Book Review

Refusing Care: Forced Treatment and the Rights of the Mentally Ill

N Engl J Med 2003; 349:1392October 2, 2003

Article

Refusing Care: Forced Treatment and the Rights of the Mentally Ill
By Elyn R. Saks. 304 pp. Chicago, University of Chicago Press, 2002. $35. ISBN: 0-226-73397-1

Modern scholarship about the relation between law and medicine is replete with impressive research and brilliant analyses, but wisdom, reflecting experience and compassion, is less common. In Refusing Care: Forced Treatment and the Rights of the Mentally Ill, Elyn R. Saks is a wise, literate, and sympathetic narrator whose voice is honed by a professional life spent in mental health law, “as a legal advocate for the mentally ill, as a volunteer at a psychiatric hospital, as a therapist, and as a teacher,” she says. In these various roles she has thought clearly and deeply about the central questions in contemporary mental health care: whether and how to force treatment and confinement on those whose very illness impairs their ability to appreciate the possible burdens and benefits of care. In the allocation of decision-making authority in medicine, it is a given that competent adults can consent to or refuse care. But what if the disease affects the mind? How then to determine whether to follow individual directives or to impose treatment over refusal?

Saks articulates a few postulates that unify her work. First, there are no valid absolutists, whether principled paternalists or autonomy protectors; all is a matter of balance in an individual case. Second, we need to distinguish among forced commitment, forced use of mechanical restraints, and forced use of medication, because this last item poses the greatest risk to a patient's health and is highly intrusive. Third, current interpretation of the law, both by lawyers and by physicians, is too rigid; many patients have their liberty restricted unnecessarily, and others are not confined when that intervention would clearly serve their best interests. And fourth, mentally ill persons must be treated in ways that do not derogate their humanity, especially because the term “mental illness” itself refers to a value-laden concept.

In this book, complex case studies, as compelling as fiction, present recognizable realities, raise issues of possible interventions, and illustrate the consequences of various solutions. They demonstrate that lawyers and doctors are captives of the assumptions, learning, and behavior of their professions; harbor different fantasies; and value different end points. Scenarios emphasize the dangers in medicalizing human conflict, misery, unconventionality, and bad judgment. But, equally, the stories trigger questions about the validity of decisions made by family and strangers. Gradually, practice guidelines emerge, such as guidelines on the permissibility of imposed intervention when, for example, a psychotic episode, accompanied by impairment and transformation of personality, clearly destroys decisional capacity.

Although this may sound like a cookbook for care of the mentally ill, it surely is not. Individual cases offer theoretical, nuanced approaches to the problems of disabled, impaired, or incompetent persons. But, the author argues, the real culprit is the overall failure of American society to present reasonably accessible and affordable care in the community for persons with mental illness. Unfortunately, this failure often preserves only one option: the forcing of care on those who come, finally and desperately, to need protection for themselves and others.

Saks has written a book that is relevant to practice, to scholarship, and to the evolving world of federal jurisprudence. On June 16, 2003, the Supreme Court decided the case of Charles Thomas Sell v. United States. In this case, the Court struggled with this issue: When is the government permitted to administer antipsychotic drugs to a mentally ill criminal defendant against his or her will to render that defendant competent to stand trial? In its opinion, the Court relied on previous cases that had declared that there is a significant, constitutionally protected “liberty interest” in avoiding the unwanted administration of antipsychotic drugs. Reading the opinion makes clear that the analyses offered in this book could enrich legal scholarship and clarify the notion of liberty that it espouses. Saks has combined the compassion of medicine with the rigor of the law, and both professions will be enriched by her work.

Nancy Dubler, LL.B.
Montefiore Medical Center, Bronx, NY 10467
ndubler@montefiore.org