interventions? Courts and legislatures have accorded
patients a qualified right to do so, imposing limitations
on the involuntary administration of these treatments.
Psychotropic medication and ECT intrude power-
fullyand directly into mental processes, bodily integrity,
and individual autonomy and, therefore, should be
justified only on a showing of compelling necessity.
To be imposed involuntarily, they must be medically
appropriate and the least intrusive means of accom-
plishing one or more compelling governmental inter-
ests. This standard would be satisfied if treatment
were necessary to protect other patients or hospital
staff from the patient’s dangerousness, but only if less
intrusive alternatives, such as seclusion and restraint,
would not achieve this purpose. When the state’s
parens patriae power to protect those whose mental
illness renders them incompetent to protect them-
selves serves as the justification for their hospitaliza-
tion, this standard also may be satisfied. Many patients
with severe mental illness, however, are competent to
make treatment decisions. Unless they have been
determined to be incompetent to do so, they should
participate in treatment decisions and their informed
consent should be required. When patients seek to
refuse unwanted treatment within the hospital, proce-
dural due process will require a hearing to determine
whether the justifications for imposing treatment
involuntarily are satisfied.Communication and
Visitation Rights
State statutes typically protect a patient’s right to com-
municate with others. These statutes effectuate the
patient’s First Amendment right to communicate with
those outside the institution. The institution may place
reasonable time, place, and manner restrictions on com-
munication and visitation, but it should not be unduly
restricted. Patients should enjoy a broad right to freely
communicate with and receive visitation from counsel,
judges, the press, and friends and relatives.
Free and open communication between patients and
the outside world serves as important First Amendment
interests, including the deterrence and exposure of
institutional abuse. Moreover, free expression has con-
siderable therapeutic value. By continuing the patient’s
ties to family and friends, it also will facilitate the
patient’s reentry into the community and the success-
ful resumption of community life.Right to Be Free of Unreasonable
Seclusion and Restraint
Physical restraint and seclusion are standard measures
used by hospitals to protect the patient and other
patients and staff within the institution from a patient
who is dangerous to self or others. Psychotropic
medication also sometimes is used for this purpose.
All these constitute an additional deprivation of liberty
protected by the due process clause, and as a result,
they may not be used arbitrarily and must be justified.
They should be limited to emergency situations when
other measures have failed to prevent serious and
imminent harm. Moreover, as clinical tools, these tech-
niques must be medically appropriate for the patient
and should not be used as punishment, for the conve-
nience of staff, or to ease hospital administration.
State civil commitment statutes typically contain
protections against unreasonable or arbitrary use of
these techniques, and regulations of the U.S.
Department of Health and Human Services, applica-
ble to all state and local facilities that accept federal
funding, limit their use to emergency situations
needed to ensure the patient’s physical safety when
less restrictive interventions have been determined to
be ineffective. Because all these techniques involve
serious intrusions on liberty, the least restrictive alter-
native principle of constitutional adjudication applies.
Under this principle, all feasible alternatives to these
intrusive techniques should first be attempted. Hospi-
tal staff should receive training in these alternative
methods of containing the risk of violence and should
be required to document in the patient’s record the
various approaches attempted. When other approaches
have not succeeded and violence appears imminent,
then seclusion, restraint, or medication may be con-
sidered, but the patient should be given the opportu-
nity to choose the alternative he or she finds less
intrusive and more acceptable. A good way to obtain
patient preferences in this regard is through the use of
advance directive instruments.
Because these techniques infringe on liberty, they
also trigger procedural due process requirements.
When time permits, patients should be given notice
and at least an informal hearing concerning the need
for these measures. When an emergency requires
immediate action, however, alternative administrative
safeguards should be used in lieu of a hearing, includ-
ing detailed entries in the patient’s chart, authorization
by medical staff, and administrative review by a546 ———Patient’s RightsP-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 546