commitment is extended. Modern civil commitment
statutes also guarantee these rights as a matter of state
law and afford additional rights to patients, including
the right to convert their status from involuntary to
voluntary admission, to the confidentiality of their
clinical records, and to have access to their records.Right to Treatment
Many state mental hospitals suffer from chronic under-
funding that may undermine their ability to deliver
effective care and treatment, the very function for which
they exist. Although psychotropic medication has
become the treatment of choice for the major mental ill-
nesses, other forms of treatment are needed to prepare
patients for discharge and the resumption of life within
the community with a high level of functioning. These
include psychotherapy and other verbal approaches,
behavioral therapy, occupational therapy, and social
skills training. Psychotropic drugs should be used in
conjunction with these other forms of treatment, not as
an exclusive therapeutic intervention. Inadequate
staffing and funding at many mental institutions, how-
ever, sometimes prevents this from occurring.
Can patients assert a right to more treatment than
the hospital is delivering? Such a right to treatment is
inherent in the fairness principles embodied in notions
of due process and is supported by the often vaguely
worded statutory right to treatment that state law typi-
cally protects. Due process requires a reasonable
relationship between the nature and duration of com-
mitment and its purposes. The purposes of commit-
ment are to protect the best interests of patients who
are incompetent to make hospitalization and treatment
decisions for themselves or to protect the community
from the patient’s potential dangerousness. Although
confinement alone might seem to satisfy this latter pur-
pose, when those with mental illness who are predicted
to be dangerous are confined in a mental hospital
rather than a prison or a preventive detention facility,
the rationale for hospitalization would seem to be the
promise of treatment for mental illness designed to
reduce the risk of dangerousness. Otherwise, the depri-
vations and stigma associated with hospitalization
would be unnecessary and hence arbitrary, in violation
of due process. If treatment can reduce the patient’s
dangerousness, it may reduce or eliminate the need for
further hospitalization, thereby making hospitalization
without the provision of such treatment an unnecessary
and arbitrary deprivation of liberty. When commitmentis justified on parens patriae grounds, the asserted
justification is that hospitalization will provide
treatment that is necessary to ameliorate the
patient’s condition that he or she would not choose
for himself or herself as a result of his or her incom-
petency. If the hospital fails to provide adequate
treatment tailored to the patient’s needs, it would
constitute an arbitrary deprivation of liberty in vio-
lation of due process.
Several lower federal courts have recognized that
patients involuntarily committed have a legally
enforceable right to adequate treatment grounded in
due process and that hospitals may be mandated
to provide needed treatment and services. The U.S.
Supreme Court, however, has not gone this far. The
Court has recognized that when hospitals fail to pro-
vide adequate treatment, it results in an unjustified
infringement on liberty for patients who can survive
safely in the community. In a case involving an insti-
tution for those with mental retardation, the Court rec-
ognized that residents have a due process right to
minimally adequate facilities, reasonable habilitation
and training, and freedom from undue restraint.
Whatever the basis of their hospitalization, depriv-
ing patients of the treatment needed to restore them to
a degree of functioning that will allow return to
community life consistent with their safety and that of
the public would render hospitalization an unjustified
deprivation of liberty. It also could exacerbate their
mental illness in ways that require lengthier hospital-
ization than otherwise would be needed. Without the
provision of needed treatment that could ameliorate
suffering and restore functioning, detention in a hos-
pital, with all its deprivations and stigmatization,
would seem unnecessary, purposeless, and arbitrary.
The massive curtailment of liberty that psychiatric
hospitalization imposes can only be justified if such
hospitalization is beneficial, and not harmful, to the
mental health of those subjected to it. Hospitalization
without adequate treatment, therefore, violates the
essentials of due process.Right to Refuse Treatment
Although treatment is an essential purpose of hospital-
ization, certain treatments delivered in the hospital,
notably psychotropic medication and electroconvul-
sive therapy (ECT), are intrusive and impose direct
effects and side effects that many patients find highly
unpleasant and debilitating. Can patients refuse thesePatient’s Rights——— 545P-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 545