Wednesday, February 09, 2005

Perlin on Counsel in Right to Refuse Treatment Cases

Just posted on SSRN: Michael L. Perlin, And My Best Friend, My Doctor, Won't Even Say What It is I've Got: The Role and Significance of Counsel in Right to Refuse Treatment Cases (forthcoming in the San Diego Law Review). The abstract:

For the past three decades, scholars have carefully considered
the scope of the right of involuntarily committed psychiatric
patients to refuse the administration of medication from a rich
array of perspectives, including, but not limited to, clinical
perspectives, civil libertarian perspectives, philosophical
perspectives, and political perspectives. Yet, virtually all of
this - remarkably - passes over what I believe is the single
most important issue in real life. This issue is the most
relevant to the actual (as opposed to paper) existence of the
right and the actual (as opposed to paper) implementation of
that right: the availability and adequacy of counsel to
represent patients seeking to assert this right to refuse. In
spite of the extensive literature and case law that has
developed in this area of the law, the topic remains egregiously
under-discussed and under-litigated.

Simply put, if active, trained counsel is not provided for
patients seeking to interpose this right, then the right becomes
nothing more than a paper document: useless and meaningless (and
perhaps, counterproductive) in the real world, and yet another
in a series of shameful pretexts that dominate this area of the

In this paper, I discuss: (1) the generally mediocre job done
by lawyers in the involuntary civil commitment process; (2) the
equally mediocre job done in the right to refuse treatment
process, especially where both courts and legislatures have
failed to articulate a universal right to counsel in right to
refuse cases;(3) the reasons why counsel is so critical in such
cases; (4) the significance of what I call sanism and what I
call pretextuality, and the application of a therapeutic
jurisprudence mode of analysis to the topic in trying to
understand all of this, and (5) these recommendations for the

-Each state should adopt procedures that guarantee the
appointment of effective, trained counsel to represent patients
at both involuntary civil commitment hearings and at right to
refuse treatment hearings.
-State attorneys general and county counsels should insist that
lawyers representing hospitals in such cases be equally
effective and trained.
-Judicial educational agencies such as the National Judicial
College should offer regular courses in all aspects of the right
to refuse treatment for state court judges.
-All participants in the system should acknowledge the ways that
sanism and pretextuality corrupt the judicial process
(especially this aspect of the judicial process), confront that
corruption, and take seriously the significance of that
-A therapeutic jurisprudence lens should regularly be applied to
this entire area of the law, and courts should begin to consider
the issues discussed here through a therapeutic jurisprudence
-Scholars should seriously consider adding this issue to their
research agendas.


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