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Should competence be coerced?

DL was arrested and charged with rape. He is accused of assaulting a neighborhood woman with whom he is only casually acquainted.

According to police records, DL manifested psychotic symptoms--including auditory hallucinations and paranoid delusions-at the time of his arrest. He was quickly transferred to the forensic unit of the state psychiatric hospital and examined by a psychiatrist, who concluded after a thorough examination that he was not competent to stand trial. Following a brief court hearing, DL was returned to the forensic unit to receive treatment, including neuroleptic medication, designed to return him to a state of competency. Competency-which includes such factors as being able to understand the criminal charges, understand the elements of a criminal trial, and participate in one's defense-is required for a defendant to be able to stand trial.

Shortly after being placed on medication, DL's psychotic symptoms remitted. According to the state-appointed forensic psychiatrist who examined him, DL is now oriented to time and place, is not hallucinating or delusional, and is able to participate in his own defense in court. The psychiatrist thus has informed DL's court-appointed attorney, the prosecutor, and the court that he is competent to stand trial.

DL's attorney originally planned to enter a plea of "not guilty by reason of insanity" on his behalf. The attorney is convinced that at the time of the rape, which DL admits having committed, he was psychotic and unable to distinguish between right and wrong. However, now that DL has been medicated, is competent, and appears quite "normal," the attorney is concerned that a jury will have a difficult time believing that DL was insane at the time of the rape.

On the advice of his attorney, DL refuses continued neuroleptic medication. He believes that it is in his best interests to risk the likely return of psychotic symptoms to avoid having to face a jury as a competent defendant. DL understands that this decision may mean that he will remain for years on the forensic unit of the psychiatric hospital, technically awaiting competency.

The prosecutor is outraged that the defense attorney has advised his client to refuse therapeutic medication in order to avoid trial. She argues that the defense attorney is seeking to deprive his client of needed medication, contrary to his client's best interests, and also is undermining the state's legitimate interest in resolving a pending criminal matter.

Does DL have the right to refuse treatment of his psychotic symptoms to avoid trial in criminal court? Is it proper for DL's attorney to advise his client to do so?

By now it is well accepted that voluntary psychiatric patients have a broad-based right to refuse treatment, as long as standard informed consent procedures are followed. Paternalism has its limits. However, there is no consensus with respect to involuntary patients. Case law is evolving and there are a number of conflicting court decisions. It is not clear to what extent involuntary patients, particularly those who are hospitalized following arrest on a criminal charge, forfeit the "right to refuse" held by voluntary patients.

Ordinarily, debate about the right to refuse centers on risks to the patient or to third parties who may be affected by the patient's decision to forgo treatment. In this case there is also an additional concern: whether the public's interest in resolving a pending criminal matter should take precedence over the patient's right to self-determination.

Only the most orthodox libertarians would argue that a psychiatric patient has an inviolable light to determine his or her own fate. There are ample precedents where compelling public interest trumps individual rights. For instance, the well-known Tarasoff case, and others like it, demonstrates that prima facie rights ordinarily held by recipients of mental health services sometimes give way when they clash with public interest. Similarly, the widely respected Wigmore criteria make it clear that there is a limit to psychiatric patients' right to privileged communication in the face of some form of public peril.

The challenge in the present case is locating the fine line that separates justifiable coercion from gratuitous intervention. Viewed narrowly, DL may have the right to refuse medication if it cannot be demonstrated clearly that he poses a threat to himself or others. In the end, however, it seems clear that what DL and his attorney propose is just one of a large number of imaginative but questionable tactics that a defendant might engage in to avoid criminal trial. In principle, a defendant can refuse to leave his jail cell to be transported to court, shout at the judge continuously to disrupt judicial proceedings, refuse to disclose his identity to the judge, or engage in other courtroom antics designed to postpone or prevent a trial. Defendants who engage in such practices typically are threatened with contempt for interfering with the court's mission, and an attorney who encourages such behavior may be censured. It may not be pleasant, but criminal defendants often are required to do things they do not want to do to facilitate their adjudication. Why should a manipulative tactic involving refusal of medication be regarded any differently?

And what about the attorney's behavior? Although some might give him points for creativity and novelty, the attorney's advice seems to land outside the boundaries of professional responsibility. Is it right for an attorney to advise a client to engage in a practice that threatens his health and that may lead to long-term languishing in a psychiatric institution? Although restoration and maintenance of the client's mental health by use of medication may come with a significant price, is it not odd for an attorney to encourage a client to engage in what is certainly a self-destructive health care practice?

Certainly we would not tolerate an attorney who advises his or her competent client to take drugs that will induce psychotic symptoms to avoid trial. Is not the advice offered by DL's attorney equally unacceptable? Such advice runs counter to the proscription in the attorneys' code of professional responsibility prohibiting practices that damage clients. In effect the attorney's advice may lead DL down a path toward emotional and cognitive imprisonment as an alternative to incarceration in a prison cell. Under these circumstances, can DL's consent be considered truly voluntary?

One might expect DL's attorney to claim that deliberately returning his client to a psychotic state is necessary and justifiable to demonstrate to a jury his client's insanity at the time of the rape. This argument fails because if the withdrawal of medication successfully reproduces DL's psychotic symptoms, it is unlikely that he will be competent to stand trial and have to face a jury.

A hard-nosed attorney might argue that I have interpreted too narrowly the lawyer's obligation under existing standards of professional responsibility. But the attorney's stratagem in this case goes too far. He has crossed the outside border of overzealous representation of his client.

DL is, according to this scenario, able to participate in his own defense. His psychotic symptoms have "remitted." He is competent to make decisions for himself, to decide what is in his best interests. He knows the consequences of his decision to refuse treatment, namely that he will remain in the forensic unit of the psychiatric hospital.

If we take seriously the autonomy, or the right, of an individual to make choices affecting his or her life and liberty, we can understand how DL might choose this alternative to avoid the danger of being incarcerated as a convicted rapist in a prison facility. Surely this is not an irrational decision. It is instead a decision people similarly situated might make in consideration of their own best interests. Only if we assume that the forensic unit of the psychiatric hospital is a far worse setting or outcome than a prison can we maintain that DL's decision is irrational. DL has connected a decision to real facts by a process of reasoning or reference.

So DL clearly has the right to refuse treatment of his psychotic symptoms to avoid trial in the criminal court. That much is clear.

How proper was the lawyer's advice? Lawyers counsel clients in many different styles, ranging from a high respect for autonomy, in effect telling the client "you decide," to the paternalistic approach of "let me tell you what you should do." Regardless of the style or approach, a responsible attorney would discuss with DL the alternatives and attempt to understand, and help DL work through his interests, concerns, and long-range goals before approaching the decision of how to proceed.

The attorney's advice to refuse medication could well be a short-range strategy. Perhaps the attorney believes the chances of conviction for rape would be reduced if DL spends some time on the forensic unit of the psychiatric hospital. Or the attorney may have reliable information about prison realities for criminal defendants (for example, that rapists or individuals with DL's characteristics are peculiarly subject to sexual assault unprotected by prison authorities). Even if DL asked his lawyer to make the decision for him (a not uncommon phenomenon in professional practice), the decision to forgo neuroleptic medication may be appropriate and respectful of DL's autonomy as a decisionmaker, so long as the lawyer knows her client well enough to project that such a decision is an honest reflection of DL's values and perceived interests.

In weighing the pros and cons of proceeding to trial or refusing to take medication, the attorney's description of the risk of conviction is the most critical element. As any physician who has described the risk of death to a patient knows, some risks generate such strong emotional reactions that emphasis on the risk can virtually assure a decision. A lawyer can easily manipulate a client by focusing on terrifying risks. The fear of some people about going to jail is so intense that they would take virtually any action to avoid it. If the attorney overemphasizes the risk of a jail term, she distorts significantly DL's decision.

The susceptibility of clients and patients to manipulation through nuanced counseling is the basis of enormous professional power. This power is often abused. But when it is harnessed to the well-being of patient or client, it becomes the source of that magical healing that is the special joy and purpose of being a professional.

The question of coerced medication confronting DL and his attorney remains a matter of deep constitutional controversy. In its February decision in Washington v. Harper, the Supreme Court permitted states that follow appropriate administrative procedures to medicate forcibly mentally ill prison inmates who are "gravely disabled or represent a significant danger to themselves or others." DL is not a prisoner because he has not been convicted, but Washington v. Harper may well signal future developments that could apply to competence-to-stand-trial and civil commitment settings. The irony is that DL, who has refused medical treatment to avoid trial, may be compelled by the state to take medication that would put him back in the courtroom. Yet the dissent of Justices Stephens, Brennan, and Marshall provides a needed reminder of the limits to coercing competence in our society:

The invasion of a citizen's liberty ... is degrading if it overrides a competent person's choice to reject a specific form of medical treatment .... When the purpose or effect of forced drugging is to alter the will and the mind of the subject, it constitutes a deprivation of liberty in the most literal and fundamental sense .... The liberty of citizens to resist the administration of mind altering drugs arises from our Nation's most basic values.
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Title Annotation:includes two commentaries; case studies; competence to stand trial
Author:Reamer, Frederic G.; Kelly, Michael J.
Publication:The Hastings Center Report
Date:Jul 1, 1990
Previous Article:Foreclosing the use of force: A.C. reversed.
Next Article:Principles of Biomedical Ethics, 3rd ed.

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