170 7 Court and the Legal System—Civil ForensicsCompetencyA competent consent to treatment requires that the individual makes a reasoned
decision to accept or refuse a proposed procedure. As noted, this generally means
that the individual understands the treatment, its risks and benefits, and the potential
alternatives. Thus, weight is not placed on the final decision itself, but rather on
the manner in which the person came to such a conclusion.
An individual is not regarded as incompetent simply because his or her decision
is not consistent with the majority of patients, is irrational, is not in the person's
best medical interest, or is not consistent with the psychiatrist's recommendation.
In the case of Alyssa, her refusal of antipsychotic medication, given the potential
side effects, is not an incompetent decision for the reasons mentioned above. Her
choice must be assessed in light of what she considers a better quality of life (Levy
and Rubenstein, 1996).
Thus, the standards for competency concerning the right to refuse treatment
are similar to other competencies. While there is currently no standard test to
determine competency, it generally follows that the individual must understand the
implications of the treatment and be able to make a rational choice based on this
understanding. If the individual is not competent to make such a decision, another
important controversy arises. That is, who makes the decision in his or her place?
Generally, this decision is made by a panel of psychiatrists who must decide if,
in fact, the individual is not capable of making such a decision and whether the
proposed treatment is in the individuals best interest.
Following the Court's decision in Washington v. Harper (1990), however, no
finding of incompetency is necessary if the individual is judged to be "mentally
ill" and either "gravely disabled" or poses a "likelihood of serious harm" to self or
others (Slobogin, 1994, p. 687). Thus, similar to civil commitment law, individuals
may not have a right to refuse treatment if it is in the states best interest to protect
the community. For further information, see the section "An Offender's Right to
Refuse Treatment."
Forensic Psychology and Policy Implications
One of the prevailing controversies regarding the right to refuse treatment concerns
its theoretical application versus its actual or practical application. In theory, the right
was intended to place final decisions regarding the type and extent of treatment
in the hands of the citizen rather than the medical or mental health professional
(Arrigo, 1996). In practice, however, the patient merely has the right to object to
treatment decisions made by the attending clinician. In such cases, the decision
may be reviewed by a team of clinicians to determine the appropriateness of the
chosen treatment. Thus, in practice, the final decision concerning treatment of the