Cleveland State Law Review
psychiatry, state drugging, right to refuse drugs, mental illness
Thirty years have passed since the discovery of Thorazine, a neuroleptic drug, and the drugging of American state mental patients has become commonplace. Part I distinguishes between two approaches to remedy--"structural" and "atomistic"--and, as a basis for testing the two, describes a state hospital's handling of the most serious drug side effect. This account also provides a sense of the dimensions of the drugging problems in state hospitals. Part II explores a family of atomistic remedies. These would address drugging problems by seeking to ensure that state doctors are knowledgeable about drugs and/or reasonably careful in administering them. I reject this approach because it flies in the face of the realities of state drugging--as described in Part I--and promises no relief for state patients. Part III explores a rather different kind of atomistic remedy, one which conditions drugging on either the patient's competent consent or, assuming the patient is incompetent, on the prosecution of full-fledged incompetency proceedings and the subsequent consent of a guardian. I argue that this remedy promises to be ineffective too, though for somewhat different reasons. Part IV discusses a structural remedy that looks beyond the narrow confines of the state doctor-patient relationship and uses commitment hearings as a vehicle for ensuring that post-commitment drugging comports with high medical standards. Although an elegant and internally coherent scheme, I aruge that it imposes an untenable choice on society in practice and will provide futile or worse in operation. Part V analyzes another structural remedy, though one with a different vision of the problem and a different solution to it. In Rennie v. Klein, the district judge developed an elaborate procedural system to address what he perceived to be the organizational root of state hospital drugging excesses. This section attempts to show, however, that the theory underlying this solution to the problem is mistaken and that, as a result, the system simply did not work when put into place.
Sheldon Gelman, Mental Hospital Drugging - Atomistic and Structural Remedies, 32 Cleveland State Law Review 221 (1983-1984)