The Right to Treatment and the Right to Refuse Treatment

Lloyd I. Sederer, M.D.
Adjunct Professor, Columbia/Mailman School of Public Health
Medical Editor for Mental Health, Huffington Post/AOL

All patients have both a right to treatment and a right to refuse treatment. These rights sometimes become the centerpiece of debate and dispute for people who are hospitalized with an acute psychiatric illness.

The Right to Treatmentsederer

There is a long legal history on the right to treatment. Much of the law derives from court cases in the previous century involving people who were admitted to state psychiatric hospitals where they languished without proper treatment, sometimes for many years. Laws compelling a right-to-treatment law developed and became instrumental to the quality-controlled public psychiatric hospitals that exist today. In fact, in order for public psychiatric hospitals to receive Medicare and Medicaid (and other third-party) payment, they must obtain the same national certification as academic medical centers and local community hospitals. For patients and families, this means that a person admitted to a public psychiatric hospital has a right to receive—and should receive—the standard of care delivered in any accredited psychiatric setting.

The Right to Refuse Treatment

It may seem odd that a person can be involuntarily admitted, or “committed,” to a hospital and then refuse treatment. But the right to refuse treatment is also fundamental to the legal requirements for psychiatric treatment.

Someone who enters a hospital voluntarily and shows no imminent risk of danger to self or others may express the right to refuse treatment by stating he or she wants to leave the hospital. But a person admitted involuntarily, due to danger to self or others, cannot leave, at least not right away. However, despite having the authority to keep the patient in the hospital, the professional staff cannot treat the person against his or her will, except by court order.

The concept of a right to refuse treatment was built on basic rights to privacy, equal protection under the law, and due process. In other words, involuntarily hospitalized patients still have a right to decide what happens to their bodies.

Unfortunately, the right to refuse treatment can, and does, result in some patients being locked up in a hospital where doctors then cannot proceed with treatment. What’s worse, and deeply ironic, is that insurance companies may refuse to pay, stating there is “no active treatment.” This state of financial affairs, by and large, does not happen in state psychiatric hospitals, which represent the true safety net of services for people with serious and persistent mental illnesses, because these hospitals are not wholly dependent on insurance payment and cannot refuse to treat someone who cannot pay.

Exceptions to the Rule

There are exceptions to a patient’s right to refuse treatment. In an emergency, all bets are off. A doctor may provide involuntary treatment, usually a medication given by injection or by mouth, but only to control the emergency—which, again, is defined as “an imminent danger to self or others.” Whatever treatment is provided in an emergency cannot be continued after the immediate danger has passed, unless the patient agrees and gives informed consent. Clinicians cannot continue the medication, even if it could prevent another emergency situation; the patient has the right to decide whether to continue or not.

For involuntary treatment (treatment without consent) to be delivered outside of an acute emergency, the doctor and hospital must petition a court to order it. Laws vary from state to state and, of course, no two judges are alike.

Generally, judges rule in favor of well-prepared doctors and hospitals that show that

  1. the treatment is necessary for safety and recovery;
  2. all efforts at voluntary treatment were exhausted;
  3. family and others were engaged to help persuade the patient to accept care (and were not successful); and
  4. the benefits of treatment are likely to outweigh its risks.

Inpatient stays often last several weeks (or months) longer if court-ordered treatment is required. Notably, as clinicians have seen, once a court order is obtained, almost all patients comply with treatment within a day or so, and then, hopefully, proceed to respond to treatment.

Solutions

We need better solutions than coercion—whether it is involuntary commitment by doctors (or courts) or involuntary treatment (ordered by courts). As I wrote in the Wall Street Journal earlier this year, “[g]ood intentions spawned [laws that protect patient privacy], but in practice they can interfere with or delay the delivery of necessary care and crucial communication between caregivers and families [. . .] [L]aws are made to serve the people. Let’s ask the families of people with serious mental illnesses what changes in law and clinical practices could better help their family members.”

What changes, if any, do you think will facilitate effective emergency care for people with mental health conditions that impair their decision-making abilities? 

What do you think is the appropriate role of families and physicians in treatment decisions?

Have you or a loved one created an advance directive, a plan that designates someone to make decisions in emergency situations when decision-making is impaired? How can we encourage people with mood disorders and their mental health providers to make advance planning a part of the treatment and recovery process? 

2 comments
Larry Drain
Larry Drain

My view is expressed in the following quote from john grohol: “As a society, we’ve shown time and time again that we cannot devise a system that won’t be abused or used in ways that it was never intended. Judges simply don’t work as check for forced treatment, because they don’t have any reasonable basis on which to actually rest their judgment in the short time they’re given to make a determination.

The power to force treatment — whether through the old-style commitment laws or the new-style “assisted outpatient treatment” laws — cannot be trusted to others to wield compassionately or as an option of last resort.

What should be good enough for the rest of medicine should be good enough for mental health concerns. If an oncologist can’t force a cancer patient to undergo life-saving chemotherapy, there’s little that can justify our use of this type of power in psychiatry and mental health.”

larry drain

Randikranz
Randikranz

This is such a complicated issue. If a person isn't in their right mind it would seem that he wouldn't be able to make a rational decision even after the imminent danger to himself and others has passed. I am not a doctor but I would think someone admitted against their will would go through a process of coming to terms with hospitalization. It would almost than make sense to determine a time period for treatment to continue to not only remove any imminent danger but to stabilize the patient. This stabilization period would have to be monitored by not only a doctor but an intermediary such as a peer support specialist. It also seems that even if a patient refuses treatment there should be manditory counseling required. Another matter that can confuse this issue is that patients who most need care are those who cannot think rationally. About ten years ago my mother was hospitalized. Her health was severely compromised by the long term effects of uncared for diabetes. She stopped eating after having a heart attack and losing kidney function. There is a strong history of mental illness in her family but she had never been treated. At that time, a psychiatrist was called in to talk to her. She said she didn't want to talk to him and he left. He was paid by the insurance company for a visit lasting three minutes. My mother passed about eight months after that at the age of 62. There has to be some parameters created to get treatment to those who cannot make decisions rationally and there has to be some persistence on the doctors side to provide treatment.