment. Other factors, such as the size of the cell and hygiene facilities, may also be considered. The current trend is toward reducing the maximum allowable time. Right to Adequate Treatment The law is clear that prisoners must be provided with adequate medical treatment.** Whether they must be provided with ''8 LEGAL ASPECTS OF ENFORCED TREATMENT psychological treatment or rehabilitation is an unsettled issue. At present, there is no such general obligation, but courts are now beginning to examine carefully the potentially damaging psycho- logical effects of a prison environment without treatment avail- ability. A few courts have moved far in this direction. The court in Pugh v. Locke** found a violation of the eighth amendment because ‘‘the conditions in which Alabama prisoners must live... bear no reasonable relationship to legitimate institutional goals. As a whole they create an atmosphere in which inmates are com- pelled to live in constant fear of violence, in imminent danger to their physical well-being, and without opportunity to seek a more promising future.’’ Because the court also noted that treatment for prisoners with physical or emotional problems was inadequate, prison officials were required to identify those inmates requiring mental health care, to make arrangements for their care, and to arrange for inmates with more severe psychological disturbances or mental retardation to be transferred to other institutions where adequate treatment and care would be provided. In Bouring v. Godwin,*® the court held that inmates are entitled to psychological or psychiatric treatment if: (1) The symptoms indicate a serious disease or injury, (2) the disease or injury is curable or can be substantially alleviated, and (3) the potential for harm to the prisoner by reason of delay or denial of care is sub- stantial. Only those prisoners meeting the three criteria stated above are entitled to treatment. The essential test for legally required treatment is one of “‘medical necessity”? and not simply that the treatment is “desirable.”’?” Using the Bowring test, a Federal district court in Laaman v. Helgemoe?® decided that “‘prison inmates are entitled to reason- able psychiatric and/or psychological treatment when medically necessary, and that defendants [prison officials] are under an affirmative duty to provide such care to inmates diagnosed as needing it.’ The court required an increase in mental health person- nel, an improvement in diagnostic services, and the completion of plans for classification and mental health care. The Laaman court also observed that no court has recognized a right to rehabilitation in the sense that an individual has the right to leave a penitentiary equipped to function as a law-abiding citizen. The court suggested, however, that the conditions of confinement should not threaten prisoners’ sanity or mental well- being, should not be counterproductive to rehabilitation, and should not increase the probability of future incarceration.’? This is further than most courts have gone in requiring conditions that are not counterproductive to rehabilitation. The Fifth Circuit Court ''CONSTITUTIONAL DOCTRINES 9 of Appeals explicitly rejected the notion that prisons must provide living conditions or programs for adult prisoners to avoid their mental, physical, and emotional deterioration. *° It is not likely that the courts will quickly agree upon a right to rehabilitation or treatment because of the increasingly popular concept that prisoners ‘“‘deserve’’ prison sentences for their crimes against society. This ‘‘just deserts’? concept of imprisonment does not include rehabilitation, or even deterrence, as a purpose of imprisonment. Also, there has been considerable controversy as to whether rehabilitation is actually feasible or even possible with offenders. *! In summary, the courts seem to be moving toward requiring treatment for severely mentally disturbed adult prisoners but not for adult prisoners in general.** If disturbed prisoners within the prison cannot be provided with adequate treatment, they should be transferred to institutions that can provide the necessary treat- ment. This would be consistent with the standards-for-treatment programs recommended by the National Advisory Commission on Criminal Justice Standards and Goals.*? Surely, treatment, already available in the prison, that improves the condition of severely disturbed prisoners (or prevents their further deterioration) should not be deliberately withheld. Nor should medical ‘‘treatment’’ be used for punishment or disciplinary purposes. Whether the overall condition of a prison does not threaten the mental well-being of prisoners or diminish their rehabilitation is an unsettled policy and legal matter. For juvenile delinquents committed to an institution, in contrast to adult prisoners, there is judicial recognition of a right to treatment.** This right includes both medical and psychological treatment. One reason for this right is the commitment of juve- niles under the parens patriae doctrine which requires the State to provide for the welfare and best interest of the child. There are often State statutes which require States to provide care, treatment, or rehabilitation for juveniles.*° Similarly, there is much judicial recognition of a right to treat- ment for involuntarily committed mental patients, although the Supreme Court has not ruled directly on the matter. In O’Connor v. Donaldson,*® the Supreme Court decided that a civilly com- mitted mental patient has a constitutional right to be released from a mental hospital if he is not dangerous to himself or others, is capable of surviving in the community with help, and is receiving only custodial care instead of treatment. The decision was narrow and left unanswered the question as to whether involuntarily committed dangerous persons have a right to treatment. The case 305-654 0 - 79 - 2 ''10 LEGAL ASPECTS OF ENFORCED TREATMENT dealt essentially with a right to liberty of a nondangerous person. Lower courts have tended to find a right to treatment for dangerous patients.*” In addition, the majority of newly enacted commitment statutes expressly guarantee a right to treatment for patients with- out a distinction as to whether the patients are gravely disabled (unable to care for themselves), dangerous to themselves, or danger- ous to others.*® The amount or quality of treatment constitutionally required has been a matter of diverse judicial opinion. The terms ‘‘adequate,”’ “appropriate,” ‘‘suitable,”’ and ‘‘effective’’ have all been used by courts to describe the necessary treatment.°° Treatment is probably not adequate or appropriate, however, unless it is usually effective in achieving the primary goal of the commitment process, namely, the restoration of the patients to normal mental and behavioral functioning and their return to satisfactory living in the community.*° As a general objective, the overall quality of treat- ment provided in mental health facilities should not differ sub- stantially from the quality of treatment provided in general medical facilities. Of course, even that level of treatment may not be suf- ficient to produce improvement in the mental condition and behavior of all patients. The courts may then require the release of nondangerous patients who are able to care for themselves in the community, as in Donaldson. It is unlikely that the courts will require the release of untreatable patients who are dangerous to others because of inadequate or ineffective treatment.*' Limits on Behavior Modification as Punishment The eighth amendment prohibits cruel and unusual ‘“‘punishment,”’ even when that punishment is disguised or labeled as treatment. The courts look beyond the ‘‘treatment’’ label to examine the actual procedures used, the intent, and the results. ‘‘(T)he mere characterization of an act as ‘treatment’ does not insulate it from eighth amendment scrutiny.’’*? The Supreme Court has noted that treatment must involve more than ‘“‘the hanging of a new sign— reading ‘hospital’—over one wing of the jailhouse.’’** The purpose of punishment is to inflict pain or aversive conse- quences for a disapproved act. Psychological treatment is intended to change future mental or behavioral patterns so that the patient can avoid subsequent aversive consequences in a natural environ- ment. Also, the concept of treatment involves the notion of restora- tion or improvement, while punishment involves restriction or disablement. Punishment is administered for past conduct. ''CONSTITUTIONAL DOCTRINES 11 Treatment is administered for expected future conduct.** (See Appendix B for definitions of terms.) In most circumstances, the difference between punishment and treatment is clear. The forceful confinement of a prisoner in isolation for breaking a prison rule is punishment. The voluntary participation of a prisoner in standard psychotherapy is treatment. In a few instances, punishment, such as the withdrawal of privi- leges, may be used as a part of a larger treatment program. When punishment is used in a behavior modification program, it is applied according to specific principles of learning and in a broader context of positive reinforcements or incentives for alternative behaviors. In general, the difference between punishment and treatment is clear, as measured by the intent of the actors, the procedures used, and the results. In a well-known case, Knecht v. Gillman,*? inmates of the Iowa Security Medical Facility were made to vomit in a “‘therapy”’ program allegedly based upon Pavlovian conditioning. Apomorphine was administered by intramuscular injection to induce vomiting that lasted from 15 minutes to 1 hour. The drug was injected by a nurse for behaviors such as not getting up, giving cigarettes against orders, talking, swearing, or lying. According to the reports of other inmates, injections were sometimes given. There are several obvious problems with this program. The intramuscular injections were unnecessary (oral emetics could have been used), and they were excessively aversive. Effective condi- tioning can often use mildly aversive stimuli. The program was not treatment, or behavior modification, or ‘‘therapy,’’ regardless of the label used by the prison personnel. Effective Pavlovian or classical conditioning requires that the unconditioned (aversive) stimulus follow the behavior by no more than a few seconds (see Appendix B). In this case, the aversive stimuli, injection and vomiting, could occur hours or even days following the prohibited behavior. Data were not available to demonstrate positive results, and the procedure was obviously used in some instances for pur- poses of punishment rather than treatment, e.g., to reduce giving cigarettes against orders. The Eighth Circuit Court correctly con- cluded that this particular use of apomorphine was not a recog- nized and acceptable medical practice.** The court further found that this use of apomorphine without the consent of the inmates constituted cruel and unusual punishment prohibited by the eighth amendment. The court in Knecht, however, explicitly left open the possibility of use of apomorphine with the knowing and intelligent consent of the inmates. In fact, the court established three specific conditions 45 ''12 LEGAL ASPECTS OF ENFORCED TREATMENT under which apomorphine could permissibly be used. These condi- tions are fairly good guidelines for the use of aversive procedures, especially of a medical nature, with prisoners or patients. 1. A written consent must be obtained from the inmate specifying the nature of the treatment, a written descrip- tion of the purpose, risks, and effects of treatment, and advising the inmate of his right to terminate the consent at any time. This consent must include a certification by a physician that the patient has read and understands all of the terms of the consent and that the inmate is mentally competent to understand fully all of the provisions thereof and give his consent thereto. 2. The consent may be revoked at any time after it is given, and if an inmate orally expresses an intention to revoke it to any member of the staff, a revocation form shall be provided for his signature at once. 3. Each apomorphine injection shall be individually author- ized by a doctor and be administered by a doctor or by a nurse. It shall be authorized in each instance only upon information based on the personal observation of a mem- ber of the professional staff. Information from inmates or inmate aides of the observation of behavior in violation of an inmate’s protocol shall not be sufficient to warrant such authorization.*7” In a different case also presumably involving “‘aversive treatment,”’ Mackey v. Procunier,*® a prisoner consented to ‘‘shock treatment”’ but was instead, without his consent, administered succinycholine. This drug, used as a muscle relaxant in electroconvulsive therapy, produces temporary paralysis and respiratory arrest. It is not customarily used with conscious patients because it may produce frightening experiences of drowning or suffocation which the plaintiff in this case experienced. The prisoner further alleged in subsequent memoranda to the court that this was guinea-pig treat- ment, medical experimentation, and that it was deliberately and maliciously inflicted upon him for inappropriate behaviors in the institution. A lower court dismissed the case, but the Ninth Circuit Court reversed the lower court’s decision and ordered further proceedings. The court noted that proof of the prisoner’s conten- tions could “‘raise serious constitutional questions respecting cruel and unusual punishment or inpermissible tinkering with the mental processes.’ *? As in the Knecht case, it should be noted that the prisoner did not consent, the procedure was highly aversive, it was characterized ''CONSTITUTIONAL DOCTRINES 13 as experimental, it did not conform to customary therapeutic practice or theory, and it was used, at least in part, as punishment for prison rule violations. Neither case involved the use of recog- nized aversion therapy procedures for the purpose of treatment or rehabilitation. Thus, Knecht and Mackey do not prohibit the use of recognized aversive behavior modification procedures with offenders when offenders properly consent to these procedures. Knecht explicitly permits mentally competent prisoners to consent to these procedures, even though the procedures are aversive and the consent takes place within a prison context. Persons intending to use aversive conditioning with prisoners or patients should carefully check legal cases, statutes, and State and Federal regulations. Aversive treatment, or even behavior modi- fication using only positive reinforcement, is often erroneously classified in regulations with procedures such as psychosurgery and electroconvulsive shock.*° The law regulating aversive conditioning is more developed with regard to mental patients than prisoners. In Wyatt v. Stickney,*' a Federal district court in Alabama noted that “Patients have a right not to be subjected to treatment procedures such as lobotomy, adversive (sic) reinforcement conditioning or other unusual or hazardous treatment procedures without their express and informed consent after consultation with counsel or interested party of the patient’s choice.”’*? In Wyatt v. Hardin,** this court later set forth detailed conditions for the use of aversive conditioning, including among others the approval of the program by an institutional Human Rights Committee, written recommenda- tion of the program for the particular patient by a mental health professional, written consent, approval of the treatment by the superintendent or medical director of the hospital, and mandatory representation by legal counsel through all of these proceedings. The representation by legal counsel seems unnecessarily cumber- some, although legal counsel or others should be available for consultation to patients. An Ohio statute requires that patients give consent for programs involving aversive stimulae (sic)** and that they have the oppor- tunity to consult with independent specialists and counsel. They also have the right to refuse consent. In addition, ‘‘Aversive stimulae (sic) may not be used unless a patient continues to engage in seriously self-destructive behavior after other forms of therapy have been attempted, and informed, knowing, and intelligent written consent has been obtained from a guardian.’’**° This re- quirement, applicable tc inmates transferred from prisons to public mental hospitals, seems overly restrictive because it limits aversive conditioning to problems of ‘‘self-destructive behavior’’ ''14 LEGAL ASPECTS OF ENFORCED TREATMENT and does not allow such treatment for problems of drug abuse, alcoholism, sexual violence, or physical aggression toward others— problems for which aversive conditioning has been used. Further- more, ‘‘aversive stimulae’’ are not defined. It is not clear, therefore, whether the statute would apply to stimuli as noninvasive as stale cigarette smoke, loud noise, or undesirable music as used in some treatment programs. Notification of a guardian presumes that the patient is mentally incompetent and that a guardian has been appointed. Finally, the statute requires other forms of therapy to be attempted prior to aversive conditioning, in some cases, a useless formality in which ineffective treatment results in a delay of needed treatment.°° This statute is illustrative of overly broad statutes and regulations passed with positive intentions but without adequate consideration of their implementation and consequences. For example, some provisions of a statute to limit psychosurgery in California have been found to be unconstitutional®’ because the statute prohibits mentally competent patients from obtaining psychosurgery and requires the notification of relatives prior to the procedure. The court considered these provisions an invastion of constitutionally protected privacy. A detailed ‘‘Suggested Statute’? for the protection of patient rights has been prepared by the Mental Health Law Project. This draft statute contains a section on “Hazardous Treatment and Treatment Involving Unusual Discomfort.”** While it does not prohibit use of aversive stimuli or substantial deprivations, its intent is to prevent arbitrary, careless, and abusive procedures. A Human Rights Committee must approve behavior therapy involving either aversive stimuli or substantial deprivations. Recommenda- tions for such treatment for a patient must be simultaneously sent to the Human Rights Committee, the patient and his attorney, and his guardian or conservator, if any. Among other requirements, the objective of therapy must be to improve the patient’s mental condi- tion and not primarily to serve the interests or convenience of the treatment staff. (Excerpts from the ‘‘Suggested Statute’? can be found in Appendix C.) The eighth amendment prohibition against cruel and unusual punishments may also set limits on the type and duration of depriva- tions which may be used in behavior modification programs. In some programs (e.g., token economies), patients or prisoners are deprived of privileges such as reading matter, radios, access to a commissary, etc. By appropriate behavior they must then earn tokens that can be used to purchase desired items, services, and privileges. In other programs (e.g., tier systems), patients or ''CONSTITUTIONAL DOCTRINES 15 prisoners are initially placed in situations of considerable depriva- tion. They may have only a small room, restricted visitation privi- ileges, and limited exercise opportunities. Contingent upon ap- propriate behavior, permission is granted to move up a hierarchy of living situations which provide an increasing number of privileges and opportunities. The initial deprivations in token economies and tier systems should not be so severe as to constitute cruel and unusual punishment. Even in the lowest tier, for example, a bed, sanitation facilities, showers, medical care, clothing, and adequate space, food, heat, light, and exercise opportunities must be provided.*? There are also other basic constitutional rights that should not be violated, such as mail privileges (especially com- munication with courts and legal counsel), attendance at religious services (unless prison security is threatened), and privacy.©° Token economies and tier systems have often been challenged on due process grounds. A more extended discussion of these programs can be found in the following section on due process. Due Process The constitutional provision of ‘‘due process of law’’ as found in the fifth and fourteenth amendments has been increasingly applied in the areas of mental health and corrections. Due process is a flexible concept that has its origin in the basic concept of fairness. In Rochin v. California,®! Mr. Justice Frankfurter suggested, ‘“‘Due process of law is a summarized constitutional guarantee or respect for those personal immunities which...are so rooted in the traditions and conscience of our people as to be ranked as fundamental....’’ The Supreme Court found in.)this case that forcefully ‘“‘pumping”’ the stomach of a defendant by giving him an emetic to obtain evidence of the use of a narcotic drug ‘‘shocks the conscience’”’ and would “‘offend hardened sensibilities.’ ®* Although this sense of fairness helps to guide judicial decisionmaking, it can- not be readily reduced to a verbal formula because many cases involve the weighing of competing, valid social claims. Also, what is considered ‘‘fair’’ procedurally or substantively tends to vary over the years. The definition of due process in certain settings, such as prisons, often develops on a case-by-case basis. There are two major aspects of due process: procedural due process and substantive due process. Procedural due process refers to the process by which decisions are made and the relationships of these decisions to the process. The goal is to allow the person whose liberty may be diminished a reasonable ''16 LEGAL ASPECTS OF ENFORCED TREATMENT opportunity to present his view of the matter to an impartial person or group. Substantive due process relates more to the concept of ‘‘justice’’ and what is ‘“‘fair.’”’ Requiring a probationer to donate a pint of blood to the Red Cross as a condition of his probation has been found to be a violation of substantive due process because it does not seem just.°? The distinction between procedural and substantive due process is often unclear. Substan- tive due process has sometimes been characterized as that sense of fairness which is not procedural. Because of its vagueness, sub- stantive due process has varied greatly in its legal respectability and its use by courts. At present, due process considerations— procedural, substantive, and undefined—have an important role in shaping correctional and mental health law. Procedural Due Process Procedural due process requires that persons be given adequate notice of the pending action against them, that they be given an opportunity to be heard, and that other procedural protections be provided, such as the assistance of legal counsel, if the impending deprivation of liberty is great. Within the past decade, the court has considerably expanded procedural requirements for decisions made within institutional settings. How many procedural protec- tions are constitutionally required depends on the particular court’s notion of fairness. In general, the greater the deprivation involved or the more intrusive the treatment, the more procedural safeguards are required. Cases in this area usually do not provide definitive answers to constitutional issues, but they may suggest limits of acceptable practice. A severely depriving change of status, even within a prison, re- quires considerable due process protection. In Wolff v. McDonnell,“ the Supreme Court considered the procedural due process require- ments of disciplinary actions which would result in the loss of good time and possibly placement in solitary confinement. The Court concluded that this kind of deprivation would require: (1) written notice of the violation at least 24 hours in advance of an appearance before an adjustment committee, (2) a written statement of the reasons for disciplinary action taken and the facts relied upon, and (8) an opportunity to call witnesses and present documentary evidence in defense unless that would be unduly disruptive or hazardous to institutional safety. The Court, however, found no constitutional right to confront or cross-examine adverse witnesses or to retain or have appointed legal counsel. In contrast, some Federal and State courts have held that in disciplinary proceedings, ''CONSTITUTIONAL DOCTRINES 17 the prisoner has the right to retain counsel and cross-examine witnesses in his defense. In some jurisdictions, the major procedural requirements suggested in Wolff are for decisions involving major deprivations of liberty and are made prior to the deprivation of rights or privileges such as association with other prisoners, visita- tion, receiving and sending mail, and attendance at religious services. The Wolff decision occurred in 1974. Later that year, a lower court in Missouri cited Wolff in evaluating the procedural require- ments for the transfer of Federal prisoners into a severely depriving treatment program called S.T.A.R.T. (Special Treatment and Rehabilitation Program. )° For this program inmates were selected whose repeated, aggressive acts within prison resulted in their frequent placement in segrega- tion. Transfer and participation in the S.T.A.R.T. program were involuntary. No consent was obtained. The program was designed with a tier system in which there were several different levels of increasing privileges and responsibilities. The initial level in which the inmates were placed allowed the fewest privileges. The inmates were then to “work” their way up through the several levels by appropriate behavior. Those at the lowest Orientation Level were continuously observed and their behavior monitored by the staff. At this level, inmates were not allowed reading material other than a Bible and a newspaper and were not permitted to listen to a radio or view television. No inmates in the program were allowed to attend religious services. Also at the Orientation Level, inmates were not able to earn statutory good time.®° According to the court, in the case of Clonce v. Richardson, the goal of S.T.A.R.T. was not to develop behavior that would help the inmate to con- form to society at large but to develop behavior appropriate for confinement in a regular penal institution.®’ Overall, the program appears not to have been particularly well designed or implemented according to sound behavioral principles.°* The court concluded in its order that ‘“‘in the absence of notice, charges, and hearing, the selection and forceable transfer of a prisoner into the S.T.A.R.T. program violated the constitutional rights of the prisoner in denying him due process.’’®’ The court also noted that ‘‘an appropriate hearing is required before transfer into any new program generally comparable to S.T.A.R.T.’’”° On the other hand, the court did not reach the conclusion that behavior modification programs would per se conflict with consti- tutional rights. The court encouraged the Bureau of Prisons to develop “innovative, humane, and effective correctional programs” and noted that there had been a ‘‘great deal of uninformed and inaccurate publicity”? about the S.T.A.R.T. program.” ''18 LEGAL ASPECTS OF ENFORCED TREATMENT It is likely that the notions of due process found in. Wolff and Clonce are widely applicable to behavior modification programs in institutional settings. Several factors should be noted. Participation in S.T.A.R.T. was involuntary. No consent from the participants was obtained. The deprivations at the initial level of entry into the program were unusually severe and possibly unconstitutional.’ The program lacked well-defined results and a clear integration of sound theory with procedure. Finally, the goal of the program was to improve conduct in a prison setting rather than in the commu- nity. Prudent administrators or directors of treatment programs with prisoners or patients should attempt to avoid these problems. The procedures required for administrative decisionmaking in an institutional setting are not as elaborate as those required to reach decisions in court. The following questions have been suggested by Kerper and Kerper”® as a guide to full due process when a prisoner suffers a ‘‘grievous loss,’’ as when placed in solitary confinement or loses good time credits. 1. Are the rules and regulations upon which punishment may be based clear and explicit? a. Do they adequately inform the inmate as to what conduct is forbidden? b. Do they inform him of the punishments which may be inflicted upon him for their breach? 2. Have the rules and regulations been put into the hands of the prisoners? a. Has care been taken that illiterate inmates have re- ceived knowledge of the rules? 83. Has a violation of the rules or regulations actually occurred? a. Is there sufficient factual evidence to show that the inmate breached the rules? b. Was the inmate given written notice of the charges? If he is unable to read, were the charges explained to him? c. Did the inmate have a right to confront his accusers? d. Did the inmate have the right to answer the charges? 4. Was a determination of the violation made by an impartial tribunal? a. Was the accuser allowed to participate in the decision? b. Was the inmate allowed representation by counsel or counsel substitute? c. Was there a written decision which set forth the grounds for the decision and the necessity for the imposition of the punishment inflicted? ''CONSTITUTIONAL DOCTRINES 19 5. Are there procedures for appeal? Was the inmate informed of these? The requirement that rules, regulations, and penalties be explicit enough to inform persons as to what is expected has sometimes been considered an aspect of substantive due process and sometimes an aspect of procedural due process. Regardless of the legal classifi- cation, the rules are to be definite and clear enough so that a person of ordinary intelligence can reasonably understand what behavior is prohibited. Terms such as “misbehavior,” “agitation,” and “poor conduct” have been found to be too vague to give adequate warning to inmates or patients.”* How extensive due process protections must be prior to the involuntary placement of persons into treatment programs is not clear. The first step in initiating such a program would probably be an attempt to obtain the informed voluntary consent of the person to participate in the program. If that is not possible, the proposed treatment should be carefully evaluated to see that it is well designed to achieve a legitimate or compelling State interest, such as the successful adjustment of the person in the community. (As previ- ously noted, treatment to help an inmate adjust to the prison environment is not a sufficiently compelling State interest to permit the imposition of treatment upon him without his consent.) If some deprivations must be imposed upon the person during treatment, procedural due process requirements should be con- sidered. Basically, the procedures required by due process should be commensurate with the reduction of liberty (or rights, privileges, property) as viewed in terms of fairness. Thus, placement in condi- tions of solitary confinement for a few days or longer would require a notice to the inmate, a written statement of the reasons, and a hearing as outlined in Wolff. However, a lesser deprivation such as a few hours of isolation would probably not require procedures this complex, particularly in emergency situations.”* The trend toward increasing procedural safeguards for prisoners has slowed considerably in the past few years. The law is unclear as to what deprivations may be imposed without notice and a hearing. In Meachum v. Fano,”* the Supreme Court held that hearings were not necessary prior to the transfer of an inmate from one State institution to another institution, unless such a hearing was granted by State law (or perhaps customary practice in the State). The hearing was not necessary, even though there had been a “‘grievous loss” for the inmate because there was no “‘entitlement”’ (lawfully guaranteed right) created by the Constitution or State law. In Meachum, there was no State statute, regulation, or practice that ''20 LEGAL ASPECTS OF ENFORCED TREATMENT required hearings prior to transfer nor does the Constitution guar- antee such a right. Thus, because there was no deprivation of a right or entitlement, there was no need for a due process hearing. Older decisions regarding behavior modification programs should be viewed in light of currently developing law. In summary, an involuntary behavior modification program that severely limited a patient’s or prisoner’s access to reading material, correspondence, or visitors requires, at minimum, notice and a hearing’’ because there is a deprivation of rights guaranteed by the Constitution as well as by most State statutes. On the other hand, the deprivation of the privilege to smoke, visit a commissary, or watch television requires minimal, if any, due process procedures, unless hearings are required by State law or by customary practice.”® Likewise, the deprivation of standard institutional food and its replacement by bland and equally or more nutritious food probably require minimal, if any, due process procedures. (Care should be taken in modifying food to see that the diet does not impose upon religious freedoms.) Even when due process procedures are not legally required for deprivations imposed by treatment, an informal discussion with the person about the program and the reasons for it is desirable. At this discussion, an unbiased person, perhaps a member of a human rights committee, can be present to hear the reasons both for and against the program. If the proposed treatment is hazardous or involves unusual discomfort or substantial deprivation, the proce- dures and standards suggested in Appendix C may be followed. Substantive Due Process The essence of substantive due process is a sense of fairness. Even with elaborate due process procedures, courts often do not permit the involuntary deprivation of certain fundamental rights, if those rights are constitutionally guaranteed.” For example, ade- quate heat, light, food, clothing, bedding, space, medical care, and sanitation facilities must be provided. Even with notice and a formal evidentiary hearing, an institution is not permitted to pump a patient’s stomach to determine the theft of food. Nor may an institution require the unwilling public confession of sexual discretions. This action would constitute an unjustified interference with fundamental liberties related to the security of one’s own body and thoughts, leading to further issues of cruel and unusual punishment and the invasion of privacy. Substantive due process is an elastic concept, and therefore, it is sometimes difficult to determine ahead of time what rights will be ''CONSTITUTIONAL DOCTRINES 21 considered constitutionally guaranteed. The courts often look closely at the particular fact situation. Although limitations may be placed upon visitation, the complete denial of visitation with family members is probably not allowed. The censorship or denial of all written communication, particularly with legal counsel and courts, is not permitted. Written correspondence may, however, be permis- sibly restricted if that correspondence consists largely or com- pletely of threats to addressees. In determining what substantive due process requires, opinions change over time. One court liberally applying due concept notions has quoted from George Bernard Shaw’s famous book, The Crime of Imprisonment: Judges spend their lives consigning their fellow creatures to prison; and when some whisper reaches them that prisons are horribly cruel and destructive places, and that no creature fit to live should be sent there, they only remark calmly that prisons are not meant to be comfortable; which is no doubt the consideration that reconciled Pontius Pilate to the practice of crucifixion.®® Using substantive due process reasoning, some courts have found a right to treatment or rehabilitation for prisoners.*! Other courts have not found such a right,®? even though a right to treatment for mental patients** and juveniles** is emerging. A United States district court has held that due process requires that incarcerated juveniles be provided with treatment.®* In con- sidering the adequacy of the treatment involved, the court in this case, Morgan v. Sproat, examined the Progressive Phase Program at the Oakley Training School in Mississippi. In this program, a tier system was established in which students were moved through a sequence of cottages until they were ready for parole. Participation was involuntary without consent. Progress from one phase to another was based upon grades given by a counselor. These grades were based primarily upon ‘‘white slips” indicating ‘‘unacceptable”’ behavior. All employees at the school were to report unacceptable behavior on these white slips. Unacceptable behavior was not clearly defined. Thus, white slips were given to the youths for behaviors as innocuous as getting a drink of water without permis- sion and sleeping at 4:30 in the afternoon. The program was incorrectly labeled as a behavior modification program. According to the court: The progressive phase program is supposed to be based on behavior modification techniques. However, the behavior modification specialists who evaluated the phase program found that it violated all of the basic principles of behavior ''22 LEGAL ASPECTS OF ENFORCED TREATMENT modification. They noted in particular the lack of consistency, the failure to specify concrete and limited goals for each student, the absence of sufficient positive incentives to gen- erate appropriate behavior, the long delay in giving any rewards for achievement, and the placement of the greatest rewards at the end of a student’s stay rather than at the beginning. The experts were particularly critical of the fact that students’ progress through the phase system is based entirely on their avoiding unacceptable behavior, i.e., staying out of trouble. They concluded, that as a result of the program’s negative focus, it inhibits rehabilitation.*® The court concluded that the Progressive Phase Program did not provide minimally adequate treatment as constitutionally required. The school was enjoined from the continued use of the program and was required to submit an alternate plan for determining the progress of the students through the school to readiness for parole or release. Some problems with this program are fairly clear. It was poorly designed according to behavioral principles. It was ineffective. It was incorrectly labeled. It was presented as treatment, although its primary goal appears to have been the institutional management of youths. Finally, the progress toward parole or release was based upon a concept of “unacceptable behavior”’ that the staff was not able to use with consistency. As previously noted in the discussion of procedural due process,®’ vague terms such as “misbehavior” or ‘‘*noor conduct”’ have been found legally inadequate. Rules, whether for disciplinary purposes or for the evaluation of progress through a program leading to release, should be clear enough so that the affected persons can know what behavior is prohibited or expected. The Morgan court did not find that the program violated prohi- bitions against cruel or unusual punishment. Nor did the court determine the legal status of behavior modification programs as treatment. The court observed, ‘“‘Because the phase program at OTS (Oakley Training School) fails to meet even the basic require- ments for a behavior modification program, the Court has no occasion to decide in the abstract whether behavior modification programs can satisfy the Constitutional right to treatment for juvenile offenders.” ®* A commonly raised concern about tier systems and token economies is the deprivations which may be initially used to moti- vate people to move up through the system or to work for tokens. As Wexler has noted: In many token economies and tier systems, food, beds, privacy, and ground privileges are used as ‘“‘reinforcers’’ which are ''CONSTITUTIONAL DOCTRINES 23 available only if earned by engaging in appropriate behavior. Yet, decisions defining rights of patients, such as Wyatt v. Stickey, are increasingly suggesting that patients are constitu- tionally entitled to such items and events as part-and-parcel of a humane psychological environment. Considerable doubt is thus cast on the legality of the continued use of such contingently available reinforcers. ®® Sometimes privileges may be dispensed or withheld by admin- istrative decision, but certain basic rights may not be withheld. Because of the tendency for persons to claim many desirable opportunities and situations as “‘rights,”’ it is useful to examine briefly the concepts of privilege and right. As generally used in legal discussions, a right refers to a power or capacity granted by the State to a person, which allows that person to act or to control the actions of others. A right often imposes a duty upon other people to act or to refrain from acting.?® People have a right to the security of their homes which imposes upon others the duty of refraining from entering unless invited. A privilege, unlike a right, does not impose a duty upon others. People have a right to free speech (within limits); they do not have a right to free calliope playing. People have the privilege of earning a living; they do not have the right to an income without working. Driving is a marginal situation; in some States, it is re- garded as a privilege and in others as a right. In an institutional setting, a personal television set, attendance at dances, and smoking are usually considered privileges rather than rights.?! Some courts enforce an “‘entitlement’’ which is, essentially, a right or privilege that is customarily allowed without prior express statutory, administrative, or judicial recognition. This distinction between rights and privileges has sometimes been used to determine which items or activities may be withheld until they can be earned or purchased by tokens.?? Essentially, privileges may be withheld (following adequate due process procedures), but a basic right may not be withheld unless the person voluntarily waives this right. The privilege of visiting a commissary for snacks may be withheld by administrative decision for treatment purposes until it is “‘earned.’’ On the other hand, the withholding of meals is generally not permissible to motivate patients or prisoners, except perhaps in the rare instance of a severely disturbed patient with whom food seems the only rea- sonable reinforcer. Even then, the deprivation has to be brief and accompanied by stringent due process safeguards. The right to attend religious services may not be made contingent upon earning ''24 LEGAL ASPECTS OF ENFORCED TREATMENT a certain number of points or tokens, because freedom of religion is constitutionally guaranteed. There has been considerable discussion about which items and activities are to be considered basic, constitutionally guaranteed rights and those which are to be considered privileges (or “‘con- tingent rights”). Professional opinions differ and legal decisions vary from jurisdiction to jurisdiction. This situation has sometimes made it difficult for treatment personnel to design programs. Wyatt v. Stickney’? has provided perhaps the most detailed and extensive specification of rights as “minimum constitutional standards.”’ The following list is a summary of some rights enumerated in Wyatt. Patients must be permitted to: Visit and make telephone calls (similar to the right of patients at other public hospitals) Send sealed mail Wear own clothes Attend religious services Interact with the opposite sex (with supervision) Avoid forced labor Take a shower and use the toilet in privacy Use a day-room area with reading lamps, television, and other recreational facilities Have a comfortable bed, a closet or locker, a chair, and a bedside table Have frequent changes of bedding and other linen Have meals in dining rooms (that provide at minimum the Recommended Daily Dietary Allowances as developed by the National Academy of Sciences) Have an individualized treatment plan Have appropriate treatment for mental disorders and physical illnesses Have transitional treatment and care when released from the hospital Have a humane psychological and physical environment that is comfortable and safe Four years later, this same court established similar but less extensive ‘‘minimal constitutional standards” for inmates in the Alabama penal system in Pugh v. Locke.®* The following list summarizes some of the rights. The inmates must be permitted to: Send or receive an unlimited number of letters (with postage and paper supplied by the institution for five letters per week) ''CONSTITUTIONAL DOCTRINES 25 Receive visitors on at least a weekly basis (with reasonable time and space for each visit) Participate in a meaningful job based on abilities and interests and according to institutional needs Have toothbrushes, toothpaste, shaving cream, razors, razor blades, soap, shampoo, and combs without charge®® Have adequate clean clothing Have a storage locker with a lock Have clean bed linen and towels weekly Have access to household cleaning supplies Have a bed, clean mattress, and blankets Have a minimum of 60 square feet of living space Have three wholesome and nutritious meals per day (served with proper eating and drinking utensils) Have a special diet if required for reasons of health or religion Have the opportunity to participate in educational, voca- tional, and recreational programs Have the opportunity to participate in a transitional program designed to aid in re-entry into society Be released from voluntary segregation immediately upon request Be transferred if mental health care is required at another institution (with some care provided within the prison) Be protected from violence?® Although these lists of rights are extensive, there are still many options for designing treatment programs in which better living conditions and special opportunities may be earned. If, neverthe- less, a basic right needs to be temporarily withheld to motivate a patient after other treatment attempts have failed, a court or an independent human rights committee may provide the necessary approval. Budd and Baer have discussed this possibility: Perhaps, if courts were clearly informed of the purpose and rationale for a contingent reward system, and the manner in which it functioned, they might be willing to allow basic privileges to be provided contingently when needed to effect rehabilitative behavior patterns. Since treatment is, according to Wyatt and other cases, the primary goal of confinement, courts may feel justified in authorizing such restrictions of residents’ rights in order to further these goals. The Wyatt court and others set up permanent human rights committees to review treatment programs and research proposals; an advocacy committee of this nature could well be the ap- propriate body to provide approval in special cases for the use of basic privileges in contingency systems. 305-654 0 - 79 - 3 ''26 LEGAL ASPECTS OF ENFORCED TREATMENT In presenting a rationale for the contingent delivery of basic privileges, it might be helpful to explain that the actual deprivation of privileges in an effective contingency system is minimal, rather, it is the timing of the deprivation that is important. After a brief period of experiencing the denial of activities contingent on not engaging in acceptable behavior, subjects adjust to the contingencies and consistently complete the behaviors required to earn their privileges. If a contingency system were not operating effectively —that is, if after a short trial period, the subjects were not performing the target behaviors sufficiently to contact the positive consequences— system administrators would continue carefully monitoring the behavior and would revise the system to make it more effective. Thus, properly managed contingent reward systems would insure the subjects’ access to privileges while supporting positive, therapeutic behavior patterns.’ Although the discussion here has focused upon the administra- tive withholding of privileges (or contingent rights) without the agreement of the patient or prisoner, it is possible for a person to waive constitutional rights. As previously noted, people have a right to be secure in their homes, but they may waive that right by inviting others into their homes. If they invite the police, they have probably also waived rights related to search and seizure. People frequently waive rights, e.g., the right to a hearing on a traffic ticket. Although not all rights may be waived,’* people often are permitted to waive important rights, such as the right to legal counsel at a criminal trial. At minimum, waivers should be made voluntarily with a clear understanding of the right being waived and the possible consequences. Presumably, some of the rights established in Wyatt, Pugh, and similar cases may be volun- tarily waived by a person in exchange for participation in a treatment program. Care should be taken not to use token economies to motivate patients or prisoners to do nontherapeutic, noncompensated work. Institutional economy or maintenance is not a sufficient reason for the use of such a program.®? A token economy may, however, be used to develop vocational or personal skills that could be subsequently useful to the individual in the community.'°° This discussion has focused upon substantive due process rights. These constitutional rights do not extend to every situation or practice that is socially or personally undesirable. Wexler’®’ has reported a novel attempt by one staff person to meet the Wyatt requirement of nutritious meals and still motivate patients in a token economy. He put the meals in a blender before serving them. This is unpleasant. It may not be illegal. Alternatives to such ''CONSTITUTIONAL DOCTRINES 27 “mush meals” are, of course, desirable. But not every administra- tive indiscretion, error, or poor judgment, even when in bad taste, is a constitutional violation. ‘‘A practice may be undesirable and condemned but still not be so abusive as to violate a constitutional right, °°! Token economies and tier systems probably can be effective in the majority of cases by the use of reinforcers considerably above constitutionally guaranteed rights. Although food may not be with- held, the privilege of being first in line may nevertheless be earned. !°? Individualized reinforcers, e.g., taking photographs, caring for a pet, and special visitation privileges, may be powerful reinforcers. There does not need to be conflict between the use of token economies or tier systems and the protection of constitutional rights. Equal Protection The fourteenth amendment does not allow the Federal Govern- ment or States to ‘deny to any person within its jurisdiction the equal protection of the laws.” This phrase, known as the equal protection clause, prohibits unfair discrimination among persons. Similar persons in similar circumstances are to be dealt with in a similar manner. The Federal Government, States, and their admin- istrative agencies may, however, make reasonable discriminations among persons, if the discriminations are based upon fact and related to a legitimate purpose. Historically, the equal protection clause has been important in advancing the status of minorities and women. In the area of mental health, equal protection has often been used to challenge the involuntary commitment of persons alleged to be mentally ill and dangerous. In Baxstrom v. Herold,'!°* Johnnie Baxstrom was committed near the end of his prison sentence to a mental hospital after a brief hearing in a judge’s chambers. Other persons in New York State who were not prisoners were granted the right by statute of having a jury trial on the issue of their commitability to a hospital. Baxstrom argued that he was unfairly discriminated against because he was a prisoner. The Supreme Court agreed. It held that equal protection required Baxstrom to be allowed to have a jury as were other potential patients. The “capriciousness of the classification” used by the State to dif- ferentiate prisoners from other citizens was not allowed. The Court concluded: Classification of mentally ill persons as either insane or dan- gerously insane of course may be a reasonable distinction for ''28 LEGAL ASPECTS OF ENFORCED TREATMENT purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all. For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for dis- tinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.!°° Baxstrom has had substantial impact also upon the involuntary transfer of prisoners to mental hospitals before the completion of their prison sentences.!°° Wexler has summarized the current situation: The courts have also held that the involuntary transfer of a prisoner to a mental hospital must conform to civil commit- ment safeguards if, because of such factors as parole board policies against releasing prisoner patients or the unavailability of good time allowances to prisoners in mental hospitals, mental patient status is likely to lead to a longer period of confinement than would be the case if the prisoner remained in a correctional institution. Even if parole board and good time practices were such that a prisoner would not be prej- udiced time-wise by an involuntary transfer to a mental hospital, there is a substantial argument, that, because of the additional stigma attached to mental hospitalization, the different conditions of confinement entailed in hospitaliza- tion, and the drastic consequences of mistaken transfer, the transfer should not be viewed as simply an administrative placement, and the civil commitment safeguards should once again be constitutionally required.!°’ As previously noted, the transfer of a prisoner within a prison setting to a substantially more restrictive or aversive environment may require (on due process grounds) at least prior notice to the person and a hearing.'°* The State may make distinctions among categories of prisoners or patients if there is a rational basis for these distinctions. In Buchanan v. State,'°? the defendant pleaded guilty to a sex offense and was denied a jury trial on the issue of his indeterminate com- mitment as a sex offender. His challenge to the commitment was on both due process and equal protection grounds. From an equal protection viewpoint, he argued that because mentally ill persons have the right to a jury trial prior to commitment, sex offenders should have the same right. The court disagreed. It noted several distinctions between mentally ill persons and sex offenders related to confinement. The most important distinction according to the court was that a “sexual deviate is confined ''CONSTITUTIONAL DOCTRINES 29 because he is dangerous to the public and the mentally ill, infirm, or deficient person is confined primarily for his own benefit and treatment.”''® Although the court’s reasoning might now be challenged,''' the decision illustrates the need for a valid classifica- tion scheme to be related to a legitimate purpose, i.e., protection of the public or treatment. The State should be able to show that the classification is necessary to further a legitimate State interest, such as public protection, treatment, or rehabilitation. Courts are often reluctant to find equal protection violations if there appears to be some potentially reasonable basis for the State’s classification scheme. In contrast to Buchanan, the plain- tiffs in Vann v. Scott''? argued that they, as runaway youths, should not be treated the same as youths who have committed serious offenses. By being labeled as delinquents, they may be stigmatized and incarcerated for nothing more than running away from sur- roundings which were undesirable or even intolerable. There should be, so they asserted, at least a subcategory for “‘less blame- worthy delinquents’ such as themselves. Although the court agreed that as a matter of policy this might be appropriate, there was no equal protection or legal violation. ‘“‘Tragic enough the plight of the chronic runaway may be, we cannot say that it is irrational to conclude that the same kind of correctional treatment may be appropriate for him as for another youth who has already engaged in more serious antisocial conduct.” ''? Even when the classificatory scheme is sound, care should be taken to see that the person in fact belongs within the assigned category. A person may not, for example, be committed to a mental hospital as a chronic schizo- phrenic when the only evidence of mental illness is a deviant lifestyle as a ‘‘typical hippie.’’!!4 Traditionally, the courts have been reluctant to intervene on equal protection grounds with regard to the types of treatment appropriate for offenders. Nevertheless, after commitment, assign- ment to treatment programs should not be arbitrary or capricious. The assignment of a group for special treatment that was composed primarily or entirely of minority persons, for example, may be considered a “‘suspect classification.” Although there may be an acceptable reason for such selection, it is subject to strict judicial scrutiny. One of the famous equal protection cases, Skinner v. Oklahoma,}'5 involved the treatment of offenders. The offenders were sup- posedly habitual offenders, and the treatment was sterilization. The Oklahoma statute permitted the sterilization of felons who repeatedly stole property but not felons who embezzled property. The Supreme Court decision in this case in 1942 prohibited the ''30 LEGAL ASPECTS OF ENFORCED TREATMENT sterilization on equal protection grounds. The statute was seen as drawing a conspicuously artificial line between intrinsically similar offenders. Less successfully, relators in People ex rel. Stutz v. Conboy contended that they were placed in a newly initiated and poorly organized program for drug addiction. They claimed a violation of equal protection because there was no standard for the classifica- tion of drug addicts. The inmates were assigned to one of three groups according to their achievement in the program and their likelihood of release. As in a tier system, the inmates moved up through the groups until they achieved release. Therapy consisted largely of group meetings held three times per week led by cor- rection officers trained by an independent community group, Reality House, Inc. The court observed: The contract between N.A.C.C. (Narcotics Addiction Control Commission) and the Department of Correction provides for classification into three groups. The contract even spelis out the degree of achievement required for classification. These degrees are somewhat vague and they overlap. This does not deprive relators (inmates) of their rights. The question of whether relators belong to an A group or a C group is a matter for the exercise by N.A.C.C. of its expertise administered for it by Reality House, Inc. The courts must let the administra- tive agency with expertise work out the specifics of the program on the basis of its experience and should not interfere to scuttle the program on so tenuous a basis.'!” 116 Mental health or correctional agencies are assumed to have the expertise necessary to develop appropriate categories of treatment and to assign persons in a proper manner to these treatment categories.''® This appears to be particularly true when the treat- ment is for an offense and there appears to be no generally accepted alternative treatment categories or methods as in the treatment of narcotic addiction.'!? In People ex rel. Blunt v. Narcotic Addiction Control Com- mission,'®° the court considered an experimental drug treatment program at Rikers Island involving self-help group meetings. The main purpose of the meetings was to motivate the prisoner to break his habit, change his way of life, and accept rehabilitation.’?! In these meetings the prisoner was encouraged to talk about his problems. Upon demonstrating a sincere desire for rehabilitation, the prisoner was then sent to Harts Island for the second phase of the program. This phase involved communal living and professional psychiatric or psychological therapy. In the final phase of the program, the prisoner was conditionally released to a halfway house ''CONSTITUTIONAL DOCTRINES 31 and continued treatment until certified as rehabilitated. Although the program did not seem to be working well, the court commented: “The experimental nature of this program is obvious, and trial and error must be permitted if an effective and efficient program is to be evolved.’’!?? In Nelson v. Heyne,'*? a United States district court briefly examined the Quay Classification System. This system uses standardized tests to identify four personality and behavior types. Although the court noted that the implementation of the program fell far short of its goals, it did not find an equal protection or other constitutional violation by using this system for classification. It appears that courts may allow States and administrative agencies considerable leeway in developing new programs for offenders if challenged on equal protection grounds. Privacy The right to privacy is not specifically enumerated in the Bill of Rights or other amendments; it has emerged as a concept from Supreme Court decisions. In the famous case of Griswald v. Connecticut,'?* a case dealing with the regulation of contraceptives by the State, Mr. Justice Douglas commented, “[S] pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. ... Various guarantees create zones of privacy.’’!?5 These “zones of privacy” protect, for example, the confidentiality of membership in organizations, the right of parents to educate their children in a school of their choice, and the right to have the marital bedroom free from search by the police.'?° Other zones of privacy are in the process of being defined and classified. Courts have prevented electronic eavesdropping,'*’ prohibited the trailing of a person,'”® and allowed the possession of obscene material!?? on the basis of privacy. On the other hand, the concept of privacy has not been successfully invoked to protect homosexual relationships between prisoners,'*° smoking marijuana,'*! or the inspection of bank records in the event of a criminal prosecution.'*? There are at least two broad aspects of privacy: One is the protection of information related to one’s behavior and ideas, and the other is the protection of one’s physical and mental integrity. The informational aspect of privacy was emphasized in a well- known definition of privacy by Ruebhausen and Brim: ‘The essence of privacy is no more, and certainly no less, then the freedom of the individual to pick and choose for himself the ''32 LEGAL ASPECTS OF ENFORCED TREATMENT time and circumstances under which, and most importantly, the extent to which, his attitudes, beliefs, behavior, and opinions are to be shared with or withheld from others.’’'*? That aspect of privacy which protects physical and mental security was well expressed by Mr. Justice Brandeis in his famous dissent in Olmstead v. United States.'** In his opinion: The makers of our Constitution undertook to secure condi- tions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure, and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They con- ferred, as against the Government, the right to be let alone— the most comprehensive of rights and the right most valued by civilized men.'35 The concern of Mr. Justice Brandeis about privacy probably stemmed from an incident in which a newspaper discussed the social activities of some friends of his, Mr. and Mrs. Samuel Warren. Later, Mr. Warren and he wrote an often quoted article, ‘“‘The Right to Privacy.’’!*° In it, they asserted that there was a right simply “to be left alone.”!*” That was over 75 years ago. Their idea has gradually found increasingly diverse application. In 1973, the Supreme Court dealt with the right of a pregnant woman to have an abortion prohibited by State law. The Supreme Court in this case, Roe v. Wade,'** concluded that an abortion should be allowed within the first trimester of pregnancy. A portion of its reasoning was based upon a protection of the woman’s mental integrity. Caring for an unwanted child can strain the woman’s mental (as well as physical) health and can be psycholog- ically stressful. There is also the stigma of unwed motherhood.'*? Generally, the interests of mental patients have been better protected by the concept of privacy than the interests of prisoners. The identity of patients or potential patients is fairly well safe- guarded. In one case, a law professor and two research assistants were not permitted to examine 189 randomly selected superior court mental illness files for research purposes.'*° In asplit decision, the Washington Supreme Court set aside a lower court order per- mitting the inspection of the files. A statute prohibited inspection of the files but allowed certain exceptions. Research was not an expressly stated exception. In another case involving patient identity, a well-known docu- mentary movie producer made films of patients at a security hospital.'*! The producer agreed to protect the rights of the patients ''CONSTITUTIONAL DOCTRINES 33 and to obtain written releases. The superintendent of the hospital understood that the film would be noncommercial. In this case, Commonwealth v. Wiseman, the Massachusetts Supreme Judicial Court concluded that the producer had not fulfilled his contractual obligation to protect the privacy of the patients. Releases were not obtained from many of the patients shown in the film, and many patients could be clearly recognized in the film. Furthermore, the producer attempted to distribute the film commercially. The court prohibited commercial showings of the film, but did permit showings to professionals and students in mental health fields. In Wyatt, the court simply stated, “Patients have a right to privacy and dignity.”'*? The court then established detailed standards for the hospital, including the right to send sealed mail, to wear personal clothing, and to interact with members of the opposite sex with supervision. Physical facilities were required to include screens or curtains to ensure privacy within the resident unit for each patient. Courts generally agree that telephone con- versations by patients to persons outside of the hospital, par- ticularly to attorneys, should not be monitored by the hospital. !43 Some exceptions may be allowed if the patient is clearly threatening others or making plans for dangerous acts. Prisoners have traditionally had fewer rights to privacy than patients. Prisoners are customarily carefully observed and their behavior monitored. In a case dealing with the interception of a conversation in a jail visiting room, the Supreme Court noted that a jail does not share the attributes of privacy of a home, an automo- bile, or a hotel room, and that official surveillance has traditionally been allowed.!*4 One court found no invasion of privacy from the secret filming of a prisoner in a parole hearing.'** There was, however, no commercial distribution of the film and no breach of agreement with authorities or prisoners with regard to consent or the protec- tion of prisoners’ rights as occurred in the Wiseman case. Under Wiseman’s conditions, the court would probably have found a viola- tion of privacy. The interception of conversations should serve a legitimate State interest. Offenders, as a general rule, have had only limited rights of privacy within the zone of their offense.'*° Some prisoners have claimed that the absence of conjugal visits deprives them of their right to marital privacy. The courts have disagreed.'*” But, there has currently been some increasing recogni- tion of the need of prisoners for some privacy as balanced against the needs of prison security. In United States ex rel. Wolfish v. Levi,'*® a United States district court expressed concern for inmates’ dignity and privacy. The court prohibited entry into the ''34 LEGAL ASPECTS OF ENFORCED TREATMENT rooms or bathroom facilities by correctional officers of the opposite sex unless there was sufficient warning or an “emergent necessity” that would justify the entry. One court has commented, “Treatment that degrades the inmate, invades his privacy, and frustrates the ability to choose pursuits through which he can manifest himself and gain self-respect erodes the very foundations upon which he can prepare for a socially useful life.”’**° Limitations upon therapy because of a right to privacy have found expression in Mackey v. Procunier'®® and Kaimowitz v. Michigan Department of Mental Health.'’' Both of these cases discussed the mental aspects of privacy. In Mackey, a paralyzing drug that stopped breathing was used in an aversive conditioning program. Without reaching a conclusion, the court indicated that this enforced treatment without consent could raise questions concerning cruel and unusual punishment or “impermissible tinkering with the mental processes.’’'®? More forcefully, and somewhat less rationally, the court in Kaimowitz argued, “Intrusion into one’s intellect, when one is involuntarily detained and subject to the control of institutional authorities, is an intrusion into one’s constitutionally protected right of privacy. If one is not protected in his thoughts, behavior, personality and identity, then the right of privacy becomes meaningless.”'S*? The argument is too broad. Intrusion into one’s intellect is routinely allowed in institutional settings in the form of education,'®* group therapy, and the general milieu of the institution. To the extent that rehabilitation or specific deterrence is an institutional goal or State interest, some intrusion (or at least attempted modification) of intellect is usually permitted. Further- more, contrary to the Kaimowitz assertion, behavior is often not protected under the rubric of privacy, even though the thought about the behavior may be. For example, although one may be able to view pictures of rape in the privacy of one’s home, one is not free to rape. One may view pictures of physical violence, but one is not permitted to attack others. “John Doe,” the primary patient in the Kaimowitz case, had been indicted, in part, on charges of rape and murder.'®* In situations where a substantial likelihood of future dangerous conduct is established, it is a difficult policy question as to whose privacy (including physical and mental integrity) is to be most protected—the potential offender or the potential victim. Surely, there are major exceptions to the notion that privacy protects without limit the behavior of offenders. A person’s privacy may be limited when there is a compelling State interest involved. As in Roe, the State allowed abortion in the first trimester on the basis of privacy, but in the third trimester ''CONSTITUTIONAL DOCTRINES 35 the State might prohibit abortion because of the State interest in preserving the life of a viable fetus. In this connection, Gobert has reasoned, “[If] the preservation of potential human life is a com- pelling State interest, then a fortiori, the preservation of existing life and liberty from future criminal actions, the professed goal of psychosurgery and conditioning programs, would also appear to be compelling State interests.”'*° Concomitantly, with a compelling State interest, there has to be a close rational relationship between the State’s interest and the State’s action that intruded upon or limited inmates’ privacy. In order to impose treatment, the effec- tiveness of the program would have to be demonstrated or be reasonably probable in light of the effectiveness of alternate programs.'57 There must be, of course, limits set upon the State’s power to make therapeutic incursions upon privacy. As this writer has previously suggested: To help set limits, one might use an analogy to the doctrine of implied consent, whereby the criminal act itself gives a specified group of persons a privilege to inquire into certain matters. For example, reckless driving and a_ resulting accident ...may give implied consent for the police to make blood-alcohol tests. So also, when an offender invades the zone of privacy of another, he may give implied consent for limited incursions upon a related zone of his own privacy. Thus, in the treatment of an aggressive offender, inquiry and treatment in regard to aggressive acts and fantasies would seem quite appropriate. Inquiry into, and the regulation of, the offender’s financial matters might place some burden of explanation upon the therapist, which, of course, the therapist might meet by showing that the offender’s aggression usually resulted from disputes over financial obligations.'!** In evaluating claims of privacy by offenders, the courts are often faced with the need to balance the interest of the offender against the interest of the State. In such a situation, the right to privacy— the right ‘“‘to be left alone’’—is a reciprocal right. The offender’s right to be left alone is contingent upon his recognition of the right of others to be left alone. Miscellaneous Doctrines The first amendment prevents Congress from abridging the freedom of speech and assembly and prohibiting the exercise of religion. These constraints upon Congress are applied through the ''36 LEGAL ASPECTS OF ENFORCED TREATMENT fourteenth amendment to State legislatures and regulatory agencies. There has been much litigation with regard to the first amendment rights of patients and prisoners in general, but very little litigation with regard to first amendment limitations upon treatment per se. The constitutional limitations upon treatment must be inferred from rights more generally protected in mental hospital and prison contexts. As with other constitutional rights, mental patients usually have an equivalent or greater range of first amendment rights than do prisoners. Thus, the rights guaranteed to prisoners can usually be assumed to be the minimal rights also guaranteed to patients in mental hospitals. The current trend is toward increasing the free speech rights of both prisoners and patients. The outgoing mail of prisoners has traditionally been censored and the incoming mail read.'*? The courts have varied widely in their opinions about the permissible restrictions on prisoner correspondence. In 1974, the Supreme Court considered this matter in Procunier v. Martinez.'® The Court in that case estab- lished the following guidelines: First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial govern- mental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator’s duty. But any regulation or practice that restricts inmate correspondence must be gen- erally necessary to protect one or more of the legitimate interests identified above.'®! The Court did not base this decision on the free speech rights of prisoners, which the Court did not decide, but on the free speech rights of those who wished to correspond with the prisoners. The ''CONSTITUTIONAL DOCTRINES 37 Court noted that under certain circumstances mail could be censored, e.g., mail discussing escape plans or proposed criminal activity. There may be inspection for contraband, but there should not be blanket censorship or inspection of outgoing or incoming mail. Restrictions should be related to a legitimate interest of the Government. More recently, some courts have extended further the corre- spondence rights of prisoners. Pugh v. Locke!® allows an un- limited number of letters to be sent or received. Mail to or from courts, attorneys, or public officials may be inspected only for contraband. Paper and postage must be supplied for each inmate for up to five letters per week.'®? Some courts have required that the inspection or limitation of privileged mail requires a hearing and the presence of the individual.'®* Similar or more extensive communication rights exist for patients. The Wyatt court set the following standards: Patients shall have an unrestricted right to send sealed mail. Patients shall have an unrestricted right to receive sealed mail from their attorneys, private physicians, and other mental health professionals, from courts, and government officials. Patients shall have a right to receive sealed mail from others, except to the extent that the Qualified Mental Health Profes- sional responsible for formulation of a particular patient’s treatment plan writes an order imposing special restrictions on receipt of sealed mail. The written order must be renewed after each periodic review of the treatment plan if any restrictions are to be continued.'*® The Wyatt standard allowing an unrestricted right to send sealed mail is extreme. Some hospitals censor letters that contain obscene material or threats to others. A few courts have determined that before censorship is imposed, patients have a right to due process including a hearing by an impartial person or group.'© Personnel who design treatment programs, especially token economies, should be cautious in restricting communication for treatment purposes. Except in unusual circumstances or with the voluntary waiver of the right by a patient or prisoner, rather free communication as suggested above should be allowed. Special care should be taken not to interfere with communication with courts, attorneys, and public officials. Courts, however, have permitted some restriction or delay of access to books and periodicals for prisoners for disciplinary purposes.'®’ After allowing some basic reading material, e.g., a hometown newspaper, a Bible, and several educational and recreational books, it would probably be permis- sible to set up a treatment program in which patients or prisoners ''38 LEGAL ASPECTS OF ENFORCED TREATMENT “earned”? additional material. General library privileges, for ex- ample, might be earned. However, prisoners must be allowed to use a prison law library to give them access to the courts by pre- paring pleas and motions. Token economies could be established in which persons earned access to reading materials not generally available within the institution, such as subscriptions to a particular sports, business, or popular magazine. Much of what has been said about correspondence may also be applied to visitation. Although the visitation privileges of prisoners may be limited for security or disciplinary purposes, complete restriction of visitation with family members is prohibited under the first amendment.'®* One court found no constitutional viola- tion in allowing inmates two visits a week ranging from 1 to 2 hours per visit.!®? Visits may be supplemented by telephone calls. It has been suggested that each inmate be allowed unlimited local calls for 10 minutes per week and 10 additional minutes in lieu of personal visitation. Long distance collect calls should be allowed for the same period.'!” In Morales v. Terman,'”' a United States district court considered the visitation needs of juvenile offenders. The court concluded, ‘‘Failure to allow and encourage full partici- pation of family and interested friends in the program of a youth- ful offender constitutes a violation of the juvenile’s state and federal right to treatment.”!”* The institution was required to permit visitation by family and friends for at least 2 hours per day on weekdays and for 8 hours on weekends and holidays. Except for substantial safety or treatment purposes, mental patients should be permitted liberal visitation privileges. Attorneys have nearly unlimited access to clients in prisons and hospitals. Many States have mental health statutes granting special visitation rights to attorneys, physicians, and the clergy.'”° The freedom to hold and verbally express religious beliefs is strongly supported by judicial interpretations of the first amend- ment. Courts are particularly sensitive to infringements by the State upon religious beliefs. To justify such an infringement, the State must have a substantial or compelling interest, such as safety, security, or the preservation of the rights of others (i.e., institu- tional order). In Peek v. Ciccone,'” a prisoner convicted of robbery became convinced during a religious experience that Christ had reappeared on earth in his body. Because Christ was a Jew, the prisoner wanted to attend Jewish religious services. The Rabbi refused to allow him to attend because he was not a Jew by birth or choice. On one occasion, the prisoner was forcefully given a tranquilizer to control his disruptive behavior. The United States district court concluded that there was no violation of his religious ''CONSTITUTIONAL DOCTRINES 39 rights because he was allowed to believe as he wished, even though he was not allowed to attend the Jewish services. The prison authorities had also prevented him from mailing a letter to the Pope explaining his ideas. The court ordered the authorities to allow him to mail a “‘respectful letter’’ to the Pope. The courts have traditionally recognized a difference between the freedom to believe as one wishes and the freedom to exercise that belief. The Supreme Court has noted that the first amend- ment “embraces two concepts—freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protec- tion of society.’’'* In the advancement of one’s religious belief, one may not, for example, incite violence, confront others with epithets or personal abuse, swallow razor blades, or smoke marijuana. Treatment should not infringe upon religious belief. Limitations on religiously motivated conduct or behavior should meet two tests. One is a compelling State interest, such as a clear and present danger of riot or disorder.'’” The second test is that the restriction should not be greater than is necessary. There should not be available an alternative form of regulation that would be less restrictive.‘ In only very exceptional circumstances could a treatment program meet these two tests. A treatment program that restricted all access to religious services or literature, unless such access was earned by appropriate behavior, would violate first amendment rights. On the other hand, after access to regular religious services and literature had been allowed, a program could arrange for persons to earn extra privileges, such as a trip to a special religious service outside of the institution. Great caution should be used, however, in treatment programs that might restrict religious thought or behavior. The argument is sometimes made that the Government should not intrude upon thought or freedom of the mind.!” That is an overly broad interpretation of the first amendment. The Govern- ment requires children to attend school—presumably to change their thought patterns—and prisoners may be required to attend educational courses.'*° The Government requires warnings on cigarettes and diet soda about the risk of cancer to influence people’s thought and behavior (but without much success). To the extent that imprisonment or the confinement of juveniles is to have a rehabilitative purpose, that purpose must be achieved by changing the offender’s mind. Having only thoughts about a crime is not itself a crime. But this does not prevent the State from taking preventive or prophylactic measures against the person ''40 LEGAL ASPECTS OF ENFORCED TREATMENT likely to commit a crime by changing thoughts about impermissible conduct—as it does when it sponsors ads against drug abuse. Perhaps such a thought-changing program might not be prohibited by the first amendment, even when it is individually focused and enforced (as with compulsory education), if certain requirements are met. At minimum, these requirements might include: (1) the conviction for a serious offense which is likely to be repeated in the near future as indicated by threats, preparations, or other clear and convincing evidence, (2) the program is limited to thoughts, speech, and conduct directly related to the offense, and (3) the program does not substantially interfere with areas of thought, speech, or conduct not related to the offense for which the person was convicted. Even if thoughts about crime are protected by the first amend- ment, conditioning programs might nevertheless be used to prevent the translation of these thoughts into action. In discussing the first amendment ramifications of classical conditioning programs, Gobert'!*' suggested a useful two-step treatment program that might not intrude upon protected areas of thought, even when those thoughts include crime. In Gobert’s view: A carefully constructed conditioning program will only extinguish thoughts that relate to the commission of crimes, thoughts that society has little interest in preserving. Nevertheless, there still might be first amendment ramifica- tions to a conditioning program. In certain circumstances the thoughts motivating the criminal conduct might not themselves be improper. This might occur, for example, where the prisoner’s crime was a “‘political” one. The Supreme Court has recognized that anti-government views are protected by the first amendment as long as they are not translated into action against the state. Successful condi- tioning could suppress both the constitutionally protected thoughts and the prohibited anti-government actions. But a carefully constructed conditioning program could avoid this first amendment pitfall. For example, the prisoner could be shown two films, one in which the anti-government protester both expressed his views verbally and translated them into illegal activities, and another in which he restricted himself to verbal attempts to persuade others. The prisoner would receive negative reinforcement (aversive conditioning) follow- ing the first film but not the second. To further develop the distinction, the prisoner could be given positive reinforcement following the second film. A similar two-step conditioning process could be utilized generally to avoid first amendment problems even where the prisoner’s thoughts related solely to ''o~ CONSTITUTIONAL DOCTRINES 41 crime. Such thoughts, while perhaps serving no socially useful function, might still come within the ambit of the first amendment’s protection.!®? The thirteenth amendment prohibits slavery and involuntary servitude. Because token economies can involve tasks for which compensation is paid in the form of tokens or points, they are subject to scrutiny under the involuntary servitude clause. In Jobson v. Henne,'** a Federal court of appeals observed that some work programs in mental hospitals could constitute involuntary servitude if they were “‘ruthless in the amount of work demanded”’ and they required work under poor conditions. The court per- mitted the hospitals to use patient labor for the benefit of the hospital if the chores performed by the patients were either (1) “reasonably related to a therapeutic program” or (2) of a ‘normal housekeeping type and kind.’’!8* Wyatt did not deal directly with this thirteenth amendment issue but found that nontherapeutic, uncompensated work assign- ments contributed to the degeneration of patient’s self-esteem.!®* The standards established by Wyatt allow the hospital to require therapeutic tasks if these tasks do not involve the operation or maintenance of the hospital. Therapeutic tasks are to be part of the patient’s treatment plan and supervised by a staff member to oversee the therapeutic aspects of the work.'*® Thus, in Wyatt, no work involving hospital operation or maintenance is allowed, whether or not that work is therapeutic. The purpose of the Wyatt standard is to prevent the practice of using patients to perform for the hospital work that has little or no therapeutic value.!*7 The implications of Wyatt for behavior modification programs in institutions have been summarized by Budd and Baer: The Wyatt decision has direct implications for behavior modification programs in institutions for the mentally handi- capped: it prohibits the use of any work involving the opera- tion or maintenance of an institution as a target response for supplying privileges or for earning release from the institution. While this ruling limits the scope of future programs, it does not prohibit the application of systematic contingencies to a wide variety of personal housekeeping chores and vocational and therapeutic skills, as long as they are not related to insti- tutional maintenance. The development of these skills is indeed an appropriate target for applied behavioral programs, since the principles of behavior modification are applicable to any behavioral classes that are responsive to systematic environmental events. Thus, the Wyatt decision relative to 305-654 0 - 79 - 4 ''42 LEGAL ASPECTS OF ENFORCED TREATMENT involuntary labor need not be interpreted as a curtailment of behavior modification programs in general with institutional- ized, mentally handicapped persons. Behavior modification programs that focus solely upon habilitative and self-care skills will allow researchers and clinicians to continue learning about institutional populations and the effects of various procedures for training new skills while at the same time serving the therapeutic needs of the residents.'** Wyatt permits patients to perform labor voluntarily for hospital operation or maintenance. Such voluntary labor, whether thera- peutic or not, would, according to Wyatt, have to be compensated in accord with minimum wage laws.'®? Furthermore, Wyatt stipu- lates that ‘‘Privileges or release from the hospital shall not be conditioned upon the performance of labor (hospital operation or maintenance) covered by this provision.”'®® Baer and Budd interpret this requirement to mean that work performance should not be the sole criterion to be considered in evaluating a person’s readiness to leave the hospital.'*! In contrast to patients, prisoners may be required to work for profitmaking prison industries or for the maintenance of the prison.'°? Work requirements may also be imposed on probationers spending weekends at a facility doing community service jobs without violating the involuntary servitude clause.'* ''CHAPTER 3 Conditions for Valid Treatment Agreements Consent The general rule is that the consent of the patient or prisoner should be obtained prior to initiating treatment. Without consent, the treatment personnel, and sometimes the institution, may be liable for battery and, possibly, for some constitutional violations. Technically, the ‘“‘touching” of a person without that person’s consent is a battery. It does not matter whether the touching was done maliciously to harm the person or whether the touching was done with an intent to help or benefit the person. In the area of medical law, unconsented touching results in liability for a “technical battery.’’'°* The touching includes not only direct physical contact but also X-rays, medication, and the application of stimuli, such as electric shock or aversive noise. Courts have rather liberally defined the concept of touching to include even the touching of a person’s clothes or a woman’s handbag as a touching of the person. It is likely that they may extend the concept of touching to include psychological testing, psychotherapy, and various forms of counseling.'*5 The consent given by the person is to be informed consent. If consent was obtained without first giving the person adequate information about the treatment, the person’s consent is inef- fective. The treatment personnel are still liable for battery!?® or malpractice.'°? How much the prospective participant must be told is a matter of considerable legal discussion. At minimum, the person should be given information about the basic nature of the treatment and the ‘‘material risks’ involved.!°* Whether a risk is material or not depends upon its likely incidence and severity, considered from the person’s point of view. The test is whether a reasonable person in similar circumstances would consider the risk a significant factor in deciding whether to participate in the treatment.'°? Thus, the risk of serious injury or untoward results from electroshock treatment must be disclosed to the prospective patient.”°° Similarly, it is necessary to inform a prisoner considering participation in special work-release treatment programs that his 43 ''44 LEGAL ASPECTS OF ENFORCED TREATMENT prospective employer be contacted and asked to rate his job per- formance. The material risks in this case for the prisoner is that persons in the community may find out about his criminal record. Ideally, the prospective patient should be informed about (1) the diagnosis or purpose of the treatment, (2) the nature and duration of the treatment, (3) the risks involved, (4) the prospects of success or benefit, (5) possible disadvantages if the treatment is not under- taken, and (6) alternative methods of treatment.” In the area of behavior modification, the following method has been suggested for obtaining consent: “The therapist should describe the procedures that constitute the various treatments, the length of time that treatment will require, the cost of such treat- ment, and any possible side effects that could reasonably be ex- pected to occur as a result of the treatment. For example, ... if aromatic ammonia (smelling salts) were to be used as the un- conditioned stimulus in an olfactory aversion treatment, then the client would have to be told that repeated inhalation of aromatic ammonia can cause vasodilatation and thereby produce headaches and nasal irritation.” *°? Relatively minor risks inherent in common treatment procedures do not need to be discussed with the prospective participant ‘““when it is common knowledge that such risks inherent in the procedure are of very low incidence.”?°? An exception may occur if treatment personnel know that a prospective participant is particularly fright- ened of a minimal risk and then intentionally fail to mention it in order to gain the consent of the person. More complicated proce- dures or treatment programs that involve risk of serious harm require an explanation of the risks in terms the prospective partici- pant can understand. It may be noted that there is room for mistaken judgment and some error about what must be disclosed to a person to make consent an informed consent. Usually, liability will not be imposed upon treatment personnel unless the communication to the prospective participant is ‘‘unreasonably inadequate.” ?°4 There has been much emphasis upon obtaining written, informed consent prior to treatment. In some circumstances, consent in written form is required, e.g., in many research programs funded by the Federal Government. The primary purpose of the written consent form is to provide evidence. With a written form, it is possible for institutional review committees, agencies, and courts to examine the type and nature of the consent obtained. (Some illustrative consent forms can be found in Appendix D.) For some purposes, consent can be equally well or better obtained by tape recording or video recording the consent process. In this way, the ''VALID TREATMENT AGREEMENTS 45 discussion of the factors involved in the treatment and the person’s questions and attitude can be recorded. Later, should issues of coercion or duress arise, the information is available for review. Spece has offered some specific suggestions for tape-recording consent in institutions.°* In addition to the written consent form, there should be a written description of the surroundings. (This may not be necessary if video tapes are used.) ‘‘The therapist should not just be required to recite the ‘facts’ to the inmate. He should address the inmate and ask him whether his consent was made voluntarily with an understanding of all the facts.’’?°° A similar procedure is required when judges accept guilty pleas. In contrast, consent can sometimes be inferred from the actions of participants. If, for example, prisoners voluntarily line up for a routine blood pressure test, it can be reasonably assumed that a prisoner who joins the line and observes the procedure has given consent for his blood pressure to be tested unless he objects. Of course, such a procedure is routine with minimal risks. In the situation of an ongoing, drop-in group encounter session, a person who drops in may also give his consent after having observed the group. To make sure that the consent of the person is informed, it is useful to have a printed statement describing the nature of the group, expected effects upon the participants, and possible risks. Among the risks that may not be known by prospective partici- pants is that statements made in the group setting may not be treated confidentially by the other participants. Consent can, of course, also be obtained orally by asking the person, but the evidential value is low. In ambiguous situations, consent should be obtained in writing. As previously mentioned, there may be circumstances in which written consent is required. One circumstance is experimental treatment involving a painful and very unpleasant experience. In Knecht v. Gillman,*°’ inmates were made to vomit from injections of apomorphine administered to them with consent. These injec- tions were administered for minor violations of hospital protocol. The court commented, ‘‘Whether it is called ‘aversive stimuli’ or punishment, the act of forcing someone to vomit for a fifteen minute period for committing some minor breach of the rules can only be regarded as cruel and unusual unless the treatment is being administered to a patient who knowingly and intelligently has consented to it. To hold otherwise would be to ignore what each of us has learned from sad experience—that vomiting (especially in the presence of others) is a painful and debilitating experience. The use of this unproven drug for this purpose on an involuntary basis, is, in our opinion, cruel and unusual punishment prohibited ''46 LEGAL ASPECTS OF ENFORCED TREATMENT by the eighth amendment” (emphasis added).?°* The court then prohibited the use of apomorphine for treatment unless three specific conditions were met. One condition was that each injection should be medically administered and authorized only upon infor- mation obtained by personal observation by professional staff members. The other two conditions related to informed consent: 1. A written consent must be obtained from the inmate specifying the nature of the treatment, a written descrip- tion of the purpose, risks and effects of treatment, and advising the inmate of his right to terminate the consent at any time. This consent must include a certification by a physician that the patient has read and understands all of the terms of the consent and that the inmate is mentally competent to understand fully all of the provisions thereof and give his consent thereto. 2. The consent may be revoked at any time after it is given, and if an inmate orally expresses an intention to revoke it to any member of the staff, a revocation form shall be provided for his signature at once.”°? Knecht did not prohibit the experimental treatment, but did require specific consent procedures. The procedures required in Knecht seem generally reasonable and standard except for one requirement—the physician’s certification that the patient is mentally competent to understand the provisions of the consent agreement and to give his consent.?'° This special requirement may have been imposed because the treatment took place at a security medical facility which is likely to house many more mentally incompetent offenders than a prison. In a mental hospital, the medical screening of patients for competency to consent to aversive, experimental treatment is appropriate. In other settings, the evaluation of a person’s competency to consent may be done by a nonmedical witness who observes the person’s demeanor, behavior, comments, and signature, as is customarily done in business, probate, and criminal matters. There is presumption of competency, unless there are indications to the contrary. Although the consent of a prospective participant is desirable and is nearly always required, there may be some limited exceptions, such as the treatment of an incompetent or minor person committed to a mental hospital for treatment. In Price v. Sheppard,”'' a youth who had a history of problems with drug addiction and aggression was confined in a security mental hospital. His diagnosis was simple schizophrenia. After usual medications failed to improve his condition, consent was sought from his mother to give him ''VALID TREATMENT AGREEMENTS 47 electroshock treatments. Through an attorney, the mother arranged for an independent psychiatric examination of her son. The psy- chiatrist recommended electroshock treatment if the youth did not respond favorably to medication. About 1 month later, a series of 20 electroshock treatments began without the consent of the youth or his mother and against her express wishes. His mother then brought suit on behalf of her son for assault and battery, cruel and unusual punishment, and invasion of privacy. Although the defendant was legally immune from the assault and battery claim by State law, the Supreme Court of Minnesota did consider the claim briefly by way of clarification. According to the court, the defendant, as director of the mental hospital, was privileged to institute therapy without consent as a part of his duty to provide care to involuntarily committed mental patients.?!? This was based upon the standard for commitment in Minnesota. It in- cluded a finding that the person was a “mentally ill person,” combined with evidence that the person’s ‘“‘customary self-control, judgment, and discretion in the conduct of his affairs and social relations is lessened to such an extent that hospitalization is neces- sary for his own welfare or the protection of society ....” 7’? The court interpreted this to mean that the patient was unable to make suitable decisions about his medical care. This in turn imposed a duty upon the institutional doctors to provide treatment. With regard to the constitutional issue of cruel and unusual punishment, the court concluded that the electroshock treatments were “treatment”? rather than punishment because they were not triggered by any single incident and were administered only after other forms of treatment failed to show a curative effect.?!* The court expressly noted that the facts in this situation differed from Knecht v. Gillman in which injections of a drug were given for minor viola- tions of hospital protocol. The unconsented treatment was not cruel and unusual punishment because it was not punishment. The issue of the invasion of privacy was more difficult for the court. The court concluded that ‘‘The state’s interest in assuming the decision [to impose treatment] is in acting as parens patriae, fulfilling its duty to protect the well-being of its citizens who are incapable of so acting for themselves.... If that interest of the state is sufficiently important to deprive an individual of his physi- cal liberty, it would seem to follow that it would be sufficiently important for the state to assume the treatment decision. We hold that it is.”’?15 Finding no liability for unconsented treatment, the court then established legal procedures to be followed in the future before using ‘more intrusive forms of treatment”? without consent. These ''48 LEGAL ASPECTS OF ENFORCED TREATMENT legal procedures included the appointment of a guardian ad litem and a court hearing, reflecting the current trend in which intrusive forms of treatment may be imposed without consent only with court approval at the time of commitment or subsequently. Less in- trusive forms of treatment, such as milieu therapy, counseling, and contingency management, may be imposed without a court hearing. However, in general, much caution should be used in imposing unconsented treatment. Contract Consent is not the same as contract. Consent, as discussed above, is related primarily to tort law and sometimes to constitutional law. Consent allows “touching” and prevents claims of assault and battery. Contract lies in another area of law which enforces mutual agreements and expectations. The typical consent to treatment form (see Appendix D) often involves not only elements of consent but also agreements which go beyond consent into the area of con- tract. The form may state, for example, that the person will follow certain instructions and pay a particular fee. These are matters of contract rather than consent. Even when a consent form does not explicitly mention these matters, there may be an implied contract which is legally enforceable.?!® The terms of the contract may be implied from what was said or from the conduct of the parties. The person who does not pay his doctor’s bill should quickly realize that there has been an implied contract in the treatment situation when he is sued for breach of contract even though no forms were signed. Before initiating the treatment of offenders, consent should, of course, be obtained. In addition, treatment contracts (incor- porating the consent agreement) may have advantages for both the patient or client and the treatment personnel. In 1975, the Public Citizen’s Health Research Group (associated with Ralph Nader) published a book in which one chapter was titled, ‘‘The Contract: An Idea Whose Time Has Come.’’?!” It contained a sample ‘“Con- sumer/Therapist Contract” (see Appendix D) which specified payment, renegotiation of the contract, and the confidentiality of information. Therapists with an empirical orientation have also advocated the use of contracts. Saper concludes an article on civil rights and mental health with the following observation: The crucial ingredient of the psychosocial or social learning approaches to mental health treatment may be the contract, ''VALID TREATMENT AGREEMENTS 49 agreement or covenant between the individual client and the professional change agent. It may also be a promising solution to some of the legal problems involved. The rights of both the individual and the professional are negotiable within this trans- action. In those cases where the individual is a minor or a re- luctant adult client, a third party could be added to the con- tract negotiations serving as ombudsman or advocate for the client (and secondarily, perhaps representing the rights of the family, the police, the courts or other quasi-governmental agents). Behavior modifiers typically observe this practice with a diligence so far unmatched by other therapists. This treatment contract could indeed become a productive vehicle through which the client may achieve rights, liberty and the pursuit of mental health.?!® An important emphasis in the contractual approach to treatment is the negotiation of treatment goals between the patient and thera- pist. Briefly summarized, the mutual negotiation of treatment goals has several practical benefits. There are several practical benefits of a mutually negotiated contract of treatment goals. It provides the mental health worker with a conceptual basis on which to organize thera- peutic efforts. It provides the patient with a structural frame- work for mobilizing his available problem-solving mechanisms and resources. It enables the patient, community caregiver, and clinic staff to establish realistic expectations of clinic intervention in the patient’s life situations. And it produces valuable administrative information about the problems clinic staff are handling.”!° Contracts can encourage a more open discussion of privileges and responsibilities than is usual between institutionalized persons and staff. A contract could clarify, for example, matters such as visitation privileges, control of personal property, the therapeutic goals to be achieved prior to release, and leave revocation pro- cedures.” The contractual negotiation process may enhance in- dividual choice and at the same time facilitate supervision and control by responsible agencies and professional organizations. Supervisory personnel and committees can review and, if necessary, approve patient/therapist contracts before they become legally effective. Patients and prisoners do not automatically lose their legal right to enter into contracts by the process of commitment or confinement. The Wyatt court explicitly stated, “‘No person shall be deemed incompetent to manage his affairs, to contract, to hold professional or occupational or vehicle operator’s licenses, to marry and obtain a divorce, to register and vote, or to make a will solely ''50 LEGAL ASPECTS OF ENFORCED TREATMENT by reason of his admission or commitment to the hospital.” ??! Newer commitment statutes explicitly preserve the right of patients to enter into contractual relationships.?? Generally, there should be a specific judicial finding of incompetency to contract before it is assumed that a patient may not contract.??° Treatment contracts of varying degrees of complexity and enforceability have been made between patients or clients and therapists. In an institutional setting, the contract can be a simple one stating that the therapist or institution agrees to provide treat- ment that is customary and usual in the profession in exchange for the patient’s cooperation in a treatment program. A simple contract of this type may reduce the likelihood that the patient will be given treatment of an obviously inferior quality. Failure to provide cus- tomary and usual treatment is a breach of contract.?** On the other hand, if the patient failed to follow reasonable treatment re- quirements stated in the contract, e.g., show up at group meetings, record daily behaviors, regularly take medication, the patient can- not very well allege that treatment was inadequate. Although a therapist may contract with a patient to produce a particular “cure,”?5 most therapists agree to provide customary and usual treatment. This treatment is not provided in a negligent manner; it conforms to professionally recognized levels of skill and knowledge. Although a major value of treatment contracts lies in the structur- ing of mutual expectations and obligations which most people ful- fill, the enforcement of contracts is also important. As previously noted, treatment personnel or institutions may be held liable for breach of contract. In older legal cases, the courts were reluctant to enforce contracts made by patients or prisoners. An old, leading case was Ex part Lloyd,?®® in which a patient signed an agreement to remain in the Federal facility at Lexington, Kentucky, for treat- ment for a specific period of time. The court, however, did not re- quire the patient to stay at the facility because it feared that en- forcement of the contract would permit patients to contract away their liberty. The reasoning in Lloyd was questionable.??’ In dis- cussing this and related cases, Wexler concludes, ‘‘Although early cases went the other way, recent cases hold that the addict is bound by his agreement and cannot legally leave the hospital at will.’’??° A more recent case enforcing the contract of an addict for treat- ment is Ortega v. Rasor.””° The patient agreed that the court could commit him for 6 months to a hospital for treatment and then to post-hospital treatment under Title III of the Federal Narcotic Rehabilitation Act of 1966.7°° He subsequently changed his mind and asked to leave the treatment program. The court flatly asserted that ‘Mr. Ortega was fully apprised of his responsibilities ''VALID TREATMENT AGREEMENTS 51 under the Act and, in fact, understood these responsibilities. The Court will not permit the petitioner to terminate his treatment simply because the road to recovery is bumpy.’’?*! In Tracy v. Salamack,?*? the court dealt with an agreement signed by inmates in a work-release program. The agreement read in part, “I understand that my participation in the program is a privilege which may be revoked at any time and that if I violate any provision of the program I may be taken into custody by any peace officer and I will be subject to disciplinary procedures.” ?°* Prior to this statement, specific acts were listed in the agreement as reasons for removal from the program. Participants argued that removal from the program should be preceded by a hearing. The court agreed that participants could not be removed from the program without a hearing unless they committed an offense “within the letter [a specifically listed act] or spirit of the agreement.” The court reasoned that the participants had a reasonable expecta- tion that they would be allowed to continue in the program unless there was a particular violation. This expectation was based upon the actual practice of the State. The Tracy decision suggests that courts may read contracts be- tween offenders and the State rather narrowly so as to prevent un- expected arbitrary actions by the State that may cause a grievous loss to offenders, particularly if the prior practice of the State creates an “‘entitlement” or an expectation of the right.?°* In that situation, the right may still be revoked, but only following a due process hearing unless there is an emergency. It should be noted that the Tracy court did not invalidate the agreement between the inmates and the State. Nor did it say that removal from a contractual treatment program always requires a prior, due process hearing. The Department of Correctional Services had argued that such hearings would delay the speedy removal of participants who presented a danger to the community. In response, the court suggested, ‘““The Department can avoid the present dilemma easily enough by making it clear to future par- ticipants both in the agreement and verbally —and in practice where necessary —that their participation may be revoked for literally any reason. If this were done, it would prevent an entitlement from coming into existence.”?3° In other words, a contract allow- ing revocation without a hearing is legally permissible if the par- ticipants clearly understand this ahead of time. This logic should also apply to ‘‘contract parole” programs in which a parole board agrees, for example, with an inmate about specific objectives to be reached prior to parole. When the inmate reaches these objectives in areas such as education, work skills, ''52 LEGAL ASPECTS OF ENFORCED TREATMENT discipline, or treatment, he is to be released. Usually a definite parole date is specified in the contract. Release is then contingent upon the inmate’s performance in reaching the stated objectives.?*° These contracts can usually be renegotiated. They may also involve the negotiation of specific tasks to be performed in the community. In some of the “‘contract parole” programs (also known as mutual agreement programing), the parolee may agree to make restitution to the victim, perhaps by reimbursing the victim from salary earned while on work release or parole status.?*” The final negotiation of these restitution contracts may involve the presence of the victim, if the person wishes to be involved. A written contract (or explicit verbal agreement) may also be used by a court to help establish the expected level of treatment necessary to meet the constitutional requirement of adequate treatment.”** In Nelson v. Heyne,?*® youths at the Indiana Boys School were classified and placed into cottages according to their personality and behavior patterns as measured by standardized tests. The court described the treatment program in the following manner: The program is structured around a contract notion. Follow- ing admission to a cottage, each inmate agrees to improve his behavior in four areas of institutional life denominated ‘‘cot- tage,” “recreation,” ‘‘school,” and “‘treatment.’’ The first category generally concerns a given responsibility for physi- cal maintenance of the residential area; the second involves social and athletic activities; the third concerns reaching spe- cified levels of academic or vocational skills; and the last suggests improved personality goals. As each of four succes- sive “contracts” is fulfilled, the youth is granted additional institutional privileges, ultimately culminating in a parole date. The court did not find the classification contract or program illegal. Instead, it observed that the “implementation of the pro- gram falls far short of its goals.” With regard to the adequacy of treatment, the court concluded that the “program appears to be more form than substance’? and that the defendants failed to provide ‘‘minimal efforts of treatment and rehabilitation.’’?*! The court found a potential violation of constitutionally required stand- ards of treatment. An appellate court subsequently affirmed that conclusion.”4? There should be little doubt that the courts will recognize as valid contracts that are voluntarily and knowingly entered into by offenders. Reasonable and fair terms of a contract will be enforced ''VALID TREATMENT AGREEMENTS 53 against both parties. The contractual rights and capacity of mentally ill persons are less well defined in the treatment area. Here prob- lems involving coercion, undue influence, or unconscionability become most relevant. Limiting Doctrines A contract requires at minimum an offer and an acceptance by two parties who are mentally competent to enter into the agree- ment. Sometimes, however, the courts do not enforce an agreement because of difficulties occurring during the process of reaching the agreement. One example is a serious mistake of fact, e.g., one per- son agrees to sell a house to another person, but neither of them knows that just prior to signing the contract the house has burned down. Other difficulties that may make agreements void or voidable are problems such as fraud, coercion, and duress. Fraud and Misrepresentation Fraud involves the misrepresentation of a material fact by a per- son knowing that it is false.2** This is done with the intention of having the other person rely on the misrepresentation and enter into the contract. The person to whom the misrepresentation was made must rely and act upon it. The harm (damage) caused by this reliance may be financial, but it may also be some other form of harm, e.g., expending time and effort or giving up a pleasureable activity .?** Conduct by a professional person may be unethical, but it is not fraudulent unless it also involves these elements of misrepre- sentation, knowledge that the statement is false (usually), intent, and harm. In Board of Medical Registration and Exam v. Kaadt,?** a physician was found guilty of fraud when he told patients that sugar could be beneficial in the treatment of diabetes. When one party has used fraud in obtaining a treatment contract, the injured party may set aside the contract. (The contract is voidable against the wrongdoer.) In an attempt to protect the injured party, courts vary greatly in their interpretation of fraud. The essence of fraud is misrepresentation. Misrepresentation may be an incorrect statement of facts or of intention to perform the agreed upon act. In a treatment contract, fraud is involved if the treatment personnel agree to release a patient who reaches a specified level of job skill, when in fact they never intended to re- lease the person. Conversely, a prisoner who agrees, for example, ''54 LEGAL ASPECTS OF ENFORCED TREATMENT to attend group therapy meetings as a condition of parole but actually never intends to participate has made a fraudulent misrepre- sentation. The contract is voidable, and his parole status can be re- voked. Usually a statement which is an opinion or a value judgment is not a sufficient basis for fraud, e.g., ‘“This car is a great value,” “This program is the best program in the country.”’ Supposedly, such statements are recognized as not always true. Sometimes, however, opinion statements by professional persons made with the intention of having the patient or client rely on them are a suitable basis for liability for fraud. In the classic article, ““Fraud, Undue Influence and Mental In- competency,” by Green,”*° the possibility of combined fraud and mental illness was raised. A mentally ill person may not be so ill as to be incompetent to contract, but may still be more susceptible than others to fraud. Green suggested several methods for “‘soften- ing” the burden on the patient. The one most likely to succeed in- volves redefining the concept of fraud so that if mental illness is shown, a lesser degree of proof is needed to prove that the other party acted fraudulently. A jury given this ‘‘qualified definition” of fraud is likely, Green notes, to make generous use of the qualification. Persons have sometimes been found liable for the negligent misrepresentation of facts when there was no intention to deceive. Courts vary in their recognition of this legal action. If the person being negligent is a therapist, a more appropriate legal action may be for malpractice.?*” Duress The discussion of the concepts of duress and coercion by courts, legal commentators, and mental health professionals sometimes seems no more lucid than the conversations of the patients whom these concepts are intended to protect. Unfortunately, the dis- cussion here may not rise far above that level because in law, as well as fact, these terms are often overlapping or undistinguish- able.?*® The central notion in duress is a threat of harm (or loss of liberty) that limits the freedom of choice of the other person. The threatened harm may be physical, or it may be economic, social, or perhaps psychological. An agreement made while being threatened by a weapon is an agreement made under duress and is void. Similarly, an agreement made because of a threat to property, e.g., burning down the person’s house, is void. Social threats may also void an agreement, e.g., threatening to inform the local news- paper that the person is a chronic gambler. A threat to inform the ''VALID TREATMENT AGREEMENTS 55 police about a crime committed by the person or by a member of his family also constitutes duress. Treatment contracts are not very likely to involve duress as it is defined here. The unpleasantness and deprivations present in insti- tutions are not alone sufficient to constitute duress. Release from an institution does not involve duress because the release is not a threat to the patient or prisoner. (Whether such a release is coercive is discussed below.) Contract parole or contracts specifying conditions of release from a mental hospital will ordinarily not involve duress. If, on the other hand, a patient is forced to agree to terms of a contract to avoid exposure of the fact of his commitment to his employee, duress may be involved. Similarly, persons should not be made to enter treatment contracts in order to avoid having rule infractions or legal violations reported to institutional authorities, mental health agencies, or the police. Coercion The concept of coercion usually involves the notion of exploita- tion. Singer suggests that “cone might define as ‘coercive’ in special circumstances an object or good which, in normal circumstances, would never be thought of as coercive, depending upon the prior involvement of the parties.”’*° He then provides the following example: (1) A is walking through the jungle and discovers B in quick- sand; A says to B “If I save you, you must agree to give me (half) (all) of your worldly goods.” If A is a total stranger to B, surely the agreement (assuming A performs) is binding; even if we dislike A’s greed intensely and wish he were a more moral person, and even though in one sense he is exploiting B’s predicament. But if (2) A originally thrust B into the quicksand, the agreement is not binding, since A is responsible for the dilemma, and hence, is as effectively coercing B as if he had held a gun to B’s head. On the other hand, if (3) B un- lawfully attacked A and A, in self-defense, threw B into the quicksand, the agreement is valid, even though A was initially ‘responsible”’ for B’s plight, because A acted legally (and per- haps morally) in self-defense.?*° With regard to prisoners, the State occupies the position of A in the third hypothesis described above. The State’s offer to miti- gate the prisoner’s sentence is not coercive because, as a result of the prisoner’s crime, it has a right to place him in prison. He con- cludes: ‘‘This analysis explains why the offer of freedom, or earlier ''56 LEGAL ASPECTS OF ENFORCED TREATMENT parole, is not ‘coercive’.... The ‘inducer’ has not illegally or im- morally placed the subject in the dilemma. Although the courts have never passed upon the validity of a promise of earlier parole in exchange for a prisoner’s participation in an experimental project, they have consistently upheld the analogous situation, plea bargain- ing, in which a prisoner waives some constitutional rights in ex- change for an opportunity (in some cases an assurance) for a shorter sentence and hence earlier release.’’?*! Kaimowitz ex rel. John Doe v. Department of Mental Health for the State of Michigan?** is often cited as prohibiting institution- alized mental patients from consenting or contracting to treatment because of coercion. The Kaimowitz Court stated, ‘“Involuntarily confined mental patients live in an inherently coercive institutional environment. Indirect and subtle psychological coercion has pro- found effect upon the patient population. Involuntarily confined patients cannot reason as equals with the doctors and administrators over whether they should undergo psychosurgery. They are not able to voluntarily give informed consent because of the inherent inequal- ity in their position.”**? From this possibly incorrect conclusion by the court, there have been extreme and obviously incorrect generalizations. One writer citing Kaimowitz commented, “An institutional setting is, by its very nature, so inherently overreaching as to render suspect and possibly unconscionable almost any con- tract entered into by patients with respect to their own care and treatment. In such a setting and such a context, freedom of con- tract is an illusion.’’?** To help avoid overgeneralization, it should be noted that the Kaimowitz case dealt with consent (a matter of tort law), not contract. The court dealt with experimental pro- cedures (experimental psychosurgery with unknown risks), not with customary and usual treatment. Finally, the court dealt with invasive and irreversible treatment, not with psychotherapy, be- havior modification, or community intervention programs. Even in its limited area of decision, the Kaimowitz decision is, at minimum, confused. One problem is that the court failed to limit the applicability of its concept of coercion. If its concept is extended beyond experimental psychosurgery, it prevents consent to other operations and therapy. This then results in a return to the old, largely discredited view that committed mental patients because of their status as patients are legally incompetent.?°> In discussing the Kaimowitz decision Wexler appropriately suggests: Surely, the courts would not extend the concept of coercion to cover more conventional types of therapy, even though the inducement to submit to such therapies may be identical to the inducement to submit to psychosurgery. What this indicates, ''VALID TREATMENT AGREEMENTS 57 I think, is that this area of the law, like many others, uses the concept of coercion not simply to invalidate choices made under impermissible pressure, but rather invokes the concept as camouflage when condemning choices the consequences of which are unacceptable. Choices deemed beneficial are typically sustained despite the presence of indisputable, and perhaps overwhelming, pressure to select a particular option. ‘‘Vol- untary”’ acceptance of a program of outpatient psychiatric treatment in lieu of criminal prosecution is one clear example, as is “voluntary” agreement to comply with reasonable condi- tions of probation and parole. In both examples, the strong desire to avoid incarceration must overwhelmingly shape a per- son’s decision to consent to the conditions of release; yet pre- cisely because those conditions are regarded as reasonable, the consent is not legally condemned as being coerced.?*° The Wyatt court, in contrast to Kaimowitz, expressly allowed in its standards for treatment the right to consent to procedures such as lobotomy or other ‘“‘unusual or hazardous procedures.”’*>’ How- ever, prior to this consent, the patients are to have the right to con- sult with legal counsel or an interested party of the patient’s choice. This seems to be the better approach. The concept of coercion should not be extended so far as to exclude patient’s treatment falling within the range of generally acceptable practice. Coercion should not be confused with the offering of options. To the extent that institutions are coercive, the best defense against such coercion is likely to be an increase, not a decrease, of the opportunities given to patients for individual choice and self-determination.?*® Undue Influence Undue influence involves the domination of one person over another person. There must also be a special relationship between the parties, e.g., therapist-patient. While fraud may be practiced upon a stranger, undue influence cannot be. The law requires that a person who dominates in a special relationship not take unfair ad- vantage of the other person. The dominating person should act in accord with the welfare of the other person. An important element of undue influence is the subservient person’s failure to exercise a free choice in entering into the contract with the dominating person. In treatment situations, the special relationship between the patient or client and the therapist is known as a confidential or fiduciary relationship. If a therapist or a treatment institution ob- tains unusual benefit in a contract with a patient or client, the courts examine the contract for the possibility of undue influence. If undue influence is present, the contract is voidable by the patient 305-654 0 - 79 - § ''58 LEGAL ASPECTS OF ENFORCED TREATMENT or client. Therapists and institutions are not to take unfair advantage of their position. On the other hand, therapists and institutions may obtain a reasonable advantage in their contracts with patients, e.g., a therapist may be paid by patients for treatment at the standard professional rate. The therapist may make a “profit” from treating the patient. Although the dominant person must not use undue influence in obtaining a contract, what influence is ‘“undue?’’ Some influence or persuasion is allowed. In the absence of a fiduciary relationship be- tween the parties, the courts are reluctant to find undue influence. The husband of a nagging wife probably cannot successfully claim that his wife used undue influence to get him to buy her a new car. The court would conclude that he had been persuaded, but not so unduly influenced as to preclude his exercise of free choice. In fiduciary relationships, the courts vary considerably in opinions about how much influence may be used. There would be some gen- eral agreement that less influence is permissible with mentally in- competent persons than with normal persons. In the context of treatment, most courts will honor the transfer of property to a therapist, unless the therapist has engaged in some overt activity to obtain the property.”*? If there has been some persuasion or in- ducement on the part of the therapist to obtain a benefit from a patient, the courts have traditionally viewed the contract with suspicion.”®° Courts may require a lower degree of proof of undue influence when mental incompetency is present.”°' Zipkin v. Freeman?® contains an extreme example of undue influence (and duress) in which a psychiatrist convinced a patient to invest her personal funds in his farm, have sexual relations with him, and steal from her husband. This is, of course, rather extreme. But during standard, psychoanalytically oriented therapy, special gifts might be considered the result of undue influence.”®* In most treatment contracts, however, the therapist or institution does not obtain a special benefit. For example, in contract parole agree- ments, the parolee is released earlier by meeting certain therapeutic goals such as work skills. The development of these work skills cannot be claimed as giving the institution an unfair advantage or benefit. If, however, the prisoner is required to work exceptionally long hours on prison maintenance jobs, undue influence may be suspected. The issue is whether the prisoner is able to exercise free choice in the matter, even though the institution did exert some pressure. Prisoners are presumed to be mentally competent. Similarly, mental patients, even when committed, are in most jurisdictions presumed to be competent. But it is reasonable to examine their ''VALID TREATMENT AGREEMENTS 59 contracts carefully to see that they did in fact have an opportunity to exercise a free choice in the contracting process. Unconscionability The concept of unconscionability is vaguely defined but has as its major purpose the protection of naive or disadvantaged persons. The concept has been developed primarily in areas of contracts involving the sale of goods.?®* When a merchant knowing- ly sells a $514 stereo set to a woman who is a welfare recipient with no other income and with seven children to support, that con- tract is probably unconscionable.*®* Courts will not enforce con- tracts, or terms of contracts, that are unconscionable because they are too harsh or oppressive. Sometimes a gross disparity between the values exchanged, e.g., a large amount of money or work exchanged for a small, worthless object, invalidates the contract. More often, however, a disparity only calls for a closer examination of circumstances under which the agreement was reached. People are permitted to make extremely unprofitable (or profitable) agreements without judicial interfer- ence. One circumstance often found in unconscionable contracts is a gross inequity in the bargaining position or power of the parties. When there is such inequity plus a commercially unreasonable con- tract, the courts examine the bargaining process. ‘‘Factors which may contribute to a finding of unconscionability in the bargaining process include the following: belief by the stronger party that there is no reasonable probability that the weaker party will fully perform the contract; knowledge of the stronger party that the weaker party will be unable to receive substantial benefits from the contract; knowledge of the stronger party that the weaker party is unable reasonably to protect his interests by reason of physical or mental infirmities, ignorance, illiteracy or inability to understand the language of the agreement, or similar factors.”?°° Usually, two elements must be present before a contract or term of a contract is found unconscionable: one that there is no true bargaining, the other that there is oppression or surprise.*®’ The aspect of surprise usually involves the discovery of a term or conse- quence of the contract that the party did not realize was there until after signing it, typically, for example, when the purchaser completes a printed contract by filling in blanks “scattered in a jungle of finely printed, creditor-oriented provisions.”*°? Terms other than price may be found unconscionable, particularly waivers of rights. In a discussion of unconscionability and the payment of money to prisoners for research, Singer questions the classification ''60 LEGAL ASPECTS OF ENFORCED TREATMENT of the poor as people who are necessarily unable to understand and bargain sufficiently. ‘In short, to declare that the (arguably) un- ethical use of the poor as subjects, by the inducement of money, is legally ‘unconscionable’ would move the law directly, inextricably, into the philosophical morass of free will, a fen which it has con- sciously and vigorously avoided. For if money is ‘coercive’ for the poor, it is only because it did in fact, induce cooperation and par- ticipation, while other promises would not; that would be tantamount to saying that any inducement is, by definition, ‘coercive’ and ‘uncon- scionable’ because it achieved its aim, requiring the abolition of inducements totally.”?°? If a treatment contract contains obviously unfair provisions or is presented so as to conceal important facts about treatment requirements or consequences, unconscionability may be present. An example is a contract that conceals in fine and obscure print the waiver of the right to a hearing prior to the revocation of a parolee’s work-release status and his placement in solitary con- finement. The waiver of the right to a hearing prior to revocation is not itself unconscionable, though it may be undesirable.?”° If there is an institutional tendency toward involving prisoners or pa- tients in unfair treatment contracts, the proper approach is to in- crease patient and prisoner bargaining skills and power.””’ The focus of corrective action should be on the wrongdoers rather than the victims. Wiretapping, for example, can be eliminated by eliminat- ing telephones. This, however, punishes the users more than the wrongdoers. Similarly, an attempt to prohibit treatment contracts in order to eliminate a relatively few instances of unfairness pun- ishes the very people who need the clear options and increased opportunities for treatment which can be provided by treatment contracts. ''CHAPTER 4 Special Issues Right to Refuse Treatment The issue of the right to refuse treatment is vigorously debated among legal commentators and practitioners with the courts and legislatures acting inconsistently in the background.?”*? Some emerging conceptual trends may, however, be noted. Ordinarily, a mentally competent person may refuse treatment even when that treatment is lifesaving. The person does not need to actively refuse treatment; rather, the person may just refuse to give consent. Treatment in the absence of consent may then result in liability for a tort, e.g., assault and battery, or for the violation of constitutional rights. One major exception is emergency situa- tions when the patient is unconscious and cannot give consent. Another major exception has been the commitment of a person to a mental hospital. Hospital personnel were permitted,?’> perhaps even required,” to use generally recognized forms of treatment either with or without the patient’s consent and with no need for prior judicial approval (unless there was a specific statute requiring otherwise). That view has been seriously undercut by legislative action and persuasive constitutional arguments. A recent survey of statutory provisions allowing patients to refuse treatment or re- straint indicates that there are such provisions in all 50 States and the District of Columbia.*”* Sometimes these provisions are very narrow, e.g., the right to refuse is limited to a specific treatment such as sterilization,?”®° but the provisions may also be very general.?7” Major institutional arguments for a right to refuse treatment were summarized in Scott v. Plante.?”* This case involved the in- voluntary medication of a presumably competent, committed patient. According to the court: [T]he involuntary administration of drugs which affect mental processes, if it occurred, could amount, under an appropriate set of facts, to an interference with Scott’s rights under the first amendment. Moreover, on this record we must assume that Scott, though perhaps properly committable, has never been adjudicated an incompetent who is incapable of giving an informed consent to medical treatment. Under these cir- 61 ''62 LEGAL ASPECTS OF ENFORCED TREATMENT cumstances due process would require, in the absence of an emergency, that some form of notice and opportunity to be heard be given to Scott or to someone standing in loco parentis to him before he could be subjected to such treatment. Finally, under certain conditions, Scott’s claim may raise an eighth amendment issue respecting cruel and unusual punishment.””? The court remanded the case to a lower court to consider the con- stitutional issues involved. A distinction is usually made between patients who are legally competent to make decisions about treatment and those who are not competent. Generally, except in emergencies, competent pa- tients may refuse treatment. From them, consent (or at least no indication or refusal) must be obtained prior to treatment. Some- times consent can be inferred from the willingness of the patient to participate, if the treatment procedure is one customarily used and the risks and benefits are commonly known. It has sometimes been argued and legally held that the fact of commitment itself indicates that the person cannot make adequate decisions about treatment. Therefore, the State may proceed with- out the patient’s consent.”°° This argument is persuasive to the extent that committed patients are genuinely unable to make ade- quate decisions. Commitment criteria are, however, often vaguely inclusive and loosely applied. Thus, persons competent to make treatment decisions (particularly so-called dangerous persons) are often found to be involuntarily committed. Thus, it cannot be automatically assumed that treatment may be imposed upon a committed patient without that patient’s consent. In some juris- dictions, a judicial hearing is required to determine the committed patient’s competency to make treatment decisions.”*' Ideally, this issue should be raised and decided at the initial commitment hearing.?°? Many courts and legal commentators also distinguish between those patients committed under a parens patriae doctrine (for their own benefit in helping them to manage their affairs) and those committed under a police power doctrine (for the protec- tion of others).78* Although commitment statutes do not often refer to these doctrines, the commitment criteria found in them can usually be classified as serving a parens patriae or police power function.?** This distinction may be used in combination with the competency/incompetency dimension to determine the ap- propriateness or legality of imposing treatment. A current view is that the competent patient whether committed for his own benefit or for the protection of others may refuse treatment.?°* When a competent patient committed under the police power doctrine ''SPECIAL ISSUES 63 refuses treatment, that person then bears the consequences of his (supposedly ) knowledgeable decision. In Friedman’s view: Where institutionalization is based upon the state’s police power interest in confining persons who are harmful to others, imposition of treatment on a competent mental patient over his objection cannot be justified. The state’s legitimate safety interest can be fully accomplished by confinement. To be sure, incarceration itself intrudes on other constitutional rights, perhaps more so than the intrusion which would result from compelled treatment. But, the competent patient’s refusal of treatment must be viewed as a waiver of those other consti- tutional rights, precluding the argument that treatment is less intrusive than commitment. While participation in a behavioral program could eliminate a mental patient’s dangerous propen- sities and permit his earlier release, a competent patient’s choice to preserve the integrity of his fundamental rights, the infringement of which is not absolutely necessary to the state’s interest in protecting its citizens, should be respected.?®° Treatment reasonably expected to benefit the patient should be available. If the competent, police power (dangerous to others) pa- tient refuses this treatment, he may not then claim that treatment is inadequate and that he should be released. In Clatterbuck v. Har- ris,?®’ a mentally competent person civilly committed as a sexual psychopath refused available treatment. When he requested release outside of the maximum security area of the hospital, the court observed, ‘‘Petitioner refused to discuss his problem or participate in any fashion in the very course of treatment most effectively used and recommended for those in his condition ....To allow him to refuse treatment and then use that refusal as the basis for the alle- gation that he is not being given treatment and thus should be re- leased ... would be an anomalous result indeed.’’?®* Similarly, in Buchanan v. State,*®° when a civilly committed, competent sex offender refused treatment and requested release, the court tersely commented, “The defendant cannot be heard to complain when he did not accept the treatment offered.” If competent patients could obtain release by refusing treatment, the very purpose of the commitment statute would be frustrated. When incompetent patients refuse treatment (or fail to give their consent), treatment under certain conditions may be imposed. What these conditions should be is legally unsettled. In some States, an incompetent person’s refusal to accept treatment may be over- come by the decision of a hospital director, close relatives, or a court-appointed guardian.?®° If there is an issue of incompetency, the most legally conservative procedure to follow is to request a ''64 LEGAL ASPECTS OF ENFORCED TREATMENT judicial hearing on the need for treatment.””' For the incompetent, police power patient, the court can then weigh treatment alterna- tives against the likelihood of long-term confinement.””” Another possibility that does not so directly and frequently use the courts is the establishment of a Human Rights Committee to review objections to proposed or ongoing treatment.”** Hearings are informal, but witnesses testify under oath (or upon affirmation), and the committee chairperson has power to issue subpoenas to compel attendance. The patient has the right to have representation by an attomey, to testify, to present evidence, and to cross-examine witnesses. Any person objecting to the committee’s ruling can ap- peal to a court for judicial review. Such a committee reviews all refusals or problems involving treatment, whether from competent or incompetent patients.?°* Periodic review of some patients may be necessary because their competency may vary during the course of treatment.”** Whether competent prisoners may refuse treatment is a matter of sharply divergent opinion. There have been two major lines of thought. The older, traditional view is that prisoners may be re- quired to participate in treatment that does not violate their basic constitutional rights, e.g., the eighth amendment’s prohibition against cruel and unusual punishment. In this view, rehabilitation is considered an important aspect of the confinement. The State, it is assumed, has a compelling interest in enforcing treatment be- cause it must protect its citizens from dangerous offenders most (or many) of whom will eventually be released into the community.?”° For a similar reason, the courts have consistently required prisoners, but not mental patients, to work. It is assumed that work skills are: related to success in the community.?®’ Compulsory education has been required for prisoners by the courts. In Rutherford v. Hutto,?®® an illiterate prisoner claimed that his enforced attendance at elementary school classes violated his rights under various amendments including the eighth amendment. He also claimed that attendance made him nervous and that he had a right to be ignorant. The court disagreed. It found that the State had a compelling interest in eliminating illiteracy and could require attendance in classes sufficient to bring prisoners up to the fourth grade level. In addition, the opinion stated, “(T)he Court does not think that it should necessarily be left up to an individual convict to determine whether or not he is to participate in a rehabilitative program such as the one involved here....The Court does not consider that a convict has any more right to refuse to be given a chance to benefit from a rehabilitative program than he has to refuse work or obey the lawful orders that may be given him by ''SPECIAL ISSUES 65 prison personnel.”?°? In a similar situation involving a refusal to participate in an educational program, the use of disciplinary action has been upheld.*°° Courts have upheld statutes for the commitment of addicts to terms longer than what they would have received under a regular penal conviction. One purpose of the longer confinement has been to make treatment available.*°' Courts have approved the adminis- tration of medication to prisoners without consent to reduce anxi- ety and hostility.*°? Sex offenders may be confined to special treat- ment facilities.*° In Clonce v. Richardson,*™ the court held that a prisoner trans- ferred into an involuntary behavior modification program which involves a major change in his conditions of confinement is entitled to a hearing. The court did not rule on his right to refuse to partici- pate in a behavior modification program. Rather, the court noted, “A prisoner may not have a constitutional right to prevent such ex- perimentation but procedures specifically designed and implemented to change a man’s mind and therefore his behavior in a manner substantially different from the conditions to which a prisoner is subjected in segregation reflects a major change in the conditions of confinement.”°°* The court’s decision was based upon the change in living conditions inherent in the program as it was de- signed. The court explicitly refused to consider a stipulated question of law as to whether prisoners had a right to withdraw from the program.*°° Opposed to the concept of enforced treatment is the sharp under- current of a right to refuse treatment. Most simply stated, prisoners are presumed to be competent persons, unless there is a finding to the contrary. As competent persons, they may refuse treatment.?°7 This is in contrast to the old view in which prisoners lost their rights by “civil death” upon confinement. ‘There has been growing recog- nition by the courts that prisoners retain all rights enjoyed by free citizens except those necessarily lost as an incident of confine- ment.”°°? The constitutional basis for the right to refuse treatment has been grounded largely in the concept of privacy as elaborated from the first and related amendments. In Runnels v. Rosendale ,> a hemorrhoidectomy was performed on a prisoner who consistently refused to consent to the surgery. The court found no compelling State interest which would overcome the rights of the prisoner. The court concluded that there had been a violation of the prisoner’s constitutionally protected right of physical security and privacy. In Knecht v. Gillman,*'° a drug was injected to make prisoners vomit. Under the guise of ‘‘treatment,” this punishment was used for certain violations of rules. It was also an experimental procedure. ''66 LEGAL ASPECTS OF ENFORCED TREATMENT The court determined that this was cruel and unusual punishment (even though it was called treatment).*'' The court also ruled that written consent from the inmate must be obtained prior to the use of such a procedure. Further, the prisoner must be informed that he has a right to terminate his consent at any time. Thus, by withholding or terminating consent, a prisoner could effectively refuse to participate. In Mackey v. Procunier,®'* the court noted that the unconsented use of a drug producing temporary paralysis and respiratory arrest (as a part of an experimental treatment pro- gram) could raise serious first and eighth amendment questions. A few statutes give prisoners the right to withhold consent or refuse treatment. unless the situation is a medical emergency.*'* Overall, however, the law supporting a prisoner’s right to refuse treatment that is not experimental or highly intrusive is rather thin. Arguments have been made, particularly against behavior modifi- cation programs, on the basis of privacy*!* or “freedom of menta- tion.”?!5 But the emphasis upon behavior modification as a threat to privacy of this type is misplaced. Most behavior modification programs have well-defined behavioral goals, and, in correctional settings, these goals are usually related to specific illegal behaviors. Behavior modification, as the name implies, focuses upon behavior. Researchers in the area of behavior modification are particularly noted for their reluctance to deal with mental processes and for their emphasis upon changing the external environment, e.g., the use of reinforcers such as tokens or money. In theory, and usually in practice, behavior modification is less intrusive upon mental processes than the “mind modification” techniques of psycho- analysis, psychotherapy, counseling, and group discussion. These techniques focus upon changing thought processes, inner experi- ences, perceptions, and social relationships in order to change behavior. But to argue that required participation in these commonly used therapies is impermissible because of a right to privacy of prisoners is to interpret the law far beyond where it currently is.**° In a penal context, the right to privacy may be justifiably limited by the offender’s prior acts and the compelling interests of the State. The prior act is a criminal offense which places the State in a special, perhaps privileged, relationship to the prisoner.*'? Con- sent to State actions that would ordinarily be invasions of privacy may be inferred from the prior acts of the offender. By analogy, under the doctrine of implied consent, blood-alcohol tests may be taken subsequent to an unlawful act.*’® The right to privacy act may be a reciprocal right premised on the absence of a prior incursion upon the related rights of others. ''SPECIAL ISSUES 67 The right to refuse treatment can, of course, be expanded by legislative or judicial action. Some impetus in this direction has been provided by the idea that confinement is primarily for those who morally deserve it (their ‘just deserts”) rather than for treat- ment.*!? Furthermore, rehabilitation is not very effective and allows for much abuse of prisoners in the name of treatment. These arguments need to be taken seriously, and they may someday become the dominant view. But the rehabilitative purpose of the correctional system still finds much legal support,*?° even though it is far too often an ideal rather than an accomplishment. The “just deserts” model of imprisonment may not foreclose all enforced treatment because offenders may “‘deserve” treatment. The deserved consequences of moral blameworthiness need not be limited to the physical confinement of the person. A person with typhoid fever who refused treatment may nevertheless ‘‘deserve” treatment sufficiently for the State to impose it. The blameworth- iness attached to this situation in which treatment is enforced is not the illness of the patient per se, but the lack of social respon- sibility or the callousness on the part of the patient who exposes others to harm or great risk. Legally, if the State has a compelling interest, treatment may be imposed without consent.*?! Similarly, offenders may “deserve’’ treatment, not because they are “sick” per se, but because of a blameworthy irresponsibility in the man- agement of their behavior which places others at risk. Because of the divergent views on the right of prisoners to re- fuse treatment, procedures might be developed to accommodate the various concerns. A Human Rights Committee, or similar group, might be established as proposed with mental patients.°*?? Prisoners who refused treatment or were concerned about it could bring the issue to the committee. Before allowing unconsented treatment in this situation, the committee would have to reach several conclu- sions: (1) There is a compelling State interest, e.g., the prisoner should present a very substantial risk of harm to others. (2) The proposed treatment is reasonably related to the State interest, e.g., there would have to be a very substantial likelihood that the treat- ment would be effective. (Ineffective treatment is not reasonably related to the purpose of the intervention and thus raises a due process issue.) (3) The proposed treatment conforms to profes- sional accepted standards of practice. (4) Procedures for periodic and on-site review of the treatment have been arranged in light of the risk and intrusiveness of the proposed treatment. (5) As nearly as can be determined, the proposed treatment meets constitutional and other legal requirements. Decisions of the committee are sub- ject to judicial review. ''68 LEGAL ASPECTS OF ENFORCED TREATMENT Although prisoners may have no right to refuse treatment or rehabilitative efforts, they do at least have a right to refuse un- constitutional interventions presented in the guise of treatment. Procedures should be developed to help prisoners avoid such legal and personal harm. “Least Restrictive Alternative’ Doctrine Within the past decade, the doctrine of the “least restrictive alternative” has found rapidly increasing use in determining the treatment that may be imposed upon patients and prisoners. This doctrine is not so much a firm constitutional principal as a “‘judi- cial interpretive tool’*?* that requires the State to achieve its legitimate objectives by those means that least infringe upon personal liberties. One of the early expressions of this doctrine was in Lake v. Cameron>** in which the court required the hospital to find an alternative to the hospitalization of a woman unable to care for herself. The court noted that the burden of finding an alternative to her institutionalization rested with the Government which was much more able to determine alternatives than she. Although this doctrine has had considerable judicial support in theory,°*** in practice the doctrine has not been fully utilized. This may be in large measure because courts do not have the time, institutions do not have the interest, and attorneys do not have the necessary information.*”° The least restrictive alternative has also found considerable ex- pression in the newer civil commitment statutes. In Rhode Island, prior to certification (commitment) of a patient, the court must find that the person’s unsupervised care in the community creates a likelihood of serious harm and that “‘all alternatives to certifica- tion have been investigated and deemed unsuitable.’*?” The Michi- gan civil commitment statute is equally explicit: ‘‘Prior to ordering _ any course of treatment, the court shall determine whether there exists an available program of treatment for the individual which is an alternative to hospitalization. The court shall not order hospitali- zation without a thorough consideration of available alternatives.’°?® Even in the absence of express statutory language, courts probably interpret many commitment statutes as allowing the use of alterna- tives to commitment when the alternatives are consonant with effective treatment and the safety of the patient and others.**® (This is particularly feasible when the statute provides for the care and treatment of patients, as most statutes do.)**° ''SPECIAL ISSUES 69 The doctrine may also be applied to deprivations occurring within an institution.**! The Wyatt court required each patient’s treatment plan to contain ‘‘a statement of the least restrictive con- ditions necessary to achieve the purposes of commitment.”°°? One example of the use of less restrictive alternatives within an institu- tion is the graduated transfer of patients from large to small living units. The application of this doctrine does not automatically result in the release of the patient or the prevention of intrusive forms of treatment. In Price v. Sheppard,**? the court applied the doctrine and found no liability for the unconsented use of electroshock treatment on a minor. The development of the least restrictive alternative doctrine in the area of corrections has been somewhat less rapid than in the area of mental health. Its application has been particularly vigorous with regard to first amendment rights within the prison setting. In supporting claims for a special diet based on religious belief, the court in Barnett v. Rodgers*** quoted with approval a Supreme Court statement. ‘‘[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’’**> Similarly, Cochran v. Rowe***® supported a religious claim because least restrictive means were not used to achieve a legitimate State interest. The doctrine has also been used in determining alternatives to institutionalization for juveniles.°°” The least restrictive alternative doctrine has not escaped some criticism. Saper has observed: The “least restrictive alternative” concept that has emerged from some recent court opinions has tended to unhinge the vital connection between the treatment of choice principle and the freedom of the mental health practitioner to select, in the exercise of his professional judgment, the best treatment modality. The important question is not how restrictive an alternative is, but how effective it is in producing positive change. By ignoring this question, the courts seem to have suffered a serious lapse in reason and perspective.*** The point is an important one and a sensitive one. It is possible that what appears to be an immediate, least restrictive alternative may in the course of time become only an expedient and unfortunate choice. Effective treatment may require detention after the condi- tion that led to confinement is no longer apparent. That was the opinion of the majority in State v. Carter.**? The problem here seems to be one of specifying the goal of treatment and the legitimate State interest to be served by treatment. That goal may be a rapid ''70 LEGAL ASPECTS OF ENFORCED TREATMENT restoration of the patient and release, or it may be long-term treat- ment with the hope of less failure in the community. The selection of the treatment goals depends upon factors such as the expected effectiveness of the treatment, the predicted dangerousness of the patient, and the extent of the deprivations involved. Because of the complexity of the issues and the need to balance competing inter- ests, there should be an interdisciplinary attempt to reach agree- ment on the goal.**° Baer and Budd**' have illustrated how the doctrine of the least restrictive alternative is applicable to a behavioral treatment meth- odology, contingency management. In contingency management programs, reinforcers (‘‘rewards’’) are made contingent upon spe- cified behaviors. They suggest that “‘staff workers should employ the mildest contingency programs that are effective in achieving desired changes in behavior. The doctrine also implies that, in order to discover the mildest effective program, the staff should first try very mild contingencies and proceed gradually to stronger con- tingencies only when weaker treatments prove ineffective. This approach seems very reasonable in principle, and it is likely that behavioral psychologists often apply this doctrine on an informal basis when designing reinforcement systems.’’**? To implement the least restrictive alternative doctrine more broadly in institutions, Martin***? has outlined 10 useful steps. These steps, somewhat modified, include the following: (1) Deter- mine the alternatives within the system. (2) Remove artificial barriers that would otherwise make an alternative suitable. (3) Examine what other institutions offer and contract for or share services. (4) Evaluate the effectiveness of the treatment alterna- tives. (5) Establish machinery for the efficient transfer of patients from one alternative to another. (6) Place patients in the least restrictive alternative appropriate to the treatment goal. (7) Docu- ment why any less restrictive alternative would not be suitable. (8) Annually, or more often, evaluate patient progress. (9) Change placement when treatment is not meeting the treatment goal or when progress indicates transfer to a less restrictive alternative can be made. (10) When patients are ready to move out of the system into another setting, continue service until the new place- ment begins. Conditional Release Programs The doctrine of the least restrictive alternative has lead to an increased use of conditional release programs (also known as ''SPECIAL ISSUES 71 convalescent, visitation, and furlough programs). The Wyatt court required the mental health authorities to provide ‘adequate transi- tional treatment” for patients leaving the hospital.*** The court indicated the possible use of standard treatment programs as well as “treatment in the home by a visiting therapist.’°*5 There has been broad judicial recognition of the legal and personal desirability of having a wide spectrum of treatment alternatives. The court in Covington v. Harris suggested that patients should be given the opportunity for ‘controlled experiments with freedom.’’>*° The use of conditional release as part of a patient’s aftercare has sometimes been characterized as aftercare or community care.**’ There are many possible combinations of programs; a patient might, for example, start the day in a group therapy session at a mental health center, work during the afternoon in a sheltered workshop, spend the evening at a mental hospital, and sleep at a halfway house.*** Family care, placement of the patient with a family other than his own, is one of the oldest forms of community care and one that is currently becoming more popular. Most State commitment statutes contain provisions for condi- tional release. (For a list of statutes, see Appendix E.) The Wash- ington statute is fairly typical: When, in the opinion of the superintendent or the professional person in charge of the hospital or facility providing involun- tary treatment, the committed person can be appropriately served by outpatient care prior to the expiration of the period of commitment, then such outpatient care may be required as a condition for early release for a period, which, when added to the inpatient treatment period, shall not exceed the period of commitment. If the hospital or facility designated to pro- vide outpatient care is other than the facility providing invol- untary treatment, the outpatient facility so designated must agree in writing to assume such responsibility. A copy of the conditions for early release shall be given to the patient, the designated county mental health professional in the county in which the patient is to receive outpatient treatment, and to the court of original commitment.°**° Detailed procedures are then specified for the revocation of the conditional release status. In contrast, the furlough provision of the Texas statute reads, “The head of a mental hospital may, after examination, furlough an improved patient and may at any time, by order, re-hospitalize a furloughed patient, provided that the patient’s mental condition warrants re-hospitalization. A patient on furlough remains subject to the orders of the head of the hospital.’°°° An Oregon statute ''72 LEGAL ASPECTS OF ENFORCED TREATMENT allows “conditional release’? to an individual as an alternative to involuntary commitment**’ and permits “trial visits” after com- mitment. “The division may grant a trial visit to a patient for any period of time, up to 180 days, under such general conditions as it shall prescribe during such patient’s period of commitment.’’**? The criteria and procedures for conditional release vary widely among the States. Most statutes seem to focus upon either the pa- tient’s improved mental condition or his best interests in determin- ing his suitability for conditional release. However, at least 10 statutes also include consideration for the safety of the public.***? Most States allow the release of patients upon a determination of suitabil- ity by mental health authorities, but a substantial minority require the prior notification of a court or a judicial hearing.*** The num- ber of States allowing conditional release has increased within the last few years.*°* Typically, the conditions of release require the patient to take medication and to participate in some form of therapy.°*° Even if a patient in the hospital was not compelled to accept these treat- ment conditions, such conditions may be legally permissible for release because the patient has consented to them or waived his rights (either expressly or by implication) through voluntary accept- ance of the program. In People v. Del Guidice,**’ the court ordered a patient to be re- leased from a mental hospital under specific conditions. He was to report once each week for aftercare and observation during a 5-year period. Also, if he failed to appear for his weekly “‘examination and/or therapy” without good cause, that was to be reported im- mediately to the court. In United States v. Charnizon,*** the pa- tient was released by the hospital under the conditions that he live at the home of his mother, establish contact with a specific clinic, and maintain contact with the hospital. He further agreed he could be returned to the hospital if, in the opinion of the phy- sicians treating him, he did not demonstrate a suitable adjustment to the community. He failed to abide by the terms of his release by going to a distant State and accumulating a hotel bill of $2,701.00 which he paid with a bad check. (This was the same type of offense for which the patient had been previously found not guilty by rea- son of insanity.) The court approved in dicta the conditions of his release and allowed the revocation of his conditional release status. The revocation of the conditional release status has usually oc- curred at the discretion of the hospital. The Kansas statute is characteristic: The head of the treatment facility shall have the authority to change the plan or place of treatment whenever he or she deems ''SPECIAL ISSUES 73 it necessary for the welfare of the patient. Such authority shall include the right to revoke the release on convalescent status and to order the patient readmitted to the treatment facility. The head of the treatment facility may authorize and order any peace officer or other person to take into custody and transport the patient to a treatment facility.**° Increasingly, however, the courts have been applying due process protections on the revocation process. This is particularly true when the patient has been in the community for a long period of time, e.g., 90 days or longer. Originally, under California statute, if an outpatient supervisor and the head of the local mental health facil- ity agreed, the patient’s conditional release status could be revoked. The court in In re Anderson*® found that constitutional due process safeguards would not permit this. The court set forth the following requirements: (1) prompt written notice of the charges and evidence against the patient justifying recommitment, and notice of the right to challenge the allegations at a full revocation hearing; (2) a revocation hearing held by a neutral hearing body, such as the Department of Health, in which the patient has the right to have the evidence against him disclosed, to confront and cross- examine witnesses, and to have a written statement by the fact finder as to the reasons for revoking his outpatient status.*°' In the event of an emergency, the court allows the return of the patient to a hospital and requires a hearing as soon as reasonably possible. These procedural requirements go considerably further than those procedures now commonly used in practice and required in most statutes. Although some statutes require a hearing, others require only the notification of a court (or endorsement by a judge) when the conditional release status is to be revoked.*®? In Oregon, a distinction is made between patients who have been in the com- munity for less than 90 days and those over 90 days. Those in the community for 90 days or more have the right to a hearing.*®* Al- though the law is only developing in this area, it is fairly clear that revocation should at least not be done summarily based upon rumor and without an examination of the patient. There are many parallels between conditional release and the parole of prisoners. Parole boards are given considerable discretion, and treatment may be required as a condition of parole. An of- fender may be required as an alternative to imprisonment to go through a graduated series of treatment-oriented placements.*®* Par- ticipation in a methadone maintenance program may be required.*°* Psychiatric treatment may be made a condition of parole.*°* A 305-654 0 - 79 - 6 ''74 LEGAL ASPECTS OF ENFORCED TREATMENT civilly committed drug offender may be required to undergo testing for narcotics as a condition of his release in the community.*°’ The treatment conditions imposed after release (and during probation) should be reasonably related to the purpose of the State’s intervention. In People v. Dominguez,*®*® a case involving a probationer, the court developed a test which has been widely used to determine the appropriateness of conditions imposed during probation and parole. The court stated, ““A condition of probation which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality does not serve the statutory ends of probation and is invalid.”°°? The revocation of the parole status requires a hearing. That hear- ing should include due process protections, such as a written notice of the claimed violations, a disclosure to the parolee of the evidence against him, an opportunity to be heard and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses (unless there is good cause for not allowing this), a ‘“‘neutral and detached” hearing body, and a written statement of the evidence relied upon and reasons for revoking parole.*”° Prison- ers who are in temporary release programs also have a right to this type of hearing before their release status is revoked.*”! Ifa prisoner makes a specific and clear agreement with a correctional agency prior to his release into a treatment program, some of these require- ments may be waived.*”? There is, however, little legal or thera- peutic value in not providing these due process protections, except in situations of immediate and substantial danger to the parolee or others. Use of Habitual Offender Statutes Habitual offender statutes can be found in at least 39 jurisdic- tions, including the District of Columbia.*”* Most States leave the imposition of the penalty to the discretion of the judge. The statutes typically require only proof of prior convictions to become effective. Three States, however, require an additional finding by the court that the defendant has propensities toward the commission of addi- tional offenses or that an extended sentence is in the public inter- est.°”* Most States allow habitual offenders to be released to the community by action of the parole board, but a few States require prior approval by a court or a criminal justice agency.*”® In her extensive survey of habitual offender statutes, Sleffel notes that only a few of the statutes distinguish between violent and ''SPECIAL ISSUES 75 nonviolent offenses.*”° Most of the statutes do not even distinguish between serious and trivial felonies. The statutes seem to be used primarily by prosecutors in plea bargaining. The actual number of defendants sentenced under these statutes is probably small.*’’ In an intensive study by Petersilia et al.,°’* of 49 habitual offenders serving time in California for armed robbery, it was found that only one-third of them were threatened with the application of the California habitual offender statute. Formal charging under the statute was rare in spite of the fact that the group had accumulated over 313 arrests with a self-reported num- ber of 10,505 offenses—an average of 214 offenses per offender. Sleffel concludes from her study, ‘‘Operating together, these factors lead to one conclusion: habitual criminal laws, since they do not even by their own terms attempt to distinguish violent from non- violent offenders, and since they are subject to so much discretion, must be considered of little use in singling out and dealing with violent offenders.’?7° Except in a few cases in which adequate due process has not been provided or the sentence has been exceptionally harsh for the offense, habitual offender statutes have survived judicial scrutiny. In People v. Larson,**° the defendant had been convicted of two prior felonies—assault with a deadly weapon and conspiracy to commit burglary. His present offenses were aggravated robbery and conspiracy to commit aggravated robbery. On cruel and unusual punishment grounds, he challenged his sentence of 40 to 45 years in prison under the Colorado habitual offender statute. The court concluded that the sentence was not excessive or disproportionate, given the facts of the case, and was therefore constitutional. In Hart v. Coiner,**' a defendant was sentenced to life imprison- ment for three felonies, writing a bad check for $50.00, interstate transportation of forged checks worth $140.00, and perjury in his son’s murder trial. The court found the sentence disproportionate to the underlying offenses and in violation of the cruel and unusual punishment clause. In United States v. Kelly,*®? a defendant chal- lenged his lengthened sentence as a dangerous ‘“‘special offender’”’ under a Federal statute. A defendant is ‘“‘dangerous”’ according to the statute if a longer period of confinement is required for the ‘protection of the public from further criminal conduct by the defendant.”***? The court determined that the defendant’s sentence could not be lengthened because the Government failed to show with particularity why the defendant was dangerous in a manner that required a longer sentence to protect the public. Among the many criticisms of habitual offender statutes are vagueness and lack of proportionality, e.g., repeated trivial offenses ''76 LEGAL ASPECTS OF ENFORCED TREATMENT may result in sentences as long as repeated serious offenses. Also, the statutes often allow for discretion, either at sentencing or at release, which is based on the prediction of future criminal conduct. ‘““A number of these statutes rely heavily on assessments of person- ality traits and the prediction of violent behavior. These statutes seem to assume that such behavior can be predicted, in spite of the volume of literature pointing out the impossibility of making ac- curate predictions, the difficulties of overprediction, and the fre- quent lack of follow-up to determine whether predictions were correct.”*°* Thus, nondangerous persons may be confined on the basis of erroneous predictions of dangerousness. With a therapeutic model of imprisonment or civil commitment, so the argument goes, persons may then be preventively detained for the treatment of an underlying illness, problem, or disorder related to the predicted dangerousness. But because the dangerousness is less likely to occur than predicted, the treatment is useless and the confinement unfair or illegal. Courts face this issue of extended confinement for predicted dangerousness more often in the area of civil commitment than in the use of habitual offender statutes. Many of the problems, however, are similar for offenders in both contexts. In State v. Carter,**> the court discussed this issue with unusual explicitness. The patient walked into a police headquarters, where he shot and wounded an officer. He was found legally insane at the time of the offense and incompetent to stand trial. Initially, in the hospital, he talked repeatedly about killing himself or others. After approximately 5 years, the Supreme Court of New Jersey considered the patient’s conditional release. The majority of the court permitted the conditional release of the patient. As dicta, the majority commented: The danger which the patient poses to himself and others is clearly a factor to be considered in release proceedings. This is the standard utilized by New Jersey under Title 30 civil commitments. Dangerousness is not, however, the sole criterion for release. If the patient is in a state of remission and there are sufficient medical assurances that he will pose no threat to society, there may be no danger to be feared from his conditional release. There may, however, be a rehabilitative purpose in retaining the patient in the hospital if further progress can be made in “curing” his underlying condition. Public protection may demand prolonged confinement in hopes of eventual recovery and release.**° To this, Judge Clifford in a concurring and partially dissenting opinion replied: ''SPECIAL ISSUES 77 If this statement is intended to suggest that the state can take it upon itself to act in loco parentis to “‘rehabilitate’’ an in- voluntary civilly committed patient, I think the notion is nothing short of reprehensible. It is “big brotherism”’ at its worst. It amounts to the state taking over someone never convicted of a crime and, lacking the ‘“‘dangerousness”’ element, saying ‘“‘we think it is for your own benefit to be locked up for a lifetime.” °°” This type of problem is caused in part by the problem of pre- dicting dangerousness. But the frequent statement that ‘‘danger- ousness cannot be predicted’’ is both correct and incorrect. It is largely correct with regard to the prediction of the dangerousness of a typical group of involuntarily committed mental patients. It is probably true with regard to the prediction of the dangerousness of a group of habitual offenders. But it may not be true with regard to the prediction of the dangerousness of specific offenders. That is, although group predictions may not be suitably valid, individual predictions in certain extreme cases may be quite accurate. The validity of group predictions may depend in part upon the num- ber of extreme cases in the group accurately predicted. Levine*®* has discussed this possibility: ‘“‘There is the lingering possibility—which will die hard—that the claims of clinical psy- chiatrists and psychologists have some validity, that there are some few—perhaps very few—people about whom a valid prediction can be made.”°°? He then cites the study of Walker et al.*°° who found in their study of 4,301 offenders the usual problem of false positive errors (overprediction of the dangerousness of the group). Walker et al. also found that the likelihood of further convictions for crimes of violence increased directly with the number of previous convictions for crimes of violence. There was a 12 percent likelihood of another conviction after one prior conviction, a 67 percent likelihood of another conviction after four prior convictions. Levine concludes: What is relevant here is that after five convictions the rate goes to 100 percent—but on the basis of only 2 cases. In other words, from the original sample of 4,301 men, 264 committed one or more crimes of violence. Of these 264, 2 men committed five crimes of violence; both of them went on and committed a sixth and a seventh crime of violence. If one would have pre- dicted that five convictions lead to further convictions, there would have been no false positives and no false negatives.°?! As a clinical example, consider the case of Stephen Nash who committed 16 (or more) murders. Nash claimed that he had at one time been falsely imprisoned for 10 years. When he got out, he de- cided that society owed him 100 times the 10 years he had served. ''78 LEGAL ASPECTS OF ENFORCED TREATMENT He figured the average life expectancy of a person at 65 years. After Nash killed a person, he would then subtract that person’s age from 65. The difference would give him the years paid back to him by society. He figured that when he reached 1,000 years, he and soci- ety would be even. Young persons under his scheme would, of course, be more efficient to kill than older persons because their life expectancy would be longer than that of the older persons. The involuntary confinement of Nash in a mental hospital on the basis of predicted dangerousness was probably not unreasonable. There is little doubt that the overprediction of dangerousness should be reduced and, if possible, eliminated. To accomplish this, it has sometimes been suggested that the confinement of offenders ought to be decided only (or primarily) on the basis of past offense without regard to probable future conduct. Such a solution may, however, unnecessarily eliminate the social benefits of valid pre- dictions of dangerousness. Some accommodation of these perspec- tives has been proposed by Wilkins*®? who asks how many false positive persons it would be reasonable to confine in order to be sure that true positive cases were also confined. What numbers would represent a morally acceptable ratio between the true and the false positive cases? This ratio, he suggests, should be quite high when the persons involved are normal citizens; i.e., there should be very few false positive predictions. This ratio might reasonably be reduced when the persons involved have already committed vio- lent crimes. This might be called the use of adjusted predictive ratios. Although Sleffel is in favor of using a ‘‘just deserts’? model of fixed sentences, some of her recommendations are compatible with the suggestion just described of adjusted predictive ratios. She noted that: ‘Since violent offenses must be dealt with under the same legal principles that apply to other criminal sanctions, there is no need for a special body of statutes directed toward violent offend- ers. They could establish no special powers and would serve no real purpose.’’°*? With regard to sentencing: Repeat offenders should be subject to a series of measured increases in sentences for each successive offense. A small increase with each offense is more fair and more rational than a drastic increase in penalty upon a specific number of offenses, as under present habitual criminal statutes. The added penalty should be calculated as a percentage of the sentence for the present offense; statutes drafted in this way can impose added punishment for persistent criminality, while avoiding the incongruity of sentences that are grossly out of proportion to the penalty for the present offense. Per- haps the simplest way of drafting this kind of statute would ''SPECIAL ISSUES 719 be to make the record of previous convictions one of the ag- gravating factors to be considered under general sentencing procedures.?*4 The recommendation of an increasing penalty calculated as a percentage of the sentence for the present offense is creative. It appears somewhat similar to the model of graduated income tax. The gradually increased penalties for each offense could be con- sidered a kind of ‘criminal tax’’ on illegal conduct. The lengthened sentences would have an effect similar to increasing predictive ratios, i.e., under both schemes confinement would be lengthened, thus producing a corresponding likelihood that false positive cases would be confined. Whether lengthened sentences have any specific deter- rent effect beyond that produced by the aging of the offenders is a matter open to question.®*® Mentally Incompetent Offenders The usual treatment agreement involves two major areas of law: tort law and contract law. The incompetency ofa patient or prisoner to make treatment decisions has different consequences in each area of law. In the area of tort law, the most frequent issue is the competency of the person to consent to treatment. In situations where the competency of the person is in question, the legally conservative approach is to request a judicial hearing on the person’s competency to consent which reduces the subsequent likelihood of legal liability for technical assault and battery (or malpractice) resulting from an invalid consent to treatment. An alternative, more flexible approach is through a Human Rights Committee as previously discussed. **° Approval of treatment by the committee probably involves minimal risk of future liability. The easy access to this type of a committee may be important to confined persons as well as staff because the competency of a person to make treatment decisions may vary dur- ing the period of confinement. A person initially incompetent may become competent, or the reverse may occur. A common problem is determining when a person is incompetent. In most jurisdictions, the involuntary commitment of a patient to a hospital does not mean that the patient is incompetent to make treatment decisions. Although the competency of the person is ultimately a legal matter, clinical judgment about it is necessary in order to decide when there may be a problem. Five criteria for determining competency to consent to treatment have been deline- ated by Roth, Meisel, and Lidz.°*°’ Briefly, the criteria may be summarized as follows: ''80 LEGAL ASPECTS OF ENFORCED TREATMENT (1) A competent person should be able to indicate a choice or preference for or against a proposed treatment. The failure, for example, of a mute schizophrenic patient to indicate a choice or protest suggests incompetency. (2) A competent person should make a choice about treatment that appears “‘reasonable.’’ The focus here is on the outcome of the person’s decisionmaking process, not on the process itself. ‘‘Reason- able”’ decisions are also sometimes considered to be ‘“‘right,”’ ‘‘wise,”’ or “responsible.” There is considerable judicial intolerance for de- cisions about treatment that seem unreasonable in outcome,*”® as illustrated by the frequent failure of the courts to honor decisions in which patients refuse a lifesaving medication or procedure, e.g., a blood transfusion. However, “If the reasonableness of a refusal is to be measured against the standards of the medical profession, there is little left to be protected by a rule that lets the patient choose in the first instance. There might as well be initial acquiescence to medical decisionmaking.” °°? (3) A competent person should base his choice about treatment on “rational” reasons. The patient’s decision should not be the product or consequence of mental illness. An example is a woman’s refusal of blood tests by saying, ‘“‘You just want my blood to spread it all over Pittsburgh. No, I’m not giving it.’’*°° Her choice was respected until later in the day when her blood pressure became extremely elevated (250 over 135). Blood was then withdrawn against her will. One problem with the use of this criterion in assess- ing competency is the difficulty in proving a relationship between the person’s refusal of treatment and his irrationality. Thus, a de- lusional person may refuse a treatment not for irrational reasons but because of fear or the pain involved which are reasonable grounds for refusal. (4) A competent person should have the ability to understand the risks, benefits, and alternatives to treatment. This ability is the criterion most often used in tests of competency to consent. The focus here is on the person’s capacity to understand or comprehend, which does not have to be perfect or near perfect to be legally sufficient. However, this criterion of competency requires infer- ences to be made about the person’s mental processes. (5) A competent person should have an actual understanding of the risks, benefits, and alternatives to treatment. There is a difference between the ability or capacity to understand and actual understanding. A person with the ability to understand relevant information may not in actuality understand it; but if the person is sufficiently motivated and has the capacity and information, actual understanding may be reasonably inferred, unless there is ''SPECIAL ISSUES 81 evidence to the contrary. The courts generally require a potential for understanding rather than an understanding in fact of the in- formation disclosed.*°! These five criteria are not to be applied mechanically. The com- petency of the patient to consent or to refuse treatment may be weighed against the risks and benefits of the proposed treatment. As Roth et al. suggest, “[W]ithin limits and when the patient’s competency is not absolutely clear-cut, a test of competency that will achieve the desired medical or social end despite the actual condition of the patient may be selected. We do not imply that this is done maliciously either by physicians or by the courts; rather, we believe that it occurs as a consequence of the strong societal bias in favor of treating treatable patients so long as it does not expose them to serious risks.’’*°? Once the issue of competency to consent to treatment has been raised, it is necessary for a practitioner, a mental health authority, committee, or court to decide the matter. In situations of ambigu- ity about the person’s competency, it is desirable to have rules or standards to guide the decisionmaking process. Wexler*®? has developed a diagram which represents suggested decisions regarding the imposition of treatment. Figure 1 Client Competence Yes No Unsure 2 _ Unstated Qualified / Approval Client 4 5 spe 6 Preference No Disapprove Rualitied Disapprove Yes | meen 8 Qualified |9 Qualified pprove Approval Approval According to this diagram, if a person is clearly competent, his preference about treatment is followed. His refusal of treatment is honored, and a committee (or other decisionmaker) reviewing the proposed treatment disapproves it. If the person is incompetent and does not want treatment, the committee can, under proper conditions, give qualified approval for the treatment. Qualified approval means approval given when the committee finds that less drastic treatment procedures are unsuitable and that the pro- posed treatment is (in an anticipated cost-benefit sense) in the best interest of the person. If the committee does not feel that these conditions are met, a qualified approval becomes a disapproval. In situations where the person is neither clearly competent nor incompetent, the decision rule is to assume the person is competent. ''82 LEGAL ASPECTS OF ENFORCED TREATMENT This rule favors personal autonomy. As shown in the diagram, when the committee is unsure of the person’s competency, the person’s preference is followed. Therefore, if he prefers no treatment, the proposed treatment is disapproved. The procedure outlined here may not be the most appropriate in all circumstances. It illustrates, however, the desirability of having available review procedures and decision rules in situations of am- biguity. Such situations may arise frequently when working with marginally competent persons. ‘The determination that a patient or prisoner is incompetent to enter into contracts usually requires a special judicial hearing. The person’s commitment does not necessarily render him contractually incompetent, but it may put the other party on notice. Usually the contracts of an incompetent (‘‘insane”’) person are voidable. If the contract is not void to begin with, it usually can be later dis- affirmed or avoided by the incompetent person who has entered into the contract should this person later become competent. If the person remains incompetent, his guardian may disaffirm or avoid the contract. Usually, if a guardian has been appointed, the patient may not enter into contracts. The legal position of the other party to the contract is quite different. This party must perform his part of the agreement unless the contract is void to begin with or is later disaffirmed or avoided by the incompetent person or his guardian. The most common treatment contract is the one between the therapist and the private patient. The patient, even though dis- turbed, is still required to pay. If the patient becomes legally in- competent, the therapist may make the contract with the guardian. In institutions, the competent patient is obligated by his contracts, e.g., the employment of an attorney to represent him in court. Because therapists stand in a special, fiduciary relationship to their clients or patients and because they are aware of the patient’s mental status, they may not take unfair advantage of a contract. In situations in which the contractual competency of the patient is unclear, a liberal policy of allowing patients to avoid treatment contracts when they are later clearly competent may protect personal autonomy. ''CHAPTER 5 Conclusion In an area as complex and contradictory as mental health law, valid generalizations are difficult. Sometimes a generalization or legal rule has so many exceptions that the rule, as the saying goes, is swallowed up by the exceptions. Nevertheless, it is useful to formulate tentative generalizations and to suggest major exceptions. There is a difference between what the law is and what the writer, prisoners, patients, legislators, and the public want. The focus here is largely upon what the law is, not what it ought to be. Mentally competent, involuntarily committed mental patients have a right to refuse treatment. The fact of their involuntary com- mitment does not, in most jurisdictions, make them incompetent with regard to treatment decisions. Their consent, or court approval, must therefore be obtained prior to initiating treatment. Mental patients have a widely recognized right to treatment. This right does not impose upon them an obligation to accept treatment. The right to treatment, like the right to vote, provides an option rather than an obligation. Mentally competent prisoners generally do not have a legally recognized right to refuse standard forms of treatment. There is, however, a strong policy trend toward a right to refuse treatment for prisoners which has found expression in some legal writings, draft statutes, and a few cases. In general, the cases establish certain procedures for obtaining consent from prisoners prior to initiating hazardous or exceptionally intrusive treatment. By withholding consent, prisoners or patients may effectively avoid (refuse) intru- sive treatment. The cases most often cited as supporting a general right to refuse treatment have involved treatment that was either palpably unreasonable or experimental rather than treatment meet- ing professionally recognized standards. Treatment may be imposed upon patients or prisoners who are mentally incompetent to make treatment decisions after legally required procedures have been followed. The determination as to whether a person is incompetent in this matter should be made at a judicial hearing. A finding as to the person’s competency to make treatment decisions may be determined at the person’s commitment hearing. 83 ''84 LEGAL ASPECTS OF ENFORCED TREATMENT Patients may be committed under the State’s parens patriae power (for their own welfare) or its police power (for the protec- tion of others). There is substantial opinion that only patients incompetent to make treatment decisions should be committed under the parens patriae power. In fact, this does not happen, and therefore a separate finding regarding treatment competency is usually required. Many patients committed under the State’s police power (so-called “dangerous” patients) are mentally competent to make treatment decisions. Being competent, they may refuse treat- ment. If they do refuse treatment, however, they may not then claim that their right to treatment is being violated or that they should be released from the hospital. Procedures for imposing treatment and the nature of the treat- ment itself must conform to constitutional requirements. Treat- ment that involves an involuntary, substantial loss of previously enjoyed and expected rights should be preceded by a due process hearing with a notice of the pending action, the opportunity to be heard, and other procedural protections. Treatment methods are being increasingly subjected to judicial scrutiny so that they do not violate constitutional doctrines of cruel and unusual punishments, substantive due process, equal protection, privacy, and others. The type of treatment imposed and its intrusiveness may be further limited by the doctrine of the “least restrictive alternative’? which requires the State to use those means that least infringe upon personal liberties. Prior to treatment, consent or substituted consent should be obtained to avoid liability for technical assault and battery or malpractice. In addition, treatment contracts may be used to clarify the rights, duties, and expectations of the patients as clients and staff. Commitment or imprisonment itself does not deprive a person of the legal power to enter into contracts for treatment. The deter- mination of incompetency to contract usually requires judicial hearing. Many new commitment statutes expressly preserve the patient’s right to contract. Abuse of patient’s rights through unfair contracts is limited by traditional contract doctrines such as fraud, misrepresentation, duress, and unconscionability. Increasingly, there are limits being placed upon the enforced treatment of offenders. New conceptualizations in the mental health area, e.g., the difficulties in predicting dangerousness, affect judicial decisions and legislative action. The result is the develop- ment of new legal trends and counter-trends, the emergence of new rights and limiting doctrines. The current developments reflect this process of always somewhat attempting, unsuccessfully, to balance competing personal interests and social interests. ''APPENDIXES Appendix A Bill of Rights and Related Amendments Amendment 1 Congress shall make no law respecting an establishment of reli- gion, or prohibiting the free exercise thereof; or abridging the free- dom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Amendment 2 A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Amendment 3 No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Amendment 4 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment 5 No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or 85 ''86 LEGAL ASPECTS OF ENFORCED TREATMENT property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment 6 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Council for his defence. Amendment 7 In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the com- mon law. Amendment 8 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment 9 The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment 10 The powers not delegated to the United States by the Constitu- tion, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Amendment 13 Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. ... ''APPENDIXES 87 Amendment 14 Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any per- son of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.... Amendment 15 Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. ... Amendment 19 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex... . Amendment 26 The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. ''Appendix B Glossary of Terms and Concepts Acceptance: an unqualified assent to the act or proposal of another of an offer to make a contract, of goods delivered by the seller or of a gift or a deed. Action: a proceeding brought to enforce any right. Amicus curiae: a friend of the court. Also a person who has no right to appear in a suit but is allowed to introduce argument, author- ity, or evidence to protect his interests. Appellant: the party who takes an appeal from one court or juris- diction to another. Appellee: the party in a cause against whom an appeal is taken; that is, the party who has an interest adverse to setting aside or reversing the judgment. Behavior modification: the application of principles of learning to change behavior so that unwanted behaviors are reduced or eliminated and wanted behaviors are increased or intensified, e.g., “Behavior modification programs have as their primary purpose the reinforcing of good behavior with artificial rewards in an or- ganized and systematic fashion so that an individual will move toward a goal or set of goals that will eventually provide their own natural reinforcements. For example, a student might be given additional hours off the institutional grounds at a special event as a reward for finishing a vocational assignment. As the student gradually develops vocational skills, the rewards can be withdrawn and the vocational skills will take on their own natural reinforcing characteristics, i.e., the ability to obtain a job and earn money.” Morgan v. Sproat, 4382 F. Supp. 11380, 1147, n. 33 (S.D. Miss. 1977). Case law: the aggregate of reported cases forming a body of juris- prudence, or the law of a particular subject as evidenced or formed by the adjudged cases, in distinction to statutes and other sources of law. Certiorari: the name of a writ of review or inquiry. Certiorari is an appellate proceeding for re-examination of action of inferior tribunal or as auxiliary process to enable appellate court to obtain further information in pending case. In case citations, the history of the case may indicate cert. granted or cert. denied. 88 ''APPENDIXES 89 Classical conditioning: pairing a neutral stimulus (CS) with an unconditional stimulus (UCS) which elicits a response. Con- ditioning has occurred when the CS produces a response similar to the one originally produced by the UCS. In the typical classi- cal conditioning process, the CS is followed by the UCS with a delay of only tenths of a second up to 3 or 4 seconds. This procedure is also known as Pavlovian conditioning. Consideration: the promise or performance by the other party that the promisor demands as the price of his promise. Contract: a binding agreement based upon the genuine assent of the parties, made for a lawful object, between competent parties, in the form required by the law, and generally supported by consideration. Damages: a sum of money recovered to redress or make amends for the legal wrong or injury done. Dictum: an expression of opinion contained in the decision of a court upon some matter related to the subject of the decision itself. It does not have the force of a decision but may be cited in later legal arguments on issues on which the dictum bears directly. Due process of law: law in its regular course of administration through courts of justice. . .. Due process of law implies the right of a person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. Fiduciary: describing relationships of high trust and confidence. Guardians, trustees, executors, administrators, and the like are fiduciaries. Guardian ad Litem: one who is appointed by the court to protect the interests of a minor in a lawsuit. He is empowered to act in the child’s behalf until the case is concluded. Negative reinforcement: termination or removal of an aversive stimulus following the desired behavior. This increases the sub- sequent probability of the behavior. Overcorrection: a training technique which consists of a “restitu- tion” period immediately following disruptive or disapproved 305-654 0 - 79 - 7 ''90 LEGAL ASPECTS OF ENFORCED TREATMENT behavior during which the person is required to restore the dis- turbed situation to a greatly improved state;e.g., if the appearance of a room is disrupted by the person throwing furniture, the person would be required not only to put the furniture in the proper place but also to dust the furniture and sweep the carpet. Parens patriae: in the United States, the State, as a sovereign— referring to the sovereign power of guardianship over persons un- der disability, such as minors, and insane and incompetent persons. Pleading: the process performed by the parties to a suit or action, in alternately presenting written statements of their contention, each responsive to that which precedes, and each serving to nar- row the field of controversy until there evolves a single point, affirmed on one side and denied on the other, called the ‘‘issue” upon which they then go to trial. Positive reinforcement: presentation of stimuli (“‘rewards”’) follow- ing the desired behavior so that the subsequent probability of the behavior increases. Punishment: the presentation of an aversive stimulus or the removal of a positively reinforcing stimulus following a behavior. This decreases the subsequent probability of the behavior. Reinforcement: See ‘‘positive reinforcement” or ‘‘negative reinforcement.”’ Reinforcer: a stimulus (‘“‘reward”) presented following a behavior that increases the subsequent probability of that behavior oc- curring again. Remand: to send the case back to the same court out of which it came, for purpose of having some action on it there, e.g., when a prisoner is brought before a judge on habeas corpus for the pur- pose of obtaining liberty, the judge hears the case and either discharges him or remands him. Remedy: the means by which a right is enforced or the violation of a right is prevented, redressed, or compensated. Strictly speaking, “yemedy” is no part of the action, but is the result thereof, the object for which the action is presented, the end to which all the litigation is directed. Respondent: the party who makes an answer to a charge or the party who contends against an appeal. Scienter: knowledge, referring to those wrongs or crimes which re- quire a knowledge of wrong in order to constitute the offense. ''APPENDIXES 91 Token economy: a system of operant conditioning in which persons are reinforced (“rewarded”) for desired behaviors by tokens which can be exchanged for other reinforcers. Tort: a private injury or wrong arising from a breach of a duty cre- ated by law. Treatment: systematic intervention to cure, restore, or improve physical, mental, or behavioral disorders, e.g., treatment includes confinement and treatment in an institution and under supervised aftercare in the community and includes, but is not limited to, medical, educational, social, psychological, and vocational services, corrective and preventive guidance and training, and other rehabilitative services designed to protect the public and benefit the addict by eliminating his dependence on addicting drugs, or by controlling his dependence and his susceptibility to addiction. (18 U.S.C. § 2551/(c) (1966), as amended 1972.) Void agreement: an agreement that does not create a duty of per- formance. The breach of the agreement by one party does not give rise to a remedy for the other party. The agreement does not have legal validity. Voidable contract: a contract in which one or more of the parties may elect to avoid or to ratify the legal relations created by the contract. ''Appendix C Suggested Statute: Hazardous Treatment and Treatment Involving Unusual Discomfort * (i) A program of behavior therapy involving aversive stimuli or substantial deprivations must be recommended by a psychologist or psychiatrist trained and experienced in the administration of such programs. Such recommendations shall be in writing with de- tailed clinical justification and an explanation of which alternative treatments were considered and why they were rejected. Such recommendations shall be made only after consultation with other members of the treatment team and shall include a summary of the objectives of any member of the treatment team and the names of any such members so objecting. The recommendation must be approved by the professional person in charge of the treatment facility. (ii) It shall be the responsibility of the treating psychologist or psychiatrist to provide the respondent with complete and ac- curate information concerning the nature, purpose, risks and consequences of such behavior therapy if it were administered to him; conscientiously to assist the respondent in comprehending the significance of such information; and to identify any barriers to such comprehension in the recommendation to the Human Rights Committee or an addendum thereto. (iii) The treating psychiatrist’s or psychologist’s recommendation and copies thereof shall simultaneously be sent to the Human Rights Committee, the respondent and his attorney and to his guardian or conservator, if any. (iv) The Human Rights Committee may approve the administra- tion of the recommended program of behavior therapy, or approve the recommended program with changes either in the design of such therapy to reduce the intensity of any aversive stimuli or depriva- tions or in the conditions under which aversive stimuli or depriva- tions would be imposed, if it determines on the basis of evidence presented to it that, as approved: (A) The objectives of therapy are to improve the respondent’s mental condition and not primarily to serve the interests or conveni- ence of the treatment facility staff or other persons; (B) Administration of the therapy is clearly in the respond- ent’s best interests; 92 ''APPENDIXES 93 (C) The therapy is appropriate to the treatment of the respond- ent’s condition; (D) The therapy is a reasonable choice of treatment in accord- ance with least drastic means principles; (E) The treatment facility is adequately staffed and equipped to administer the therapy in a competent and humane manner and prepared to recognize and deal effectively with any adverse effects; and (F) The therapy is part of a more general plan of prompt and adequate treatment designed to improve the respondent’s mental condition. (v) All behavior therapy administered pursuant to this section 40 shall conform to the following conditions: (A) No aversive stimulus or deprivation which entails a sub- stantial risk of serious bodily harm may be imposed; (B) No respondent may be deprived of: (1) opportunities to participate in such religious services or practices as he customarily attends or engages in; (2) the right to receive visits from or to communicate with his attorney, physician, clergyman, the Mental Health Review Offi- cer, the Human Rights Committee or any judicial officer; (3) any indicated medical attention; (4) sufficient opportunities for rest and sleep consistent with his age and physical and mental condition; (5) access to bath and toilet facilities; or (6) a nutritionally sound, varied diet provided at ordinary meal times, except with the prior approval of and daily consultation with a qualified dietician and a licensed physician who has given the respondent an appropriate physical examination within ten days prior to the onset of any such deprivations; and (C) The use of electrical shocks must have the prior approval of a licensed physician who has given the respondent an appropriate physical examination prior to the onset of any program involving the use of electrical shocks. *Source.: Mental Health Law Project, Suggested Statute on Civil Commitment, §40. Hazardous Treatment and Treatment Involving Unusual Discomfort; Prior Human Rights Committee Approval and Mandatory Standards. Mental Disability Law Reporter, 2, 154-158, 1977. pp. 155-156. ''Appendix D IMlustrative Consent and Contract Forms The following consent and contract forms are not intended to be standard, suggested forms. They are presented here to illustrate various approaches that have been taken to problems in the area of treatment and consent. No representation is made as to their legal effect or validity in various jurisdictions. Permission of the authors and legal consultation should be obtained prior to their use. 94 ''APPENDIXES 95 UCLA NEUROPSYCHIATRIC INSTITUTE RESEARCH PROGRAM CAMARILLO CLINICAL RESEARCH UNIT Consent Form—A Program Participation I understand that I am participating in a program that is designed to teach new skills that may allow me to deal more effectively with stressful situations, social activities, and personal relationships. My program will be a 8 to 14 day treatment period in which I will receive instruction in the techniques of desen- sitization, assertion training, and family contracting. Each of these techniques has been described to me in detail. I understand that while I am participating in the treatment program, I will not receive antidepressant medications or tranquilizers. I will be permitted to continue other regularly prescribed medi- cations at the discretion of the program’s physician and that I will be per- mitted to consult my own physician at any time. I understand that the pro- gram makes use of two distinct approaches to treatment and that I have been assigned to one of these at random. I further understand that these two dif- ferent types of approaches to treatment constitute the experimental aspect of the overall treatment program. I also understand that this program is being evaluated to determine its effectiveness and that an important part of the evaluation will involve completing psychological questionnaires and personal interviews during the program and in five follow-up sessions at a community mental health center. I consent to participate in the program with the under- standing that my anonymity and confidentiality will be maintained. I understand that the program is entirely voluntary, and that I may with- draw at any time. I have had the program described to me and have been given an opportunity to ask questions and have them answered to my satisfaction. Date Signature of Patient Date Signature of Witness ''96 LEGAL ASPECTS OF ENFORCED TREATMENT Consent for Token Economy Project on Behalf of Incompetent Person I, the undersigned, in my capacity as legal guardian, consent to have [Name of patient] included in the Token Economy Program. T understand that this program will involve earning tokens by appropriate be- havior in order to pay for privileges, meals, and living accommodations. I understand visiting privileges and home leaves are encouraged; but such privil- eges will be dependent on the decision of the staff, based on the need and behavior of the individual patient. Leaves may be requested for one weekend per month (Friday evening to Sunday); visits for the day on Saturday or Sunday. I am aware that this program is directed toward either return home or family care placement; and that, whenever, upon the decision of the Ward Team, it is thought that such placement is appropriate, such plans will be made. (Signature of Guardian) (Signature of Patient, if available) (Signature of Witness) (Date) ''APPENDIXES 97 Consent Form I, , hereby knowingly and vol- (Name of person giving consent) untarily consent to my treatment (consent to the treatment of my child/ward ) by the and the professional staff (child’s name) of the +++. Such consent for treatment shall include all forms of treatment deemed necessary by the professional staff of said and shall include but shall not be limited to any of the following treatments, which are not crossed out: Individual Psychotherapy Group Psychotherapy Progressive Muscular Relaxation Hypnosis Systematic Densensitization Covert Sensitization Avoidance and Escape Conditioning Operant Conditioning Procedures Classical Conditioning Procedures Sensory Deprivation (Other) I further state that the above procedures have been fully explained to me and that I fully understand them. (Signature) Dated: (Witness) Adapted form: Peoria Mental Health Clinic, 1977. ''98 LEGAL ASPECTS OF ENFORCED TREATMENT TREATMENT CONTRACT Name of Client: Address: Telephone: Date of Birth: Name of Therapist: Title: Organization: Highest Academic Degree: License: This contract is: A. Original contract: Date B. Revised contract: Date Revision number: 123456 Note: Terms of original contract are considered to be effec- tive unless revised in writing. To the client: This contract specifies the terms of reference of the service which you are about to receive. Use of the contract is an indication of the therapist’s willing- ness to identify specific treatment goals, methods and effects. This is an aid to your receiving the service which you de- sire, in addition to being your assurance that the therapist is well aware and re- spectful of your basic rights in request- ing and receiving service. It is understood that you will carefully consider the terms of this contract, dis- cussing each provision with the therapist. When you have signed the contract you will have agreed to fully participate in the services described herein unless and until you either request a revision in one or more provisions of the contract or until you choose to terminate service. Please retain a copy of this contract for your reference and do not hesitate to suggest changes in the agreement over the course of the service which you: are about to receive. As problems are solved, treatment objectives and methods are often modified and, as a result, several contract revisions are common in each service undertaking. Copyright © 1975, by Richard B. Stuart Behavior Change Systems. All rights reserved. Research Press Co., 2612 N. Mattis Avenue Champaign, Illinois 61820 ''APPENDIXES 99 RE: Therapist 1. I, the above named therapist, certify that I am (circle one) duly licensed to offer the services described below or that I am working under the super- vision of who is so licensed. 2. I have assessed the client’s objective(s) and have identified the following goal(s) for treatment: 3. I propose to use the following intervention technique(s) in my effort to assist the client to achieve the above objective(s): a. This (these) technique(s) have been fully described in the following standard professional reference: b. The most recent comprehensive account of the clinical results achieved with this (these) technique(s) may be found in the following source(s): ''100 LEGAL ASPECTS OF ENFORCED TREATMENT 4. It is expected that this (these) intervention technique(s) will have the fol- lowing beneficial effects for the client by the dates specified: 5. It is also noted that this (these) intervention technique(s) may be associated with the following undesirable side effect(s): 6. Both the progress toward achieving the specified objectives and the potential side effects will be monitored continuously in the following way(s): ''APPENDIXES 101 RE: Client A. Date: Client Therapist I, the above named client, assert that I have discussed the above named objectives for the change of my behavior and that I consent to work toward the achievement of those objectives. I further assert that I have discussed the above named intervention tech- nique(s) with the therapist and that I consent to apply these techniques. I further assert that I shall provide the above named data in order to de- termine the effectiveness of the use of the intervention technique(s). I further assert that I have freely entered into this contract knowing the therapeutic objectives and both the positive and negative potential effects of the intervention technique(s). I further assert that I shall provide the therapist with the following com- pensation for his/her efforts in my behalf: I further assert that I have been assured of my right to terminate my participation in treatment at any time, for any reason, and without the need to offer an explanation and without penalty. I further specifically limit the use of any information which can in any way identify me to others unless I-have offered my specific, written permission. I further agree that I shall keep all scheduled appointments and shall give at least 48 hours notice of my intention to cancel any appointment. Other agreements: ''102 LEGAL ASPECTS OF ENFORCED TREATMENT A CONTINGENCY CONTRACT FOR THERAPY 1. Overview of problem and therapeutic program The overall objective of this therapeutic program is to develop and stabilize Mike’s behavior patterns so that he may be considered for admission to school this fall. In general, this will involve strengthening some requisite behaviors such as following commands from an adult, and eliminating others, such as the screaming and tantrumming that accompany most of his refusals to follow instructions. Mike has a discouraging behavior history for most teachers to consider working with. Because his characteristic reaction to requests is to throw tan- trums, he is considered ‘“‘untestable’’ by standard psychological means. This does not necessarily mean that he cannot do the items on a test, but rather that he has little or no control over his own behavior. His uncooperativeness quickly discourages most people from making much of an effort to work with him. What is clearly needed is an intensive rehabilitation program designed to enable Mike to build patterns of self-control which would lead to the elimination or drastic reduction of his disruptive behavior. This, in turn, would open other possibilities for developing Mike’s potential, that is, the avenues which are blocked by his unmanageable behavior. The overall goal of this 8-week program will be the development of self- control with its reciprocal outcome of decreasing or eliminating tantrums and disruptive behaviors. Implementation of this program will require that the child and his trainer engage in such activities as trips to the zoo, museums, parks, movies, swimming pools, shopping centers, supermarkets, and so on as well as having lunch and snacks together. These settings are included to expose Mike to a maximal number of normal situations where expectations of a standard of conduct are imposed by the setting itself. As much as possible, the techniques used in the day program will be designed with the ultimate objective of utilization in the home. An attempt will be made to see that procedures used in the program are transferred to home manage- ment at the termination of treatment. The therapist will give instructions weekly to the parents by phone to insure that efforts both at home and in rehabilitation do not conflict. II. Behavioral objectives of therapy 1. The objective of the therapeutic program is to teach Mike to comply with between 80-100 per cent of the verbal commands given to him by an adult(s). Compliance will be defined as Mike’s beginning to perform the be- havior specified by the command within 15 sec. after it has been stated and then completing the specified task. 2. In addition, we intend to eliminate or drastically reduce Mike’s excessive screaming and tantrumming. The goal is not to tantrum more frequently than once out of 30 commands and for no longer than 1 min at a time. 3. Evaluation of treatment outcome: The decision as to the attainment of these specific objectives will rest upon Mike’s performance during a 30 min test session to be conducted in a classroom situation. At this session the thera- pist, the parents, and an additional person will make 10 verbal requests each of Mike, for a total of 30 verbal requests. Mike must comply with 80-100 per cent of these requests for the program to be considered a success. In addition, he must have tantrummed not more than once, and for not more than 1 min, during this final evaluation. Il. Time and place of therapeutic intervention 1. The therapeutic program will start on SSS and terminate on___ CSCS, Evaluation Of thee effectiveness of treat- ment will be held on or about the termination date of the therapeutic program. ''APPENDIXES 103 2. Location: The meeting place will be at the__——(‘(C; Session activities, however, will involve time spent elsewhere, for example, having lunch, trips to shopping centers, amusements, and other special events. If the facility is not available, some other place agreeable can be designated as meeting and base center. 8. Days of training: Therapy sessions will be scheduled 5 days per week. The specific days may vary from week to week to comply with the objectives of the program. The family will be advised of the therapy schedule 1 week in advance. 4. Hours per day: Therapeutic sessions will be scheduled for 7 hr a day. Session time may be extended when therapeutically necessary as decided by the therapist. 5. Absences: There will be 4 notified absences allowed. The mother is expected to notify the therapist at least 1 hr before the scheduled therapy ses- sion, Any additional absences will require an additional fee of $10 per absence. IV. Fees Achievement of the behavioral objectives is expected to take 7 weeks of training from . This training will cost a total of —_________. The monies will be disbursed in the following manner. 1. A check for 2/3 of the total amount will be given to the therapist at the beginning of therapy. 2. The balance of 1/3 will be paid to the therapist upon the achievement of the program objectives as specified above on about the date of termination of the program. In the event that the above objectives are not reached by this date, therapy will be discontinued and the balance will be forfeited by the therapist. 8. All expense incurred during training will be defrayed by the therapist. This will include admission to baseball games, the city zoo, swimming pools, and so on, as well as the cost of field trips, lunch, and snacks. kK KEK By my signature I do hereby attest that I have read the above proposal and agree to the conditions stated therein. Parent Supervising Therapist Co-Therapist Date From: Ayllon, T., and Skuban, W. Accountability in Psychotherapy: A Test Case. Journal of Behavior Therapy and Experimental Psychiatry, 1973, 4, 19-29, pp. 22-23. ''104 1A 1B 2A 2B 3A 3B 4A 4B LEGAL ASPECTS OF ENFORCED TREATMENT BEHAVIORAL CONTRACT Date: I,__________, agree to attend the school from 9:00 a.m. to 12: 00 noon for at least 4 out of the 5 days of the week contingent upon receiving 25 bonus points per day and being allowed to stay up until 9:30 to watch TV or play cards with staff. I, agree that if I do not attend school from 9:00 a.m. to 12:00 noon for at least 4 out of 5 days of the week, I will not receive 25 bonus points per day and I will have to go to bed at 8:30. When I,» SSS, am =n school, I will complete, 80 percent correctly, 5 of 6 lessons per day contingent upon 5 bonus points per les- son and the use of the hairdryer for 30 minutes each evening. When I,_ CSCS, sam =nncot in school or do not complete, 80 percent correctly, 5 of 6 lessons per day, I will not receive 5 bonus points per lesson nor will I be allowed to use the hairdryer that evening. When [, SSS, attend each behavioral counseling session, I will receive 5 bonus points and the use of all of the hair conditioner, shampoo, curlers, hairnets, bobby pins, and scotchtape I need to do my hair that evening. When [, —________,, do not attend a behavioral counseling ses- sion, I will not receive 5 bonus points and I will not get to use the hair- setting materials. If [, ___-___________,, contribute to the behavioral counseling session (as judged by Mr. Denison, the behavioral counselor, and the other girls on a scale of 1 to 15) with an average score of 10 or above, I will receive 10 bonus points. If I,__ CCS, receive a score below 10 on my contribution to the behavioral counseling session, I will not receive 10 bonus points. When I,_CCSCSCSséreceive 3150 bonus points, I can visit my foster parents at home from 4:00 p.m. Friday until 4:00 p.m. Sunday of the weekend following my earning the 3150 bonus points. KKK KK RK KK KK Ms. Barbara Russell Teacher Unit Supervisor Behavioral Counselor Rutherford, R.B., Jr., Establishing Behavioral Contracts with Delinquent Adolescents. Federal Probation, 1975, 39, 28-32, p. 32. ''APPENDIXES 105 CONSUMER/THERAPIST CONTRACT (1) I, a agree to join with __———SCS etch (2) from until , at (8,4) ___SC.:sC#@DS ring: these we will direct our mutual efforts towards three goals: 1; ‘ j (5) 2. 3. (6) I agree to pay__——————séSH per session for the use of his/ (7) her resources, training and experience as a psychotherapist. This amount is payable within. If I am not satisfied with the progress made on these goals, I may (8) In that event I am required to pay for sessions not met. How- ever, if I miss a session without forewarning , lam fi- nancially responsible for that missed, exceptions to this arrangement being unforseen and unavoidable accidents. (9) At the end of sessions, and I agree to renegotiate this contract. We include the possibility that the stated goals will have changed (10) during the _____ period. I understand that this agreement does not guarantee that I will have attained those goals; however, it does constitute an offer on my part to pay for access to her/his resources as a psychotherapist and his/her acceptance to apply all those resources as (11) a psychotherapist in good faith. I further stipulate that this agreement become a part of the medical record which is accessible to both parties at will, but to no other person (12) without my written consent. The therapist will respect my right to main- tain the confidentiality of any information communicated by me to the therapist during the course of therapy. In particular, the therapist will not publish, communicate or otherwise disclose, without my written consent, any such information which, if disclosed, would injure me in any way. Date: From: Adams, S., and Orgel, M. Through the Mental Health Maze: A Con- sumer’s Guide to Finding a Psychotherapist, Including a Sample Con- sumer/Therapist Contract. Washington, D.C.: Public Citizen’s Health Research Group, 1975. 305-654 0 - 79 - 8 ''106 (1) (2) (3,4) (5) (9) (10) (11) (12) LEGAL ASPECTS OF ENFORCED TREATMENT (Sample Completed Consumer/Therapist Contract) I, Mr. Client, agree to join with Ms. Therapist each Thursday afternoon from May 1, 1975, until June 5, 1975, at 3 P.M. until 3:50 P.M. During these six 50-minute sessions we will direct our mutual efforts towards three goals: 1. enabling me to fly in airplanes without fear 2. explaining to my satisfaction why I always lose my temper when I visit my parents 8. discussing whether it would be better for me to give up my full- time job and start working part-time I agree to pay $30 per session for the use of her resources, training and experience as a psychotherapist. This amount is payable within 30 days of the session. If I am not satisfied with the progress made on the goals here set forth, I may cancel any and all subsequent appointments for these sessions, provided that I give Ms. Therapist 3 days warning of my inten- tion to cancel. In that event I am not required to pay for sessions not met. However, in the event that I miss a session without forewarning, I am financially responsible for that missed session. The one exception to this arrangement being unforseen and unavoidable accident or illness. At the end of the six sessions Ms. Therapist and I agree to renegotiate this contract. We include the possibility that the stated goals will have changed during the six-week period. I understand that this agreement does not guarantee that I will have attained those goals; however, it does constitute an offer on my part to pay Ms. Therapist for access to her resources as a psychotherapist and her acceptance to apply all those resources as a psychotherapist in good faith. I further stipulate that this agreement become a part of the medical record which is accessible to both parties at will, but to no other person without my written consent. The therapist will respect my right to main- tain the confidentiality of any information communicated by me to the therapist during the course of therapy. In particular, the therapist will not publish, communicate or otherwise disclose, without my written consent, any such information which, if disclosed, would injure me in any way. Date Name Name of Professional From: Adams and Orgel, op. cit. ''Appendix E Statutes With Conditional Release Provisions * Ariz. Rev. Stat. Ann. § 36-527 (1976) Ark. Stat. Ann. § 41-613 (1971) Calif. Welf. & Inst’ns. Code § 375 (1977) Colo. Rev. Stat. Ann. § 27-10-110 (1975) Del. Code Ann. Tit. 16, §5131 (1974) D.C. Code Ann. § 21-548 (1965) Fla. Stat. Ann. § 394.469 (1977) Ga. Code Ann. § 88-506.7, 88-506.8 (1970) Hawaii Rev. Stat. § 344-76 (1976) Idaho Code Ann. § 66-338 (1977) Iowa Code Sec. 229.15 (1977) Kan. Stat. Ann. § 59-2924 (1977) Ky. Rev. Stat. Ann. § 202A.130 (1976) Me. Rev. Stat. Ann. § 2374, 2375 (1977) Md. Art. 59 § 28 (1974) Mich. Comp. Laws. Ann. § § 330, 1476, 1477 (1977) Minn. Stat. Ann. § 253A.15 (1976) Miss. Code Ann. § 41-21-87 (1976) Montana S.B. 413 § 38-1308 (1977) Neb. LB806 § 54 (1976) Nev. Rev. Stat. Ch. 178. § 433A.380 (1975) N.H. Rev. Stat. Ann. §135-B:39 (1973) N.M. H.B. 472 as amend. § 21 (1977) N.Y. Mental Hygiene Law § 24-301(e) (1976) N.C. Gen. Stat. § 122-58.13 (1976) N.D. S.B. 2164 § 30 (1977) Ohio Rev. Code Ann. § 5122.22 (1977) Okla. Stat. Ann. tit. 43A § 73 (1977) Ore. Rev. Stat. § § 426.280,290 (1976) Pa. Act. 143 § 304.(f) (1976) R.I. Gen. Laws Ann. § 40.1-5-11 (1977) S.C. Code Ann. § 32-986 (1977) Tex. Rev. Civ. Stat. Ann. arts 5547-79, 80 (1977) Utah Code Ann. § 67-7-43. (1975) Vt. Stat. Ann. tit. 18 § 8002 (1976) *Includes alternative treatment options following court-ordered commitment. 107 ''108 LEGAL ASPECTS OF ENFORCED TREATMENT Va. Code Ann. § 37.1-98 (1976) Wash. Rev. Code Ann. §71.05.340 (1976) W. Va. Code Ann. § 27-7-2 (1977) Wis. Stat. Ann. Sec. 51.35(4) (e) (1977) ''FOOTNOTES 1. National Institute of Mental Health. Criminal Commitments and Danger- ous Mental Patients: Legal Issues of Confinement, Treatment, and Release, by Wexler, D.B. DHEW Pub. No. (ADM) 77-331. Washington, D.C.: Sup. Docs., U.S. Govt. Print. Off., 1976. 2. Cited in Rubin, B. Prediction of dangerousness in mentally ill criminals. Archives of General Psychiatry, 1972, 27, 397-407. 3. Whitree v. State, 290 N.Y.S. 2d 486 (Ct. Cl. 1968). 4. Smith v. Fenton, 424 F. Supp. 792 (S.D. N.Y. 1976). 5. Vassalo v. Provenzano, unreported case. $200,000 award points up widening malpractice liability, Medical World News, October 14, 1966, 170-171. 6. Id. After plastic surgery costing $22,000, there was no cosmetic defect. The remaining $178,000 was to compensate for “‘personal humiliation” and its effects. Successful suits of this type could greatly increase the length of con- finement of patients—a trend counter to attempts to expand the rights of patients. 7. Griswold v. Connecticut. 381 U.S. 479 (1965). 8. See Note: Developments in the law: Civil commitment of the mentally ill. Harvard Law Review, 1974, 87, 1190-1406. 9. See, e.g., Steadman, H.J., and Keveles, G. The community adjustment and criminal activity of the Baxstrom patients: 1966-1970. American Journal of Psychiatry, 1972, 129, 304-310. 10. See Note, The cruel and unusual punishment clause and the substantive criminal law. Harvard Law Review, 1966, 79, 635-55. 11. Trop v. Dulles, 356 U.S. 86 (1958). 12. See, e.g., Lee v. Tahash, 352 F. 2d 970 (8th Cir. 1965). 13. In re Birdsong, 39, Fed. 599 (S.D. Ga. 1889). 14. E.g., Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970), aff’d. 442 F.2d 304 (8th Cir. 1971); Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976). 15. 217 U.S. 349 (1910). Proportionality, however, can be found emerging as a principle before this case, e.g., State v. Driver, 78 N.C. 423 (1878). 16. E.g., Peek v. Ciccone, 288 F. Supp. 329 (W.D. Mo. 1968) (use of tran- quilizer); Smith v. Baker, 326 F. Supp. 787 (W.D. Mo. 1970) (medication 109 ''110 LEGAL ASPECTS OF ENFORCED TREATMENT administered over prisoner’s objection and contrary to his religious principles not violation of eighth amendment). 17. 481. F.2d 1028, 1033 (2nd Cir. 1973). 18. E.g., Suits v. Lynch, 437 F. Supp. 38 (D. Kansas, 1977) (refusal to enter cell). 19. Id., See also Donahue v. Maynard, 437 F. Supp. 47 (D. Kansas 1977) (An action that might constitute a battery under common law does not neces- sarily state a claim under the eighth amendment). 20. Pena v. New York State Division for Youth, 419 F. Supp. 203 (S.D. N.Y. 1976) (an exception use made for vehicular transportation). 21. Id., See also Nelson v. Heyne, 355 F. Supp. 451 (N.D. Ind. 1972), aff'd 491 F2d 352 (7th Cir. 1974), cert. denied 417 U.S. 976 (1974);see also Sawyer v. Sigler, Punishment and entitlement to rehabilitative treatment of institution- alized juveniles: Nelson v. Heyne. Virginia Law Review, 1974 60, 864-883. 22. Jordan vy. Fitzharris, 257 F. Supp. 674 (N.D. Calif. 1966); LaReau v. MacDougall, 473 F.2d 974 (2d Cir. 1972), cert. denied 414 U.S. 878 (19); Laaman v. Helgemoe, 437 F. Supp. 269 (D. N.H. 1977). 23. Hutto v. Finney, 57 L. Ed. 2d 522 (1978). 24. Estelle v. Gamble, 429 U.S. 97 (1976). 25. 406 F. Supp. 318, 329 (M.D. Ala. 1976). See also Laaman v. Helgemoe, 437 F. Supp. 269 (D. N.H. 1977). 26. 551 F.2d 44, 47-48 (4th Cir. 1977). 27. Id. at 48. 28. 437 F. Supp. 269 (D. N.H. 1977).; see also Bermanger v. State, 307 N.E. 2d 891 (Ct. App. Ind. 1974). 29. Id. at 316. See also Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976). 30. Newman v. State of Ala., 559 F.2d 283, 291 (5th Cir. 1977). 831. See, e.g., Lipton, D.; Martinson, R.; and Wilks, J. The Effectiveness of Correctional Treatment—A Survey of Treatment Evaluation Studies. New York: Praeger, 1975. Lundman, R.J., and Scarpitti, F.R. Delinquency preven- tion: Recommendations for future projects. Crime and Delinquency, 1978, 24, 207-220. 82. A right to treatment has sometimes been grounded on due process con- siderations, but the overall results are similar to those discussed here. Equal protection arguments have also been rejected by the courts, see, e.g., McLamore v. State, 186 S.E. 2d 250 (S.C. 1972). ''FOOTNOTES 111 33. National Advisory Commission on Criminal Justice Standards and Goals. Corrections. Washington, D.C.: Sup. Docs., U.S. Govt. Print. Off., 1973. 34, E.g., Martarella v. Kelly, 349 F. Supp. 575 (S.D. N.Y. 1972), 359 F. Supp. 478 (S.D. N.Y. 1973); Morales vy. Turman, 364 F. Supp. 166 (E.D. Tex. 1973); 383 F. Supp. 53 (E.D. Tex. 1974), vacated 535 F.2d 864 (5th Cir. 1976), rev'd and remanded 430 U.S. 322 (1977), reh. den. 430 U.S. 988 (1977); Pena v. New York State Division for Youth, supra note 20. 35. Courts tend to interpret these statutes liberally, See e.g., Creek v. Stone, 379 F. Supp. 106 (D.C. Cir. 1967); Janet D. v. Carros, 362 A.2d 1060 (Pa. Super. 1976). 36. 493 F.2d 504 (5th Cir. 1974), aff’d in part sub nom. O’Connor v.Don- aldson, 422 U.S. 563 (1975). 37. E.g., Rouse v. Cameron, 373 F2d 451 (D.C. Cir. 1966); Nason v. Super- intendent of Bridgewater State Hospital, 233 N.E.2d 908 (Mass. 1968); Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), 334 F. Supp. 1341 (M.D. Ala. 1971), 344 F. Supp. 373 (M.D. Ala. 1972), aff’d in part, remanded in part, reserved in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Woe v. Mathews, 408 F. Supp. 419 (E.D. N.Y. 1976) (care and treatment as are reasonably possible to promote speedy release ). 38. For a survey of statutes, see Schwitzgebel, R.K. Survey of State Civil Commitment Statutes, Chapter 4, In: McGarry, A.L.; Schwitzgebel, R.K.; Lipsitt, P.D.; and Lelos, D.; Civil Commitment and Social Policy. Boston, Mass.: 1978, pp. 70-105., 1978 (Final report on grant No. 25955). Among the States now specifying a right to treatment for mental patients are Arizona, Florida, Georgia, Hawaii, Illinois, Kansas, Nebraska, New Hampshire, New Jer- sey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Utah, Vermont, Washington, and Wisconsin. 39. See Schwitzgebel, R.K. Right to treatment for the mentally disabled: The need for realistic standards and objective criteria. Harvard Civil Rights —Civil Liberties Law Review, 1973, 8, 513-535. 40. Some parens patriae patients might be committed without complete certainty that treatment will be effective. However, after it becomes apparent that treatment is not effective, one of the bases for the original commitment (an estimate of therapeutic success) is no longer valid. Wexler supra note 1; Schwitzgebel, R.K. The right to effective treatment. California Law Review, 1974, 62, 936-956. Schwitzgebel, R.K. Implementing a right to effective treatment. Law and Psychology Review, 1975, 1, 117-130. 41. Note, Harvard Law Review, supra note 8 at p. 1328 (patients committed under police power ), see also p. 1222 (untreatable gravely disabled patients). 42. Knecht v. Gillman, 488 F.2d 1136, 1139 (8th Cir. 1973). 43. Powell v. Texas, 392 U.S. 514, 529 (1968) (plurality opinion). ''112 LEGAL ASPECTS OF ENFORCED TREATMENT 44, For a similar model of punishment and treatment, see Shapiro, M.H. Legislating the control of behavior control; Autonomy and the coercive use of organic therapies. Southern California Law Review, 1974, 47, 237-356, p. 296. The court in Price v. Sheppard determined that unconsented electro- shock therapy was not “punishment,” and ‘‘(I)f the electroshock treatments given the minor plaintiff served legitimate purpose (treatment) rather than deterrence or reprimand, the Eighth Amendment claim must fail.”” 239 N.W. 2d 905, 909 (Minn. 1976). 45. 488 F.2d 1136 (8th Cir. 1973). 46. Id. at 1138. The court also considered apomorphine an “unproven drug” and thus may have viewed the entire procedure as experimental and therefore requiring special safeguards for the inmates. 47. Id. at 1140-41. 48. 477 F.2d 877 (9th Cir. 1973). 49. Id. at 878. This was dicta, not a finding by the court. 50. For an excellent summary of confusion and misclassification of behavior modification terms in articles and reports, see Goldiamond, I. Singling out behavior modification for legal regulation: Some effects on patient care, psy- chotherapy, and research in general. Arizona Law Review, 1975 17; pp. 106- 111. 51. 344 F. Supp. 373 (M.D. Ala. 1972) (history in supra note 37). 52. 344 F. Supp. 373, 380 (M.D. Ala. 1972). The phrase “‘adversive rein- forcement conditioning” is not a technically meaningful phrase. There is no standard behavior modification procedure so labeled. Presumably, the court was referring to aversive conditioning of the classical or Pavlovian type. See supra note 50. 53. Wyatt v. Hardin, C.A. No. 3195-N, (M.D. Ala., Sept. 10, 1977). 54. Ohio Rev. Code Ann. §5122.271 (1977). This Ohio statute appears to be patterned after certain requirements in Wyatt v. Stickney, 344 F. Supp. 389, 400-01 (M.D. Ala. 1972). (This decision applied to an institution for mentally retarded rather than mentally ill patients.) 55. Id. at §5122, 271(E). 56. A more detailed criticism of a similar requirement in Wyatt can be found in Budd, K.S., and Baer, D.M. Behavior modification and the law: Implications of recent judicial decisions. Journal of Psychiatry and Law, 1976, 4, pp. 218- 220. 57. Aden v. Younger, 129 Cal. Rptr. 535 (App. Ct. 1976). 58. Mental Health Law Project, Suggested Statute on Civil Commitment, §40. Hazardous Treatment and Treatment Involving Unusual Discomfort; Prior ''FOOTNOTES 113 Human Rights Committee Approval and Mandatory Standards. Mental Disabil- ity Law Reporter, 1977, 2, pp. 154-158. 59. Prisoners in the Special Treatment and Rehabilitation Training (START) program of the Federal Bureau of Prisoners challenged deprivations on several constitutional grounds, including cruel and unusual punishment. Because of the termination of the program, the court did not decide this issue. However, the court did find due process violations. Clonce v. Richardson, 379 F. Supp. 338, 352 (W.D. Mo. 1974). 60. For a detailed discussion of the legal aspects of token economics, see Wexler, D.B. Token and taboo: Behavior modification, token economics, and the law. California Law Review, 1973, 61 81-109. See also “Suggested Statute,” supra note 58 and Appendix C for suggested limits on deprivations. 61. 342 U.S. 169 (1952). 62. Id. at 172. But see concurring opinion of Mr. Justice Black at 174. 63. Springer v. United States, 148 F.2d 411 (9th Cir. 1945), 64. 418 U.S. 539 (1974). Although a due process hearing may be required for the loss of good time credits established by the State, inmates may be transferred from one State institution to another without a hearing, unless the State law grants such a hearing. Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976). 65. Clonce v. Richardson, 379 F. Supp. 338 (W.D. Mo. 1974). 66. Id. at 344-346. 67. Id. at 344. 68. It is reported that the three psychologists appointed by the court to evaluate the program reached different conclusions “Although generalizations are always dangerous, it is fair to say that Dr. Cohen was adamantly opposed to the START program as operated and urged the Court to close it down immediately; Dr. Azrin, on the other hand, generally supported the program. Dr. DeRisi, was highly critical of the current operation of the START program, but suggested most of its deficiencies could be corrected if it were made volun- tary, a proposition vehemently denied by Dr. Azrin. However, none of the experts focused on the fact that, in order to first obtain a situation in which reading matter, for example, was a ‘positive reinforcer,’ reading matter had to be removed from the environment; the focus was strictly on what happened to the prisoners after their placement in the START program, not on the effect of the transfer into the program itself.” Singer, R. Consent of the unfree: Med- ical experimentation and behavior modification in the closed institution, Part I. Law and Human Behavior, 1977, 1-43, p. 36 n. 142. See also statements of Dr. Cohen cited in Brenner, E.H., Behavior modification. Criminal Defense Techniques, Chapter 73. New York: Matthew Bender, 1976, pp. 1-51. 69. Id. at 352. ''114 LEGAL ASPECTS OF ENFORCED TREATMENT 70. Ibid. 71. Id. at 351. 72. Many issues were not dealt with by the court because the program was discontinued, making the issues moot. Ibid. 73. Kerper, H.B., and Kerper, J. Legal Rights of the Convicted. St. Paul, Minn.: West Publishing, 1974, pp. 466-67. 74. Laaman v. Helgemoe, 437 F. Supp. 269 (D. N.H. 1977). 75. “A letter of reprimand or other action which will seriously reduce possi- bility for parole would be considered a ‘grievous loss to the prisoner.’ At the other end of the scale, loss of canteen privileges, restriction on the number of visitors, and the like, would probably be considered minor deprivations, requir- ing very little in the way of a due process hearing beyond a determination that the inmate did indeed commit the alleged transgression. In such cases, oral notice of the charges and an informal fact-finding process would be sufficient.”’ Kerper and Kerper, supra note 73, at 310. 76. 427 U.S. 215 (1976); see also Montanye v. Haymes, 427 U.S. 236 (1976); Tracy v. Salamack, 440 F. Supp. 930 (S.D. N.Y. 1977). 77. E.g., Procunier v. Martinez, 416 U.S. 396 (1974); Sostre v. Otis, 330 F. Supp. 941 (S.D. N.Y. 1971); Capitan v. Cupp, 356 F. Supp. 302 (D. Ore. 1972); Laaman v. Helgemoe, 437 F. Supp. 269 (D. N.H. 1977). 78. E.g., Krist v. Smith, 309 F. Supp. 497 (S.D. Ga. 1970), aff'd 439 F.2d 146 (5th Cir. 1971). 79. Persons may, however, sometimes waive their fundamental rights in ex- change for other rights or benefits. 80. United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 121-122 (S.D. N.Y. 1977). 81. See, e.g., Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977). 82. E.g., Lunsford v. Reynolds, 376 F. Supp. 526 (W.D. Va. 1974). 83. E.g., Wyatt v. Stickney, 325 F. Supp. 781, 785 (M.D. Ala. 1971) (his- tory in supra note 37). See also discussion in text at infra note 93. 84. E.g., Janet D. v. Carros, 362 A.2d 1060 (Pa. Super. 1976); Morgan v. Sproat, 432 F. Supp. 1130 (S.D. Miss. 1977). 85. Morgan v. Sproat, 432 F. Supp. 1130 (S.D. Miss. 1977). 86. Id at 1147. 87. See discussion in text at supra note 74. ''FOOTNOTES 115 88. 432 F. Supp. 1130, 1147 n. 33 (S.D. Miss. 1977). 89. Supra note 1, at 13. 90. Hohfeld, W.N. Fundamental Legal Conceptions as Applied in Judicial Reasoning. New Haven, Conn.: Yale University Press, 1964, pp. 38-40. 91. See, e.g., Martin, R. Legal Challenges to Behavior Modifications: Trends in Schools, Corrections and Mental Health. Champaign, Ill.: Research Press, 1975, pp. 84-85. 92. See Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th Cir. 1974) (difference noted between privileges and necessities for prisoners); Inmates of Boys’ Training School v. Affleck, 346 F. Supp. 1354, 1373 (D. R.I1. 1972) (Loss and gain of privileges may be used, but there are “floors on the power of defendant administrators to deprive inmates of ‘privileges.’’’); Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (Due process may not be avoided by calling a “right” a “‘privilege’’). 93. 344 F. Supp. 373, 379-386 (M.D. Ala. 1972) (history in supra note 37). 94, 406 F. Supp. 318, 332-335 (M.D. Ala. 1976). 95. Many of these items, such as this one, not required in Scellato v. Depart- ment of Corrections, 438 F. Supp. 1207 (W.D. Va. 1977). 96. This list is not intended to be a complete summary of all rights. It is likely that the court did not list all of the protected rights. For example, ade- quate medical care is mentioned only for inmates in isolation, but it must also be provided for the general inmate population. In addition, access to religious services should be allowed but is not mentioned by the court. 97. Budd and Baer, supra note 56, at 205. See also, Martin, supra note 91, at 85. 98. Friedman, P.R. Legal regulation of applied behavior analysis in mental institutions and prisons. Arizona Law Review, 1975, 17, 39-104, at 68-71, 74-75. Some procedurally valid waivers might be invalidated by the courts, however, because the condition imposed (or the right given up) is contrary to public policy. The courts would probably not permit an inmate, for ex- ample, to waive his right to adequate medical care. The courts may also use a doctrine of “unconstitutional conditions.” This doctrine suggests that the right of the Government to withold a benefit does not imply the right of the Gov- ernment to grant it only if the recipient surrenders a constitutional right. Note, Unconstitutional conditions. Harvard Law Review, 1960, 73, 1595-1609. Wexler has raised the issue of the revocability of the waiver of rights. Essentially, if a patient may immediately revoke his waiver and obtain the food or bed which he does not have enough tokens to purchase, the token economy has little force to change behavior. Wexler, D.B. Reflections on the legal regula- tion of behavior modification in institutional settings. Arizona Law Review, 1975, 17, 132-143, p. 139. It might be possible, however, to partially limit or place costs upon revocability. One approach might be to allow immediate revocability the first time the patient experienced the deprivation and wished ''116 LEGAL ASPECTS OF ENFORCED TREATMENT to leave the program. This immediate revocability might even be allowed sev- eral times. However, if the patient subsequently wished to participate in the program, it would be with the explicit understanding that revocation would be subject to a brief, reasonable delay necessary for therapeutic benefit. In Nims v. Boland (138 S.E. 2d 902 (Ga. App. 1964)), a patient was not permitted to withdraw her consent to a medical procedure until it was “‘medically feasible” to terminate the procedure without detriment to the patient’s health. In the absence of harm to the patient, revocability might be briefly delayed to at least determine therapeutic feasibility with alternative procedures. 99. Wexler, supra note 60, at 93. 100. Further discussion of therapeutic and nontherapeutic labor can be found in the text infra at notes 183-193. 101. Wexler, D.B. Of rights and reinforcers. San Diego Law Review, 1974, 11, 957, pp. 966-967. 102. Scellato v. Department of Corrections, 438 F. Supp. 1207 (W.D. Va. 1977). Nor is every common law tort a constitutional violation. Johnson v. Glick, 481 F.2d 1028 (8th Cir. 1973). 103. Martin, supra note 91, at 84. 104. 383 U.S. 107 (1966). 105. Id. at 111. See also Specht v. Patterson, 386 U.S. 605 (1967). 106. See, e.g., United States ex rel. Schuster v. Herold, 410 F. 2d 1071 (2nd Cir. 1969). 107. Wexler, supra note 1, at 57-58. 108. See text supra at notes 64-75. 109. 164 N.W. 2d 253 (Wisc. 1969). 110. Id. at 259. The court distinguished this case from Baxstrom by noting that in Baxstrom neither the commitment on the criminal charge nor the of- fense was necessarily related to mental illness. Id. n. 3. 111. Rarely would the need for treatment alone be sufficient for committing a person. Forty-eight commitment statutes excluding that of the District of Columbia require that the person be dangerous to himself or others or be likely to harm or injure himself or others. Judicial interpretations of statutes often require the dangerousness or harm criteria prior to commitment. See Schwitz- gebel supra note 38. 112. 467 F. 2d 1235 (7th Cir. 1972). 113. Id. at 1239. 114. In re Sealy, 218 So. 2d 765 (Fla. Ct. App. 1969). ''115. 116. 117. 118. 119, 120. FOOTNOTES 117 316 U.S. 535 (1942). 300 N.Y. S.2d 453 (Sup. Ct. 1969). Id. at 457. Sas v. State of Maryland, 334 F.2d 506 (4th Cir. 1964). In re Spadafora, 281 N.Y.S.2d 923 (Sup. Ct. 1967). People ex rel. Blunt v. Narcotic Addiction Control Commission, 295 N.Y.S.2d 276 (Sup. Ct. 1968). 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. Id. at 297. Id. at 282. 355 F. Supp. 451 (N.D. Ind. 1972). 381 U.S. 479 (1965). Id. at 484. Id. E.g., Berger v. State of New York, 388 U.S. 41 (1967). Nader v. General Motors Corporation, 292 N.Y.S. 2d 514 (1968). Stanley v. Georgia, 397 U.S. 557 (1969). People v. Frazier, 64 Cal. Rptr. 171 (App. 1968). People v. Aguiar, 65 Cal. Rptr. 171 (App. 1968). United States v. Miller, 425 U.S. 435 (1976). Ruebhausen, O.M., and Brim, O.G., Jr. Privacy and behavioral research. Columbia Law Review, 1965, 65, 1184-1211, p. 1189. 134, 135. 136. 277 U.S. 438 (1928). Id. at 478. Warren, S., and Brandeis, L. The right to privacy, Harvard Law Review, 1890-1891, 4, 193- 220. 137. 138. 139, Id. at 193. 410 U.S, 113 (1973). Based upon this and other abortion cases, Wexler has suggested, ‘‘Thus, if psychosurgery, despite its serious risks and severely distasteful side-effects, ''118 LEGAL ASPECTS OF ENFORCED TREATMENT were also to present a real prospect of lasting and beneficial behavioral change, it might be constitutionally offensive for a State, by statute or otherwise, to preclude its performance upon a patient when the patient and physician con- clude it is the most promising treatment alternative. For instance, a severely aggressive patient, confined indefinitely because of his violence and unrespon- siveness to conventional and less drastic therapies, might agree with his physi- cian that only psychosurgery might subdue his violence and gain his release. In such a situation, if the patient is willing to assume the risk of the operation and if he can be found competent to make such a decision, the State’s interest in ‘safeguarding health and maintaining medical standards’ might not, on bal- ance, be sufficiently compelling to require the patient to forego the operation and lead a distressful, violent life behind the walls of an institution. Indeed, the State seemingly has no interest in protecting a patient from even ‘an inherently hazardous procedure’ when ‘it would be equally dangerous... to forego it,’ and the concept of ‘danger’ can reasonably be read to include factors—such as a distressful life and mental anguish—beyond purely physical risks.”’ Wexler, D.B. Mental health law and the movement toward voluntary treatment. California Law Review, 1974, 62, pp. 682-683. (Quotations are cited by Wexler to Roe v. Wade, 410 U.S. at 154 and 149.) 140. State ex rel. Carroll v. Junker, 482 P.2d 775 (Wash. 1971). 141. Commonwealth v. Wiseman, 249 N.E.2d 610, cert. denied 398 U.S. 960 (1969). 142. 334 F. Supp. 373, 379 (M.D. Ala. 1972) (history in supra note 37). 143. See, e.g., Gerrard v. Blackman, 401 F. Supp. 1189 (N.D. Ill. 1975). 144. Lanza v. New York, 370 U.S. 139 (1972). 145. Travers v. Paton, 261 F. Supp. 110 (D. Conn. 1966). 146. See, e.g., United States v. Miller, 425 U.S. 435 (1976) (no privacy in bank records of criminal defendant). 147. See, e.g., Lyons v. Gilligan, 382 F. Supp. 966 (D. Wyo. 1974). 148. 439 F. Supp. 114 (S.D. N.Y. 1977). 149. Barnett v. Rodgers, 410 F.2d 995, 1002 (D.C. Cir. 1969). 150. 477 F.2d 877 (9th Cir. 1973). See discussion supra at notes 48 and 49. 151. Civil No. 73-19434-AW (Cir. Ct., Wayne County, Mich., July 10, 1973). 152. 447 F.2d 877, 878 (9th Cir. 1973). 153. Opinion (unpublished) at 38 (July 10, 1973). Contra Price v. Sheppard, 239 N.W.2d 905 (Minn. 1976) (balancing of patient’s privacy interests and State’s interests). 154. Rutherford v. Hutto, 377 F. Supp. 268, 272 (E.D. Ark. 1974) (compelled education noting that there is no “‘constitutional right to be ignorant’’). ''FOOTNOTES 119 155. The Kaimowitz case is sometimes interpreted as a case strongly pro- tecting patients against coercion in their decisionmaking. A closer examina- tion of the social context of this case raises the issue as to whether this was actually accomplished for John Doe. The 36-year-old patient, called John Doe to preserve anonymity, originally consented to psychosurgery. The attorney Kaimowitz, nevertheless, asked the court to prevent the psychosurgery on John Doe and similarly situated patients. The legal proceedings began on the at- torney’s own motion as a Michigan taxpayer, not at the patient’s request. In fact, the patient initially resented the outside intervention. Doe was subse- quently released on a petition alleging that his commitment was unconstitu- tional. Doe did not revoke his consent to psychosurgery until after he had gained his freedom and had read some material highly prejudicial against psychosurgery. In this case, who was coerced by whom? See generally Manson, J.R. Kaimowitz v. Department of Mental Health: A right to be free from experimental psychosurgery. Boston University Law Review, 1974, 54, 301- 339. For insightful, but primarily negative, reviews of the Kaimowitz decision, see Wexler, supra note 1, at 17-18; and Singer, R. supra note 68, at 1-3, 106- 111, 159. 156. Gobert, J.J. Psychosurgery, conditioning, and the prisoner’s right to refuse “rehabilitation.”’ Virginia Law Review, 1975, 61, 155-196. 157. Gobert feels that aversive conditioning programs might not be suffi- ciently effective to justify State action that would impose upon privacy. How- ever, a program combining aversive conditioning with positive conditioning might result in “a reasonable relationship between the conditioning program and the State’s rehabilitative interests.” Id. at 171. 158. National Institute of Mental Health. Development and Legal Regula- tion of Coercive Behavior Modification Techniques With Offenders, by Schwitz- gebel, R.K. DHEW Pub. No. (HSM) 73-9015, 1971. (Reprinted as DHEW Pub. No. (ADM) 74-102, 1974.) Washington, D.C.: Sup. Docs., U.S. Govt. Print. Off., 1971. 159. See, e.g., Gerrish v. State of Maine, 89 F. Supp. 244 (S.D. Maine 1950); Prewitt v. Arizona ex re. Eyman, 315 F. Supp. 793 (D. Ariz. 1969). 160. 416 U.S. 396 (1974). 161. Id. at 413-414. 162. 406 F. Supp. 318, (M.D. Ala. 1976). 163. Id. at 334. 164, E.g., Laaman v. Helgemoe, 437 F. Supp. 269, 322 (D. N.H. 1977). 165. Wyatt v. Stickney, 344 F. Supp. 373, 379-380 (M.D. Ala. 1972). 166. See, e.g., Brown v. Schubert, 347 F. Supp. 1232 (E.D. Wisc. 1972). 167. Johnson v. Anderson, 370 F. Supp. 1373 (D. Del. 1974). ''120 LEGAL ASPECTS OF ENFORCED TREATMENT 168. O’Bryan v. County of Saginaw, Michigan, 437 F. Supp. 582 (E.D. Mich. 1977). 169. Laaman v. Helgemoe, 437 F. Supp. 269 (D. N.H. 1977). 170. O’Bryan v. County of Saginaw, Michigan, 437 Supp. 682 (E.D. Mich. 1977). 171. Morales v. Terman, 364 F. Supp. 166 (E.D. Tex. 1973), 383 F. Supp. 53 (E.D. Tex. 1974), rev’d on other grounds, 535 F.2d 864 (5th Cir. 1976), rev'd and remanded 430 U.S. 322 (1977), reh. den. 430 U.S. 988 (1977). 172. Id. at 175. 173. In 1971, 30 statutes granted special visitation to these persons. Eight of these allowed unrestricted visits from the clergy. Brakel, S.J., and Rock, R.S., The Mentally Disabled and the Law. Chicago: University of Chicago Press, 1971, p. 158. 174. 288 F. Supp. 329 (W.D. Mo. 1968). 175. Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940). 176. See Spece, R.G., Jr. Conditioning and other technologies used to “treat?” “rehabilitate?” “demolish?” prisoners and mental patients. Southern California Law Review, 1972, 45, 616, pp. 661-665. 177. Cantwell v. Connecticut, 310 U.S. 296 (1940) (interference with traf- fic included as one aspect of public order that may justify a limitation upon religious liberty) (dicta); Knuckles v. Prasse, 302 F. Supp. 1036 (E.D. Pa. 1969) (religious services of Muslims allowed in prison unless defiance of author- ity becomes the message and presents a clear and present danger). 178. See, e.g., Barnett v. Rodgers, 410 F.2d 995 (D.C. Cir. 1969) (prison administrators required to find alternatives to the imposition of frequent pork meals to Muslims); Cochran v. Rowe, 438 F. Supp. 566 (N.D. Ill. 1977) (lack of access to religious services and materials by Muslim prisoners). 179. Kaimowitz v. Michigan Department of Mental Health, Civil No. 73- 19434-AW (Cir. Ct., Wayne County, Mich., July 10, 1973); Spece, supra note 176, at 663. 180. Rutherford v. Hutto, 377 F. Supp. 268 (E.D. Ark. 1974). 181. Gobert, supra note 156. 182. Id. at 189-190. 183. 355 F. 2d 129, 132 (2d Cir. 1966). 184. Id. at 131-132. ''FOOTNOTES . 121 185. Wyatt v. Stickney, 344 F. Supp. 373. 375 (M.D. Ala. 1972) (history in supra note 37). 186. Id. at 381. 187. See generally, Friedman, P.R. The mentally handicapped citizen and institutional labor. Harvard Law Review, 1974, 87, 567-587. 188. Budd and Baer, supra note 56, at 185. 189. 344 F. Supp. 373, 381. See Fair Labor Standards Act, 29 U.S.C. § 206 as amended, 1966. 190. Id. 191. Budd and Baer, supra note 56, at 186. 192. Laaman v. Hancock, 351 F. Supp. 1265 (D. N.H. 1972). 193. In re Bacon, 49 Cal Rptr. 322 (App. 1966). 194, Chayet, N.L. Technical assault and battery. New England Journal of Medicine, 1967, 276, 514-515. 195. Even if no technical battery arose from unconsented psychotherapy, there would still be other possible actions for liability such as the invasion of privacy. A practitioner would also be liable for malpractice. 196. Cox v. Stretton, 352 N.Y.S.2d 834 (Sup. Ct. 1974); Darrah v. Kite, 301 N.Y.S.2d 286, 290 (N.Y. App. Div. 1969). 197. Edwards, S.L. Failure to inform as malpractice. Vanderbilt Law Re- view, 1970, 23, 754-774; Miller v. Kennedy, 522 P.2d 852 (Wash. Ct. App. 1974). 198. See generally, Meisel, A. The expansion of liability for medical acci- dents from negligence to strict liability by way of informed consent. Nebraska Law Review, 1977, 56, 51-152; Gatchell v. Mansfield, 489 P.2d 953, 956 (Or. 1971). 199. See Holland v. Sisters of Saint Joseph of Peace, 522 P.2d 208 (Or. 1974); Cobbs v. Grant, 502 P.2d 1 (1972) (In Bank). 200. E.g., Mitchell v. Robinson, 334 S.W.2d 11 (Mo. 1960); Woods v. Brumlop, 377 P.2d 520 (N. Mex. 1962). 201. Adapted from Louisell, D.W., and Williams, H. Medical Malpractice. New York: Matthew Bender, 1960, §22.01. 202. Tryon, W.W. Behavior modification and the law. Professional Psy- chology, 1976, 7, 468-474, p. 471. 203. Cobbs v. Grant, 502 P.2d 1, 11 (Calif. 1972) (In Bank). 305-654 0 - 79 - 9 ''122 LEGAL ASPECTS OF ENFORCED TREATMENT 204. See, e.g., Wilkinson v. Vesey, 295 A.2d 676, 689 (R.I. 1972). 205. Spece, supra note 176, at 676. 206. Id. 207. 488 F.2d 1136 (8th Cir. 1973). 208. Id. at 1139-1140. 209. Id. at 1140. 210. A discussion of competency to consent by mentally ill persons can be found in the text infra at notes 396-404. 211. 239 N.W.2d 905 (Minn. 1976) (en banc). 212. Id. at 912. 213. Id. at 912, ftn. 9, also see Minn. St. 253A.07, subd. 17 (a) (iii) (1976) which includes as evidence for commitment the person’s failure to care for his own needs for food, clothing, shelter, safety, or medical care. 214. Id. at 909. 215. Id. at 911. 216. See, e.g., Stewart v. Rudner, 84 N.W.2d 816 (Mich. 1957); Noel v. Proud, 367 P.2d 61 (Kan. 1961). 217. Adams, S., and Orgel, M. Through the Mental Health Maze; A Con- sumer’s Guide to Finding a Psychotherapist, Including a Sample Consumer/ Therapist Contract. Washington, D.C.; Public Citizen’s Research Group, 1975, Chapter 5. 218. Saper, B. Right, liberty and the pursuit of mental health. Journal of Community Psychology, 1975, 3, 3-14, p. 13. See also Ayllon, T. Behavior modification in institutional settings. Arizona Law Review, 1975, 17, 3-19, p; 11. 219. Lombillo, J.R., Kiresuk, T.J., and Sherman, R.E. Evaluating a com- munity mental health program: Contract fulfillment analysis. Hospital and Community Psychiatry, 1973, 24, 760-763, p. 762. 220. Contracts may also be used in research. See Epstein, Y.M., Suedfeld, P.; and Silverstein, S.J. The experimental contract; Subjects’ expectations of and reactions to some behaviors of experimenters. American Psychologist, 1973, 28, 212-221. 221. 344 F. Supp. 373 (M.D. Ala. 1972) (history in supra note 37). 222. E.g., Arizona Rev. State Ann., §36-506 (1974). ''FOOTNOTES 123 223. For a discussion of the effects of legal findings of incompetency on consent and contracts, see text infra at notes 396-404. 224. See Alexander, G.J., and Szasz, T.S. From contract to status via psy- chiatry. Santa Clara Lawyer, 1973, 13, 537-559; Schwitzgebel, R.K. The right to effective mental treatment. California Law Review, 1974, 62, 936-956, pp. 951-954. Anclote Manor Foundation v. Wilkinson, 263 So.2d 256 (Fla. App. Ct. 1972) reh. den. 1972) (breach of contract of hospital psychiatrist in rendering treatment below acceptable standards). 225. Guilmet v. Campbell, 188 N.W.2d 601 (Mich. 1971) (contract by surgeon to “‘cure”’ patient enforced ). 226.13 F. Supp. 1005 (E.D. Ky. 1936). 227. See Wexler, D.B. Mental health law and the movement toward vol- untary treatment. California Law Review, 174, 62, 671-692, p. 689-691. Subsequently to Lloyd, Congress changed the voluntary treatment procedure in which he waives a commitment hearing and requests treatment for a 42- month period from which he may not withdraw. Six months of that time may be inpatient treatment. Such a procedure has been found to be legally binding. Kelley v. Rasor, 283 F. Supp. 445 (E.D. Ky. 1968). Whether this procedure may be used with patients who are not committable is unclear. Wexler, id., at 691, ftn. 74. 228. Wexler, D.B. Therapeutic justice. Minnesota Law Review, 1972, 57, 289-338, p. 331. 229. 291 F. Supp. 748 (S.D. Fla. 1968). 230. 42 United States Code, §§ 3401, 3411. 231, 291 F. Supp. 748, 752 (S.D. Fla. 1968). 232. 440 F. Supp. 930 (S.D. N.Y. 1977). 233. Id. at 935. 234. Id. at 934-936. 235. Id. at 933, ftn. 5. 236. See, e.g., American Correctional Association, Mutual Agreement Pro- gramming: An Overview. Baltimore, Md.: Author, 1974. 237. Frazier, J. Victim Restitution Parole Program, Unpublished Paper. Parole Board, Commonwealth of Massachusetts, Boston, Mass., 02202, 1978. 238. Schwitzgebel, supra note 224. 239.355 F. Supp. 451 (N.D. Ind. 1972), aff'd 491 F.2d 352 (7th Cir. 1974), cert. denied 417 U.S. 976 (1974). ''124 LEGAL ASPECTS OF ENFORCED TREATMENT 240. Id. at 460. 241. Id. 242. Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974), cert. denied 417 U.S. 976 (1974). 243. Sometimes this element of knowledge that the fact is false (scienter) is not required, especially if the person is recklessly indifferent as to whether the fact is true or not. 244, Courts have enforced agreements when one party relied upon a repre- sentation and gave up an activity such as smoking. It is doubtful that the courts would enforce a contract when the only damage the person could claim was that he gave up a criminal activity, e.g., bank robbery or the illegal sale of narcotics. 245.76 N.E.2d 699 (Ind. 1948). See also Brinkley v. Hassig, 83 F.2d 351 (10th Cir. 1936): 246. Green, M.D. Fraud, undue influence and mental incompetency. Co- lumbia Law Review, 1943, 43, 176-205. 247. Negligence is a basic element of malpractice actions in which a prac- titioner fails to use the skill and knowledge customary in his/her school of practice. Fraud may also be a legal action in tort separate from contract law being discussed here. 248. Some difficulty may arise from the fact that cases have been decided by courts of law which follow legal doctrines rather carefully. In contrast, courts of equity may more fully take into account issues of fairness or justice. 249. Singer, supra note 68, at 111-112. 250. Id. at 112, 114. 251. Id. at 115. 252. Cir. Action No. 73-19434-AW (Cir. Court, County of Wayne, July 10, 1973). 253. Id. at 29 (Court Opinion). 254. Parker, K.A. On a contract model for treatment. American Psycholo- gist, 1976, 31, 257-258. 255. See Wexler, supra note 227, at 678. 256. Wexler, supra note 227, at 679. 257. 344 F. Supp. 373, 380 (M.D. Ala.) (history in supra note 37). ''FOOTNOTES 125 258. Schwitzgebel, R.K. A contractual model for the protection of the rights of institutionalized mental patients. American Psychologist, 1975, 30, 815-820. 259. See, generally, Shaffer, T.L. Undue influence, confidential relation- ships, and the psychology of transference. Notre Dame Lawyer, 1969-70, 197, 235-248. 260. See, e.g., Woodbury v. Woodbury, 5 N.E. 275 (Mass. 1886). 261. Green, supra note 246, at 196. 262.436 S.W.2d 753 (Mo. 1969) (The case was decided on other grounds as the issue was the liability of the psychiatrist’s malpractice insurer). 263. See Dawidoff, D.J. The Malpractice of Psychiatrists: Malpractice in Psychoanalysis, Psychotherapy and Psychiatry. Springfield, Ill.: Thomas, 1973, pp. 58-60. 264. Frostifresh Corp. v. Reynoso, 274 N.Y.S.2d 757 (Dist. Ct. 1966). 265. Williams v. Walker—Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965); Jones v. Star Credit Corp., 298 N.Y.S.2d 264 (Sup. Ct. 1969). 266. Restatement of the Law of Contracts, Second, § 234 (d). 267. Roos, P.D. The doctrine of unconscionability: Alive and well in California, California Western Law Review, 1972, 9, 100-1 14, p. 114. 268. Unico v. Owen, 232 A.2d 405, 410 (N.J. 1967 ). 269. Singer, supra note 68, at 128. 270. See Tracy v. Salamack, 440 F. Supp. 930 (S.D. N.Y. 1977) (dictum). The court did not consider unconscionability of the contract signed by the inmates, but did suggest that the waiver of a hearing prior to revocation of community status would be contractually possible. Id. at 933 ftn. 5, 935. 271. Schwitzgebel, supra note 258. 272. Judicial inconsistency will be apparent from the discussion here. For an example of legislative inconsistency, see Stone, M.A. The right of the psy- chiatric patient to refuse treatment. Journal of Psychiatry and Law, 1976, 4, 515-533, p. 524. 273. See, e.g., New York City Health and Hospital Corporation v. Stein, 355 N.Y.S.2d 461 (Sup. Ct. 1972). 274. Whitree v. State, 290 N.Y.S.2d 486 (Ct. Cl. 1968). The patient refused treatment and was abused by the staff. His claim against the State for $300,000 was settled out of court for $200,000. 275. Right to refuse treatment under State statutes. Mental Disability Law Reporter, 1977, 2, 241-256. ''126 LEGAL ASPECTS OF ENFORCED TREATMENT 276. Arkansas Rev. Stat. §§59-501, 502 Cited in Mental Disability Law Reporter, id., at 241. 277. Nevada Rev. Stat. § § 433.484 (1), 534 (1), Cited in Mental Disability Law Reporter, id. at 248-249. 278. 532 F.2d 939 (3rd Cir. 1976). 279. Id. at 946-947 (cites omitted). 280. E.g., Price v. Sheppard, 239 N.W.2d 905 (Minn. 1976); Harvard Law Review, supra note 8, at 1344. 281. Winters v. Miller, 466 F.2d 65 (2d Cir. 1971), cert. denied, 404 U.S. 985 (1972) (special determination of incompetency required prior to treat- ment touching upon religious matters). 282. Roth, L.H. Involuntary civil commitment: The right to treatment and the right to refuse treatment. Psychiatric Annals, 1977, 7, 50-76. Roth com- ments, ‘“‘The patient who can give an informal consent to treatment should not be involuntarily committed. To commit competent patients for involuntary treatment is to abuse them from the onset.” Id. at 75; see also American Bar Association Commission on the Mentally Disabled, Legal issues in State mental health care: Proposals for change; Civil commitment. Mental Disability Law Reporter, 1977, 2, 73-126, p. 90. 283. See generally, Harvard Law Review, supra note 280, at 1207-1245; Buchanan v. State, 164, N.W.2d 253, 259 (Wisc. 1969). 284. See Schwitzgebel, supra note 38. 285. See, e.g., American Bar Association on the Mentally Disabled, supra note 282, at 120, and cases collected in the Mental Disability Law Reporter, 1977, 2, 44. 286. Friedman, supra note 98, at 73-74. See also Wexler, supra note 1, at 16-17. 287. 295 F. Supp. 84 (D.D.C. 1968). 288. Id. at 86. 289.164 N.W.2d 253, 259 (Wisc. 1969); see also In re Thompson, 362 N.E.2d 532 (Mass. App. Ct. 1977); Shapiro, supra note 44, at 299-300. 290. See, e.g., Idaho Code, § 66-346(a) (4) (Director may deny right to refuse treatment for good cause.) Mass. Ann. Laws ch.123, §23 (Right to refuse certain treatments may be denied for good cause and with consent of guardian or nearest living relative.) 291. Shapiro, supra note 44, at 300; National Institute of Mental Health. The right to refuse treatment, in Mental Health and Law: A System in ''FOOTNOTES 127 Transition. by Stone, A.A. DHEW Pub. No. (ADM) 75-176. Washington, D.C.: Sup. Does., U.S. Print. Off. 1975, 97-108, p. 104. 292. Note, Harvard Law Review, supra note 8, at 1353. 293. American Bar Association Commission on the Mentally Disabled, Sug- gested Statute on Civil Commitments, §39. Mental Disability Law Reporter, 1977, 153-154. 294. A more detailed discussion of the matters to be decided by a Human Rights Committee can be found in Friedman, supra note 98, at 96-100. 295. Roth, L.H.; Meisel, A.; and Lidz, C.W. Tests of competency to con- sent to treatment. American Journal of Psychiatry, 1977, 134, 279-284. 296. See, e.g., In re Spadafora, 281 N.Y.S. 2d 923 (Sup. Ct. 1967). 297. See, e.g., Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga. 1968); Laa- man v. Hancock, 351 F. Supp. 951 (D. N.H. 1972). 298. 377 F. Supp. 268 (E.D. Ark. 1974). 299. Id. at 272 (emphasis added). 300. Jackson v. McLemore, 523 F.2d 838 (8th Cir. 1975). 301. See, e.g., People ex rel. Blunt v. Narcotic Addiction Control Com- mission, 295 N.Y.S.2d 276 (Sup. Ct. 1968); People v. Fuller, 248 N.E.2d 17 (N.Y. App. Ct. 1969). 302. See, e.g., Peek v. Ciccone, 288 F. Supp. 329 (W.D. Mo. 1968 ) (prisoner in the United States Medical Center for Federal Prisoners not certified as in- competent). See also Haynes v. Harris, 344 F.2d 463 (8th Cir., 1965 ). 303. See, e.g., In re Thompson, 362 N.E.2d 532 (Mass. App. Ct. 1977). 304. 379 F. Supp. 338 (W.D. Mo. 1974). 305. Id. at 350 (emphasis added). 306. Id. at 351-352 (question moot). 307. Isele, W.P. Inmates’ Medical Records and Jail Inmates’ Right to Refuse Medical Treatment. Chicago, Ill.: American Medical Association, 1978. 308. Pugh v. Locke, 406 F. Supp. 318, 328 (M.D. Ala. 1976). 309. 499 F.2d 733 (9th Cir. 1974). 310. 488 F.2d 1136 (8th Cir. 1973). 311. See discussion in the text supra at pp. 11-12. ''128 LEGAL ASPECTS OF ENFORCED TREATMENT 312.477 F.2d 877 (9th Cir. 1973), see discussion in the text supra at notes 48-49. 313. See, e.g., Missouri Annoted Statutes §105.700. 314. See, e.g., Ginsberg, M.D. A new perspective in prisoners’ rights: The right to refuse treatment and rehabilitation. The John Marshall Journal of Practice and Procedure, 1976, 10, 173-195. 315. Shapiro, supra note 44, at 255-256. 316. See, e.g., In re I, 316 N.Y.S.2d 356 (Family Ct. 1970) (placement of a youth in a training school expressly for psychiatric treatment) and cases supra at notes 301-304. Treatment of the type discussed here may not be forced upon competent nonprisoners. The discussion here is specifically upon the right to privacy of offenders confined under penal or delinquency statutes. 317. See the example of “coercion” depending upon the prior involvement of the parties in the text supra at pp. 55-56. 318. See discussion in the text supra at pp. 34-35; Schwitzgebel, R.K. Limitations on the coercive treatment of offenders. Criminal Law Bulletin, 1972, 8, 267-320. 319. See, e.g., Morris, N. Who should go to prison? In: B.D. Sales, ed. The Criminal Justice System, New York: Plenum, 1977, 151-159; Singer, R. In favor of ‘“‘presumptive sentences” set by a sentencing commission. Criminal Justice Quarterly, 1977, 5, 88-105. The issue of enforced treatment within a prison is separate from the issue as to whether a prisoner’s supposed rehabili- tation should be used to determine when he is to be released—a matter of concern to those who support a “‘just deserts” theory and presumptive sentencing. 320. See, e.g., Pell v. Procunier, 417 U.S. 817 (1973); Bowring v. Godwin, 551 F.2d 44 (4th 1977); and cases collected in Pugh v. Locke, 406 F. Supp. 318, 328 (M.D. Ala. 1976). 321. See generally, Harvard Law Review, supra note 8, at 1216, 1224- 1226 (observing that compelled treatment usually involves the protection of the life or health of others, e.g., compulsory vaccination, fluoridation of muni- cipal water supply). 322. See discussion in the text supra at p. 64. 323. State v. Carter, 316 A2d 449, 470 (N.J. 1974). The doctrine is closely related to due process and equal protection principles. See generally, Saphire, R.B. The civilly committed public mental patient and the right to aftercare. Florida State University Law Review, 1976, 4, 232-295, pp. 268-287. 324. 364 F.2d 657 (D.C. Cir. 1966). See also Shelton v. Tucker, 364 U.S. 479 (1960) (citing various circumstances in which the Supreme Court has recognized a principle of ‘“‘least drastic means”’). ''FOOTNOTES 129 325. See, e.g., In re Jones, 338 F. Supp. 428 (D. D.C. 1972); Price v. Shep- pard, 239 N.W. 2d 905 (Minn. 1976); Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972) (history in supra note 37); Dixon v. Attorney General, 325 F. Supp. 966 (M.D. Pa. 1971); Dixon v. Weinberger, 405 F. Supp. 974 (D. D.C. 1975); Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), remanded on other grounds, 414 U.S. 473 (1974); Suzuki v. Quisenberry, 411 F. Supp. 113 (D. Hawaii 1976); Ashe v. Robinson, 450 F.2d 681 (D.C. Cir. 1971); In re anonymous, 329 N.Y.S.2d 542 (Sup. Ct. 1972); Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio 1974). But see State v. Sanchez, 457 P.2d 370 (N.M. 1969). 326. See discussion in Brooks, A.D. Law, Psychiatry and the Mental Health System. Boston, Mass.: Little, Brown, 1974, 732-733. 328. Michigan Comp. Laws §469(1). 329. See, e.g., Covington v. Harris, 419 F.2d 617 (D.C. Cir. 1969); Dixon v. Weinberger, 405 F. Supp. 974 (D. D.C, 1975). 330. See Schwitzgebel, supra note 38. 331. See, e.g., Covington v. Harris, 419 F.2d 617 (D.C. Cir. 1969); New York Association for Retarded Children v. Carey, 393 F. Supp. 715 (E.D. N.Y. 1975) (Memorandum and Order of March 10, 1976, No. 72-C-356). 332. Wyatt v. Stickney, 344 F. Supp. 373, 384 (M.D. Ala. 1972) (history in supra note 37). 333. 239 N.W. 2d 905 (Minn. 1976) The court set more rigorous standards for the subsequent use of electroshock treatment. 334. 410 F.2d 995 (D.C. Cir. 1969) citing Shelton v. Tucker, 364 U.S. 479, 488 (1960). 335. Id. at 1000. 336. 438 F. Supp. 566 (N.D. Ill. 1977). 337. Morales v. Terman, 383 F. Supp. 53 (E.D. Tex. 1974) (history in supra note 171). 338. Saper, B. Right, liberty, and the pursuit of mental health. Journal of Community Psychology, 1975, 3, pp. 9-10. 339. 316 A.2d 449 (N.J. 1974). 340. This goal would not have to be decided in abstract terms—which tends to promote philosophical disagreement—but in the context of each particular case situation. 341. Budd and Baer, supra note 56. 342. Id. at 206. ''130 LEGAL ASPECTS OF ENFORCED TREATMENT 343. Martin, R. Reader’s Forum. Law and Human Behavior, Spring 1977, 2,73 344. Wyatt v. Stickney, 344 F. Supp. 373, 386 (M.D. Ala. 1972) (history in supra note 37). 345. Id. 346. 419 F.2d 617, 625, 626 (D.C. Cir. 1969). 347. See generally, Ensminger, J.J., and Reilly, P. The legal and social signifi- cance of aftercare systems: A review and analysis. Journal of Psychiatry and Law, 1977, 5, 229-291. 348. Id. at 247. 349. Wash. Rev. Code Ann. §71.05.340. 350. Tex. Rev. Civ. Stat. Ann. arts. 55-47-79, 80 (1977). 351. Ore. Rev. Stat. §426.130 (1976). 352. Ore. Rev. Stat. §426.280 (1976). 353. See statutes collected in State v. Carter, 316 A.2d 449, 460 n. 10 (N.J. 1974). 354. Id. at n. 12. 355. Nearly two-thirds of the States were reported to have conditional re- lease statutes in State v. Carter, 316 A.2d 449, 460 compared to the increased number of statutes now in effect (appendix E). However, South Carolina re- cently repealed provisions allowing ‘‘conditional discharges.” 356. Ennis, B.J., and Emery. R.D. The Rights of Mental Patients. New York: Avon, 1978, p. 172. 357. 345 N.Y.S.2d 341 (County Ct. 1973). 358. 232 A.2d 586 (D.C. Ct. App. 1967). 359. Kan. Stat. Ann. §59-2924 (1977). 360. 140 Cal. Rptr. 546 (Ct. App. 1977) (patient in the community for 10 months). 361. Id. at 553. See also Darnell v. Cameron, 348 F.2d 64 (D.C. Cir. 1965); Meisel v. Kremens, 405 F. Supp. 1253 (E.D. Pa. 1975). 362. Idaho Code Ann. §66-338 (1977) (endorsement by a judge). 363. Ore. Rev. Stat. §426.290 (1976). ''FOOTNOTES 131 364. People ex rel. Blunt v. Narcotic Addiction Control Commission, 295 N.Y.S.2d 276 (Sup. Ct. 1968). 365. Marshall v. United States, 414 U.S. 417, 438 (1974) (dicta); see also Com. v. Johnson, 378 A.2d 1013 (Super. Ct. 1977) (drug treatment as a con- dition of probation). 366. People v. Ainsworth, 32 A.D.2d 839, 302 N.Y.S.2d 308 (1969). 367. See, e.g., Hacker v. Superior Court of Tulare County, 73 Cal. Rptr. 907 (Ct. App. 1968). See also Latta v. Fitzharris, 521 F.2d 246 (9th Cir.) (search of parolee’s home by parole officer without warrant permissible in view of the “rehabilitation purpose” of the parole system), 368. 64 Cal. Rptr. 290 (Ct. App. 1967). 369. Id. at 293. 370. Morrissey v. Brewer, 408 U.S. 471 (1972). 371. Tracy v. Salamack, 440 F. Supp. 930 (S.D. N.Y. 1977). 372. Id. at 933, n.5. 373. Sleffel, L. Habitual criminal statutes, The Law and the Dangerous Criminal: Statutory Attempts at Definition and Control. Lexington, Mass.: D.C. Heath, 1977, pp. 1-29. A useful table is presented listing information such as the State, the required number of previous offenses, and the required and allowed penalties. The survey is current to December 31,1975. A list of habitual offender statutes can also be found in National Institute of Mental Health, Development and Legal Regulation of Coercive Behavior Modification Techniques With Offenders, by Schwitzgebel, R.K. DHEW Publication No. (HSM) 73-9015, Washington, D.C.: Sup. Does., U.S. Govt. Print. Off., 1971, Appendix B, pp. 70-71 Forty-seven States are listed therein as having statutes related to habitual offenders. That survey is current to September 1, 1969. It is unlikely that States have changed habitual offender statutes sufficiently to account for the difference in number between these two surveys. In addition to change, there is the constant problem in statutory sur- veys of defining and labeling the diversely drafted and scattered statutes in State codes. State legislatures are persistent (habitual?) in refusing to draft statutes to meet the needs of researchers. 374, Id. at 2. 375. Schwitzgebel, supra note 373, at 24. 376. Sleffel, supra note 373, at 18. 377. Sleffel, supra note 373, at 19. See also Miller, F.W. Prosecution: The Decision to Charge a Suspect with a Crime. Boston, Mass.: Little, Brown, 1968. 378. Petersilia, J.; Greenwood, P.W.; and Lavin, M. Criminal Careers of Habitual Felons. Santa Monica, Calif.: Rand, 1977, pp. 40-42. ''1382 LEGAL ASPECTS OF ENFORCED TREATMENT 379. Sleffel, supra note 373, at 19. 380. 572 R.2d 815 (Colo. 1978) (en banc). 381. 483 F.2d 136 (4th Cir. 1973), cert. denied 415 U.S. 938 (1974). 382. 384 F. Supp. 1394 (W.D. Mo. 1974). 383. 18 U.S.C.A. 3575(f). 384. Sleffel, supra note 373, at 159. 385. 316 A.2d 449 (N.J. 1974). 386. Id. at 461 (cites omitted). 387. Id. at 471-472. 388. Levine, D. The concept of dangerousness: Criticism and compromise. In B.D. Sales, Ed. Psychology in the Legal Process, New York: Spectrum, 1977, pp. 147-161. 889. Id. at 155. 390. Walker, N.; Hammond, W.; and Steer, D. Careers in violence. In: The Violent Offender: Reality of Illusion. Occasional paper No. 1. Oxford: Oxford Penal Research Unit, 1970. Cited in Levine, id. at 161. 391. Id. at 155. 392. National Institute of Mental Health, Perspectives on court decision- making, by Wilkins, L.T. In: Gottfredson, D.M., ed., Decision-making in the Criminal Justice System: Reviews and Essays. DHEW Publication No. (ADM) 75-238, Washington, D.C.: Sup. Docs., U.S. Govt. Print. Off. 1975, pp. 59-81, 79. 393. Sleffel, supra note 373, at 166. 394. Sleffel, supra note 373, at 168. 395. Certainty of apprehension would deter offenses more than longer sentences in the opinion of one group of habitual offenders. Petersilia et al., supra note 378, at 119. 396. See discussion in the text supra at notes 293-294. 397. Roth, L.H.; Meisel, A.; and Lidz, C.W. Test of competency to consent to treatment. American Journal of Psychiatry, 1977, 134, 279-284. 398. Meisel, A. The expansion of liability for medical accidents; From negligence to strict liability by way of informed consent. Nebraska Law Re- view, 1977, 56, 51-152, p. 117. 399. Meisel, id. at 118, n. 189 (cont.). ''FOOTNOTES 133 400. Roth et al., supra note 397, at 281. 401. Meisel, supra note 398, at 119-120. 402. Roth et al., supra note 397, at 283. 403. Wexler, D.B. Reflections on the legal regulation of behavior modifica- tion in institutional settings. Arizona Law Review, 1975, 17, 132-143, p. 136. The decisions in this diagram represent standards developed by Friedman, supra note 98, as augmented by Wexler. U. S. GOVERNMENT PRINTING OFFICE : 1979 0 - 305-654 ''''''''We are interested in your reactions to this monograph. Please take a few moments to answer the short questions below. Fold where indicated, seal, and affix stamp on reverse side. Monograph Title: 1. How did you obtain or find out about this publication? (Check only one, please) It came in the mail unrequested. | specifically ordered or requested it. Someone else lent or gave it to me. | borrowed it from a library. It was cited in another book or article. 2. Who else that you know has access to this copy? (Check all that apply, please) No one — it’s my own personal use copy. Colleagues whom | work with. Agency circulates it among staff. Library copy for general circulation. 3. Have you told others about this monograph or shown it to them? (Check all that apply) No If yes, who? Co-workers Fellow professionals Agency library Friends 4. How familiar were you with the general topic of this monograph? (Check only one, please) Very familiar Somewhat familiar pest aes Not familiar ge Fold here 5. What uses has the monograph had for you? (Check only one in Part a., and only one in Part b., please) a. The monograph provided: A lot of new information. A new or useful review and synthesis of information Very little new or useful information b. The information provided is mainly relevant to: Specific job duties Professional enhancement or advancement Keeping up-to-date on topic area 6. In what kind of agency and job activity are you primarily engaged? (Check one only in each column, please) Agency Job Activity Mental health _- Direct service Police ————— Administrative or support staff Courts perce cere Policy-maker or chief executive Corrections Judge Law practice —_- Legislative services Legislature Research and/or planning University ee es, Teaching Business firm — Student 7. What other topics would you like to see covered in the Crime and Delinquency Monograph series? (Please list) '' Affix Stamp Here Chief, Center for Studies of Crime and Delinquency Room 18C-04 National Institute of Mental Health 5600 Fishers Lane Rockville, Maryland 20857 SS SS leer ae Sees ee a cme cee ipa en mcs '' Other monographs in the NIMH Crime and Delinquency Series available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 The Contemporary Woman and Crime, DHEW Publication No. (ADM) 75-161; GPO stock #017-024-0045-6 Criminal Commitments and Dangerous Mental Patients, DHEW Publication No. (ADM) 77-331; GPO stock #017-024-00535-5 Dangerous Behavior: A Problem in Law and Mental Health, DHEW Publication No. (ADM) 78-563; GPO stock #017-024-00809-5 Decision-making in the Criminal Justice System: Reviews and Essays, DHEW Publication No. (ADM) 75-238; GPO stock #017-024-00462-6 Mental Health and Law: A System in Transition, DHEW Publication No. (ADM) 76-176; GPO stock #1724-00454 Observing the Law: Applications of Field Methods to the Study of the Crim- inal Justice System, DHEW Publication No. (ADM) 75-246; GPO stock #017-024-00452-9 Perspectives on Deterrence, DHEW Publication No. (ADM) 74-10: GPO stock #1724-0102-55 Police, Prisoners, and the Problem of Violence, DHEW Publication No. (ADM) 77-364; GPO stock #017-024-00558-4 Strategic Criminal Justice Planning, DHEW Publication No. (ADM) 76-195; GPO stock #1724-00465 ''DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE PUBLIC HEALTH SERVICE ALCOHOL, DRUG ABUSE, AND MENTAL HEALTH ADMINISTRATION 5600 FISHERS LANE ROCKVILLE, MARYLAND 20857 OFFICIAL BUSINESS Penalty for private use, $300 POSTAGE AND FEES PAID U.S. DEPARTMENT OF H.E W HEW 396 THIRD CLASS BULK RATE 028994395 Rockville, Maryland 20857 NOTICE OF MAILING CHANGE 1 Check here if you wish to discontinue receiving this type of publication. © Check here if your address has changed and you wish to continue receiving this type of publication. (Be sure to furnish your complete address including zip code.) Tear off cover with address label still affixed and send to: Alcohol, Drug Abuse, and Mental Health Administration Printing and Publications Management Branch 5600 Fishers Lane (Rm. 6C-02) DHEW Publication No. (ADM) 79-831 Printed 1979 ''