Exception to the Right to Refuse Treatment - Essay Example

?Running head: EXCEPTION TO THE RIGHT TO REFUSE TREATMENT Exception to the right to refuse treatment (school) Exception to the Right to RefuseTreatment Introduction Every person has an inherent moral right to refuse treatment. These are moral rights which help ensure that a patient’s right to self-determination and autonomy are respected by the health care givers and the medical professionals. They help ensure that despite the patient’s illness and incapacity, they would still have control over their bodies and over the procedures and interventions which are to be carried out in their behalf. This right is however not without its exceptions. These exceptions include the patient’s minority, mental incapacity, and in some instances in cases of emergencies when the patient poses a danger to himself or to others. This paper shall consider the exception to this right, more particularly in instances of emergencies when the patient poses a danger to himself or to others. It shall demonstrate how a health practitioner might justify a violation of the moral rule to treat a patient. It shall explain how such justification is determined and what the ethical implications are of such actions taken by the health professional. This paper is being undertaken with the hope of establishing a comprehensive and scholarly understanding of the subject matter, as well as its specific circumstances and applicability to patient situations and circumstances. Discussion The right to refuse treatment is not an absolute right. It may be restricted in emergency cases when the patient poses a danger to himself and others. This may often be seen among psychiatric or mentally ill patients and among suicidal patients who may enter stages of mental incapacity where they pose a danger to the public and to themselves (Kavaler and Spiegel, 2003). In these instances, the welfare of the public supersedes the right of the patient to refuse treatment. The application of this exception can be different in various states, however, its general application is founded on basic standards which are common for most states. This exception is based on the greater good of the greater population or on the welfare of others. The mentally ill patient’s danger to self and to others or his inability to provide for his basic needs is the primary justification for the deprivation of his right to refuse treatment (Videbeck, 2005). Normally, an incompetent person may not be considered capable of caring for himself and of providing for his needs; however, he may also be competent enough to understand the risks which some forms of treatment may pose on his health. In effect, although he is incompetent in some respects, he is still competent in some other purposes (Jeste and Friedman, 2006). It is therefore important to establish an incompetent person’s capacity to make treatment decisions before he can be allowed to refuse treatment. In most US states, the medical profession has recognized and acknowledged the fact that competent, but involuntarily committed individuals have the right to refuse treatment. The courts have even acknowledged the fact that mentally ill prisoners have the right and freedom to refuse unwanted antipsychotic drugs (Jeste and Friedman, 2006). Many states are still however very much divided on the issue of imposing procedural processes to protect such right. Some states have utilized the decision-maker model which basically allows the medical professional to make the informal assessments of the patient’s competence (Jeste and Friedman, 2006). Others however, require the conduct of a formal hearing before a judge or other decision-makers. In these states, mental disorder and involuntary commitment are not sufficient elements to a determination of incompetence in making medical decisions (Jeste and Friedman, 2006). In which case, before a medical treatment is to be imposed on the patient, the judge must establish that the patient is not mentally capable of making treatment decisions, in other words, he cannot weigh the risks, the advantages, and other medical options. The competent and civilly committed individuals do not have the absolute right to refuse antipsychotic medication (Kavaler and Spiegel, 2003). The state has a valid interest in protecting the life and the safety of other patients and of the medical staff from these dangerous mental health patients. The hospital personnel may act towards such patients in ways which are meant to protect their safety and the safety of other patients in the institution. They may segregate the patient or place physical restraints on the patient. During emergency situations, when patients pose a danger to themselves and to others, these patients may be involuntarily sedated (Appelbaum and Gutheil, 2006). This is part of the state’s exercise of its emergency police powers. This power however ends when the danger posed passes (Schwartz, 2003). Analysts insist that in order for the right to refuse treatment with antipsychotic drugs to have any significance at all, simply asserting that a person poses a danger to himself and to others, still does not justify the forced and nonemergency administration of competent civil patients (Schwartz, 2003). Involuntary commitment among mental health patients is bound in the police power of the state (Schwartz, 2003). This power allows the state to interfere in the rights of the individual who is unable to care for himself, including those who have mental illnesses; the end goal of such right is to protect such individuals from themselves. The police power is also a power which is intended to protect society from harm – both potential and imminent (Jeste and Friedman, 2006). In effect, the dangers they pose to society is the basis of their involuntary commitment. They cannot use their right to refuse treatment as a means to perpetuate their violent and dangerous tendencies, which may ultimately harm themselves and others. In instances when a person poses a danger to himself, as in attempts at suicide, medical interference may also be imposed and the right to refuse treatment may be discarded (Reiser, 2008). Common justifications for interventions in suicide include the fact that suicidal persons are not competent to make the autonomous decisions about their well-being; that life is sacred; and if suicide is interfered with, other atrocious acts may be allowed, including assisted suicide (Reiser, 2008). Suicides may, to some extent, be considered autonomous acts, with those making the decisions, more or less being competent individuals. This assessment may be drawn from the fact that mentally ill individuals are not competent individuals as well. Such argument has been used by different authors who address the competence of those who wish to commit suicide based on the fact that they are suffering from depression and when treated would no longer attempt it. In other words, the claim is that in treating depression, those who attempt suicide eventually lose interest in ending their lives (White, n.d). According to Beauchamp, those who kill themselves have a conflicted desire to also live; these people often suffer from depression or delirium and can be treated through drug therapies; they may also be communicating a need for assistance, not so much a desire to end their life (Beauchamp, 1980). Greenberg (1997) also claimed that only about 1% of those who attempt suicide kill themselves within the first years following their initial attempt. From this statistic, he further claims that since these attempters actually do not want to die, policy interventions are crucial to their recovery. Nevertheless, Greenberg (1997) acknowledges the fact that at any point, 15% of suicide attempters may eventually succeed in killing themselves if proper interventions in their behalf are not implemented. Such rate is higher than the regular population. Moreover, many individuals who seek death may not immediately attempt suicide again because they may be interfered with and because they do not want to feel the numbing effects of the drugs treating depression. Therefore, Greenberg’s (1997) contention may not apply to those who are fully competent and who are persistent in their desire to end their lives. Nevertheless, there is much merit in the contention that many suicidal patients are depressed, and they therefore need to be treated for their depression. Individuals have a right to their personal liberties and by association, have to right to avoid the unwanted administration of antipsychotic drugs (Schader, 2009). Therefore mental health patients have a presumed right to refuse treatment via antipsychotic drugs as well. In the absence of informed consent, government mandates however set forth that the state may force medication on patients during emergency situations which require forced medication (Schopp, 2001). Such forced medication may also be allowed under other specific criteria, including situations involving mentally disordered offenders, sexually violent predators, prisoners, state prison transferees, those who are not guilty by reason of insanity and those who are incompetent to stand trial (Protection and Advocacy, Inc., 2008). Therefore, in assessing the right to refuse treatment, the initial query would be on whether or not there is an emergency which would negate the right to refuse treatment. If not, the following query would be on whether or not the state has fulfilled the more specific criteria which call for involuntary medication. If the two general requisites are met, the patient cannot refuse the treatment and the state would forcefully administer antipsychotic drugs (PAI, 2008). Emergency situations are defined as a situation “in which medicating against the person’s will is immediately necessary for the preservation of life of the prevention of serious bodily harm to the patient or others, and it is impracticable to first gain consent. It is not necessary for harm to take place or become unavoidable prior to treatment” (PAI, 2008, pp. 6-7). Moreover, emergency medications must be administered in ways which are not overly restrictive to the patient’s personal liberty; these should be limited to those which are needed to address emergency situations. The emergency medication must also be administered when the treatment staff has already established alternative forms of treatment and how these alternatives would be unable to address the needs of the patient (McCarron, 1990). In further refining the application of the inapplicability of the right to refuse treatment, the element of incompetence needs to be defined. Analysts claim that incompetence may not be presumed in instances when the individual has been treated for a mental disorder or because of a diagnosis of illness, disordered behavior, abnormality, or mental deficiency (PAI, 2008). In establishing capacity to consent, the courts must consider whether a person is aware of her condition; whether he understands the benefits and risks of the proposed intervention; and whether he is able to understand and evaluate the data required of patients from whom informed consent is sought (PAI, 2008). An individual’s “dangerousness” is also defined by mandates of the law. Firstly, a generalized demonstrated danger to others is based on the evaluation of a person’s mental state which includes an assessment of his previous activities and behavior within six years prior to the time that such personal attempted, inflicted, and threatened physical harm on another (PAI, 2008). He must also have attempted, inflicted, or made serious threats of physical harm on another person while in custody for treatment; he must also have attempted or caused physical harm on another and such act has caused him to be placed in custody; and he must have made a serious physical threat upon another person within 7 days after being taken into custody (PAI, 2008). Mentally disordered offenders (MDOs) do not have the right to refuse treatment. These are offenders who are legally committed as a condition of their parole with a team of mental health professionals ruling that they have a severe mental disorder which is not in remission and cannot be put in remission without medical treatment; and by reason of their mental disorder, they pose a physical danger to others (PAI, 2008). It is important to note however that the use of antipsychotic drugs on these mentally disordered individuals must still be under emergency situations only (McCarron, 1990). Without such an emergency situation, the MDOs still have the right to refuse psychotropic drugs, unless the court finds that the MDO is incapable of making decisions about his medical care. Sexually violent predators are also not allowed to refuse treatment. These are individuals who are convicted of a sexually violent offense against two or more victims and who have been diagnosed as possessing of a mental illness which makes them a danger to the health and safety of others (PAI, 2008). They may be medicated involuntarily during emergency situations and even absent emergencies with a finding from the courts that they lack the capacity to make decisions about their medical care. For prisoners, the US Supreme Court has ruled that in order to legally allow the medication of a prisoner who is a danger to himself and to others, the state must prove that the inmate does indeed suffer from a mental illness; that the treatment is medically appropriate or in the best interests of the prisoner; that the treatment is the least intrusive treatment, meaning there are no other choices for treatment; and the state has a significant interest – the safety of the prisoner and of others (Riggins v. Nevada, 1992). This ruling of incapacity, must be under judicial hearing with the prisoner having the right to attend the hearing and present evidence of his capacity. The standard rules apply for prisoners. They may only be medicated involuntarily during emergency situations and after judicial determination of incompetence. Involuntary medications may be administered for up to 72 hours (PAI, 2008). This is based on the 72 hour detention period for establishing the danger posed by the person to himself or to others. A longer period of medication needs judicial hearing and determination. The refusal to treat is also not applicable to those who are deemed guilty by reason of insanity. These individuals do not have the right to refuse medication because they pose dangers to the safety of the general public (PAI, 2008). The same rules on emergency and judicial determination of incapacity must be however established before the prisoner can be subjected to psychotropic drugs. Those who are incompetent to stand trial cannot also refuse treatment. They are incompetent to stand trial if “as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner” (PAI, 2008, p. 12). The same assessment must still be undertaken by the health professionals before psychotropic drugs can be administered to these individuals. In other words, an emergency must still be imminent before the antipsychotic drug can be administered and the individual must be found to be lacking in capacity to give consent by the courts. Conclusion Based on the above discussion, the right to refuse treatment is not absolute. In this case, it cannot be upheld in instances when harm is posed to oneself and to others. Harm is posed on oneself in instances of attempted suicide, especially in times of depression. The depression marks a period of self-harm which necessitates some sort of medical and supportive intervention in order to prevent further harm from befalling the suicidal person. For those who pose a danger to others, especially those who are mentally ill – by medical or judicial determination – the right to refuse treatment also does not apply. In emergency situations where danger is posed on others, psychotropic drugs may be administered. Moreover, in instances when the court determines these individuals to be incapacitated to make sound decisions, their right to refuse treatment may be overruled. Works Cited Greenberg, S. (1997). Euthanasia and assisted suicide: psychosocial issues. Michigan: University of Michigan. Jeste, D. & Friedmand, J. (2006). Psychiatry for neurologists. New York: Humana Press Kavaler, F. & Spiegel, A. (2003). Risk management in health care institutions: a strategic approach. Michigan: Jones & Bartlett Learning. McCarron, M. (1990). The right to refuse antipsychotic drugs: safeguarding the mentally incompetent patient’s right to procedural due process. Marquette Law Review, volume 73(477), pp. 478-512. Protection and Advocacy, Inc. (2008). The right to refuse psychotropic medication for forensic mental health clients. Retrieved 17 June 2011 from http://www.disabilityrightsca.org/pubs/545501.pdf Reiser, K. (2008). Commentary-the right to refuse. Tuftscope. Retrieved 17 June 2011 from http://s3.amazonaws.com/tuftscope_articles/documents/65/7.1_The_Right_to_Refuse_-_Reiser.pdf Riggins v. Nevada 504 U.S. 127 (1992) Schwartz, K. (2003). Police powers during public emergencies: police authority to act without a warrant or court order under the community caretaking doctrine. Assistant Attorney General, Massachusetts. Retrieved 17 June 2011 from http://www.mass.gov/Eeohhs2/docs/dph/cdc/reporting/iq_community_caretaking_function.pdf Schader, B. (2009). Clinical considerations for involuntary mental health treatment of adults in Oklahoma. Oklahoma County Crisis Intervention Center. Retrieved 17 June 2011 from http://www.ablminc.org/A%20Day%20with%20the%20Judges_10-30-09_OKC/Presentations_By_Speakers_pdf/12_Schader_Involuntary%20Mental%20Health%20Treatment.pdf Schopp, R. (2001). The right to refuse care under the police power. Competence, condemnation, and commitment: An integrated theory of mental health law. The law and public policy, volume 13, pp. 189-207 Videbeck, S. (2005). Psychiatric mental health nursing. Philadelphia: Lippincott Williams & Wilkins White, A. (n.d). Refusal of treatment, suicide intervention, and autonomy. Bowling Green State University. Retrieved 17 June 2011 from http://www.spaef.com/file.php?id=616 Read More