Kress on Coerced Treatment

New on SSRN: Kenneth J. Kress, Must the Criteria for Initiating Coerced Treatment or Commitment be the Same as the Criteria for Ending Coerced Treatment or Commitment? (forthcoming in Behavioral Sciences and Law). The abstract:

That coerced treatment must end when the criteria for initiating coerced treatment cease to apply appears to be universally accepted by courts and commentators. Moreover, the consensus appears to be justified by a steel-trap argument. If coercion is justified only when the patient is mentally ill and incapable, because then the patient lacks autonomous capacities or practical reasoning ability, then those justifications have no force when the patient either is not mentally ill or is capable. A parallel claim holds for civil commitment. If coercion is justified only when the patient is mentally ill, and either incapable or dangerous (or both), because then the patient lacks important properties of moral agency, such as autonomous capacities or practical reasoning ability, or must be restricted to protect the public or himself, then those justifications have no force when the patient is not mentally ill, or either capable or not dangerous. This is not surprising as commitment is one form of coerced treatment. Commitment isolates the patient from society, enhances opportunities for observation and confines the patient in the serene and less stimulating environment of the hospital as a drug-free treatment that reduces risk of harm, and marginally treats the illness.

Because this claim is universally accepted, I shall call it the received wisdom. Despite this powerful consensus, I believe that the received wisdom rests upon a conceptual confusion.

I argue against the received wisdom as a normative, justificatory claim. I then defend the claim that the standard for release can and should be more difficult to meet in certain actual or possible circumstances by refuting the steel-trap argument and its variations. Responding to an objection, I describe an array of positive arguments supporting the claim that the criteria for release should be harder to meet than the trigger for initiating commitment or coerced treatment.

I know this will be popular with some of my readers.