I think that prisoners should have a less robust right to refuse medical treatment than the rest of us because they, by definition, have lost their right to personal autonomy. This isn’t to say it shouldn’t exist, but it is to say that prison officials should have a limited ability to overrule the prisoner’s refusal, say when the prisoner’s decision affects good order or is intended to cause self harm. Thus, I believe prisoners on hunger strikes should be able to be force fed if their health begins to deteriorate.
Mentally ill prisoners should have even less say in this regard, particularly with regard to refusing anti psychotic medications. Jared Lee Loughner, the Tuscon shooter illustrates why–and good for the Court for permitting officials to forcefully medicate him. From the AP story:
The man accused in the Arizona shooting rampage that critically injured Rep. Gabrielle Giffords kept himself awake for 50 hours after an appeals court halted forced medication. He walked in circles until he developed sores then declined antibiotics to treat an infected foot. Already thin, he stopped eating and shed 9 pounds. U.S. District Judge Larry Burns described Jared Lee Loughner’s behavior to explain his refusal to overrule prison doctors who decided to resume forced medication July 18. The drugging, he said, “seems entirely appropriate and reasonable to me.”
No kidding. Besides, the probable legal tactic here is to keep Loughner from being treated effectively so he won’t become competent to stand trial for murder.
The right to refuse treatment is important. But just as most prisoners and the forced hospitalized mentally ill lose their right to vote, so too should their right to determine the course of their own care be subject, at least in limited circumstances, to being vetoed by appropriate prison or hospital officials, subject, as here, to legal review.
August 28th, 2011 | 5:34 pm
I don’t disagree with the actions taken in this case, but I disagree with your title, Wesley. It’s too broad. People who are going to hurt themselves or someone else can loose some “rights” over their own treatment, however, one cannot deny that right to the mentally ill and prisoners in general. Otherwise, we open up the door to dehumanization and One Flew Over the Cuckoo’s Nest scenarios. As someone with a mental illness, I feel quite strongly about this.
Wesley J. Smith Reply:
August 28th, 2011 at 6:08 pm
safepres: i think we basically agree. This was a hard headline to write because to be fully nuanced would make it as long as the post.
August 28th, 2011 | 11:37 pm
My dad practiced psychiatry for 35 years, and as he watched the mental health care system in the state deterioriate around him, he developed a saying – that these days, patients “die with their rights on” (as in, with their boots on). My brother is a consumer of mental health services, and I think I agree with Wesley, though I appreciate the caveats that Safepres brings up.
One time when my brother was having a particularly bad psychotic episode in his apartment, my sister tried to talk with the county public housing coordinator in charge of cases like his (e.g. on Medicare and Medicaid as well as SSI disability). She was told that the only way he could qualify for the housing they had available was if he was in danger of dying within 24 hours if he were left to the streets. In other words, if he could survive living on the streets for more than 24 hours, he was ‘too well’ to be allowed into the program.
Think about it – how well would a person with all their wits about them do, living homeless on the streets of a major city? Now take away all that accurate perception, logical problem-solving, social skills, and personal inner resources – now how would they do? The county’s policy itself is insanity on stilts.
I do understand that the institutions were cruel, but I believe the autonomy pendulum has swung too far the other direction.
August 29th, 2011 | 1:34 am
You have often had cause to refer to the World Medical Association’s Declaration of Helsinki (which lays out the ethical principles for medical research using human subjects). One of these days you should re-read the WMA’s Declaration of Malta which explicitly states that “hunger strikers should not be given treatment they refuse”. This view is also held by the American Medical Association and several other physician groups. If strapping an unwilling prisoner down and feeding him via a nasogastric tube does not constitute a “violation of his dignity” then, pray, what does?
A central concept here is competence. Mentally competent individuals have every right to refuse treatment, even if they do happen to be incarcerated or mentally ill (unless, of course, they constitute a danger to others – for instance, a prisoner with a contagious disease may be forcibly treated to prevent its spread).
Even the practice of “medicating defendants into competence” has been severely restricted by the US Supreme Court. It may be justified in the Loughner case but it should only ever be an option of last resort.
K-Man Reply:
August 29th, 2011 at 4:03 pm
@Raven Chukwu, the WMA’s statement about hunger strikers would seem to be pertinent mainly to those held for largely political reasons. A common criminal should not have the “right” to go on hunger strike or refuse lifesaving medical treatment. When I worked in corrections, the state did everything to prevent inmates from engaging in self-harm, for obvious reasons of humaneness and liability. That included forcibly feeding “hunger strikers”, which inmates in an American prison context do mainly to seek attention.
To remind everyone: the criminal was not overly concerned with “violating the dignity” of his victims when he harmed or killed them.
Many Americans would also agree that the best “medical” treatment for people like Loughner would be a .45–caliber slug to the head. We’re tired of dealing with people who commit heinous acts and then want to be drama queens in prison.
(But then again, I agree with Dr. Thomas Szasz about the “myth of mental illness” when it comes to blaming that instead of the culprit him/herself for bad deeds against others. Note that voices in one’s head never tell one to help one’s neighbor, but to kill one’s neighbor. But—bad, bad K-Man! I pointed out the elephant in the room.)
Raven Chukwu Reply:
August 30th, 2011 at 1:58 am
@K-Man, Refer to the text of the declaration itself. It begins with the preamble “hunger strikes occur in various contexts” and ends with the unequivocal statement:
It doesn’t matter if you feel the prisoner is doing it merely to “seek attention”. It’s still inhumane to force-feed him (if he is mentally competent).
“Common criminals” still have a right to humane treatment. Surely that’s not a controversial statement.
HistoryWriter Reply:
August 30th, 2011 at 12:49 pm
@K-Man,
“Note that voices in one’s head never tell one to help one’s neighbor, but to kill one’s neighbor.”
You seem to be denying the validity of any kind of insanity defense, a position that flies in the face of current medical and psychiatric knowledge. How can you know for a fact that schizophrenics never hear voices telling them to help others; only voices telling them to commit evil acts? Maybe that’s how some random acts of kindness come to be performed. And if schizophrenics DO hear voices, does that make those voices any less of a reality to them? Isn’t the mis-percption of reality one of the underlying characteristics of psychosis?
I think you ought to consider the old adage: “Neurotics build castles in the air; psychotics live in them.” Or perhaps, “crazy is as crazy does.” It seems to me pretty much a matter of definition that people who commit major atrocities aren’t playing with a full deck (i.e., are mentally abnormal, therefore “insane”).
HW
K-Man Reply:
August 30th, 2011 at 6:19 pm
@HistoryWriter, Canada and a number of states have ended or gutted the insanity defense for crimes. That says a lot. And has anyone corresponding here ever actually heard of someone who hears voices telling him to do good things? I am far from the only one to note this interesting disparity, and yes, I do deny an insanity defense when grave harm to others has been done. With rare exceptions, close examination of the facts in most such cases show a certain amount of planning and forethought—not the hallmarks of genuine insanity. Even Andrea Yates showed evidence of this when she drowned her five children in Texas, despite well documented mental illness.
If a prisoner is truly mentally incompetent, then force-feeding to prevent harm or death would seem to be mandatory, not a “violation of his dignity”. To argue otherwise results in a situation not unlike that of Terry Schaivo.
Despite the pontifications of the medical industry in such lofty declarations as that of Helsinki, note that normal hospitals will resort to force-feeding just as will prisons. When the chips are down, preserving life overrides such (to be honest) asinine statements.
Actually, I suspect that the Helsinki and AMA positions are intended to lay the groundwork for routine starvation and dehydration of those deemed “mentally incompetent” and maybe eventually many of those who are incarcerated for crime. “He went on a ‘hunger strike’—we had to let him die, heh heh. Just like the hundreds of others who did the same thing in this facility this year. We had to let them all die.” The claim that force-feeding somehow “violates the dignity” of such people smacks of the new bioethics of “futile care” and “conservation of limited space and resources”.
But K-Man has been accused of being excessively cynical before. What say you, Wesley?
August 29th, 2011 | 4:13 pm
I do understand that the institutions were cruel, but I believe the autonomy pendulum has swung too far the other direction.
I agree with you except I would define the problem differently.
This original post talks about two different situations – both involving boundaries that are currently not working very well for us and need to be improved:
1) the boundary separating ordinary citizens from people who are incapable of giving truly informed consent
2) the boundary separating ordinary citizens from the people who cannot or will not live within our society’s behavioral expectations
But trying to talk about either situation – let alone both together – with the vocabulary we’ve got is simply inadequate. We are left struggling with terms that convey either way too much or nothing at all, metaphors that don’t feel right, and anecdotes that we hope will convey general principles.
We talk about “rights” as if the “right” to not be institutionalized against our will is the only “right” involved here. Is that really all we as a society owe our members? What about the obligation to care for the sick – or at least keep them out of overtly harmful situations? Aren’t there any “rights” involved there?
I think the first thing we need are better, more accurate, precise, humane, useful categories, definitions, boundaries, distinctions, and descriptions.
HistoryWriter Reply:
August 30th, 2011 at 1:08 pm
@Blake,
I think you’re right. Unfortunately the penal system dispenses punishment in a one-size-fits-all mode, when the manner in which we deal with the truly insane should differ from the manner in which we deal with the fully cognizant, intentional sociopath. People tend to be blinded by the heinousness of the crime and, in the process, lose sight of the mental state of the perpetrator. We need to have discussions about penology if society is ever going to get away from an “eye-for-an-eye” ethos.
In my opinion the criminally insane should not be punished; they should be segregated with a view toward protecting society from them, and vice versa, in the hope that treatment will eventually bring about their rehabilitation. For the fully cognizant sociopath, however, punishment ought to be an integral part of rehabilitation.
HW
August 30th, 2011 | 1:15 pm
Implicit in your argument is that these drugs do anything at all to improve his mental state.
I think one would be more honest if one were to say, look, in order to make it easier on us, let’s give him a sedative so he can’t move around as much. Rather than do that, we engage in this little fiction that these drugs help, but where’s the data? It doesn’t show up in the suicide rate.
The premise of such a procedure being done for a patient’s well-being can also be used as a pretext for torture. This was practiced widely in the U.S.S.R. as a way to silence political dissidents. You may be unlikely to torture, but it is unwise to provide unprincipled men with a legal pretext through which they can achieve such ends. Need I remind you there are such unprincipled men in various places of power in this country?
August 30th, 2011 | 3:29 pm
Mr. Smith and others stated that there should be some limitation on the state to impose involuntary treatment on those in the penal system, but nowhere is the limitation discussed.
September 1st, 2011 | 10:23 am
People tend to be blinded by the heinousness of the crime and, in the process, lose sight of the mental state of the perpetrator.
I tend to believe the media circus atmosphere around many cases of the criminally insane are often deliberately manipulated by people with ulterior motives.
Consider: in the case of Jared Lee Loughner, the media was fed tasty headlines by – as it happens – the very same sheriff who had received complaints about Loughner’s behavior, but who basically did nothing about it.
And the media circus surrounding that woman who drowned her children was fueled by the husband (who even went so far as to write a book) – how can this man not be at least partly motivated by a desire to preemptively answer the question, “why on Earth did you leave a known schizophrenic alone with all those kids?”
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