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Back Issues and Articles

Table of Contents
Table Of Contents
ASLME - [PDF] (Free Download)
722 Introduction: Conundrums and Controversies in Mental Health and Illness M. Carmela Epright and Robert M. Sade 727 "The Incarceration Revolution": The Abandonment of the Seriously Mentally Ill to Our Jails and Prisons Joseph D. Bloom It is well known that today jails and prisons house many seriously mentally ill citizens who in prior decades have been treated in mental hospitals and community mental health programs. This paper begins with a brief review of the history of support for mental health programs at the federal level and then, using the State of Oregon as an example, describes the new state era of mental health services which is characterized by the increasing use of the criminal justice system as a cornerstone of the treatment of many seriously and chronically mentally ill individuals.
Letters To The Editor
Letter From The Editor

This issue's symposium, "Conundrums and Controversies in Mental Health and Illness," is an interesting and exciting one for the staff here at the Journal of Law, Medicine & Ethics. With so many important topics to cover, we probably donít spend enough time on the medical, legal, and ethical issues surrounding mental health, even though those topics are profoundly important. This symposium raises significant questions around the issue of mental health, including a topic of perennial importance here in the Journal: the question of consent. The fact that this and other questions are handled in such a sensitive, thoughtful, and learned manner is a hallmark of work that has been guest-edited by Robert Sade, a longtime guest editor of special issues of JLME. In this particular issue, co-edited by M. Carmela Epright, the editors and their team of authors give readers a well-rounded discussion from a host of different perspectives on how to improve health care for psychiatric patients.
Introduction: Conundrums and Controversies in Mental Health and Illness
M. Carmela Epright and Robert M. Sade - [PDF]

There are many good reasons for dedicating a symposium to issues in mental health and illness, but the main motivation for this one was first and foremost concern for the well-being of psychiatric patients in a health care system that is ill-equipped to meet their needs. The conference from which this symposium is derived took place in South Carolina, which, in company with many other states, has drastically reduced funding for mental health services in recent years. The state hospital has eliminated approximately a third of its beds, patients experience increasingly lengthy waits for mental health services, and emergency rooms have become the primary source of acute treatment for many psychiatric patients. The criminal justice system is similarly overburdened by competing demands with regard to the mentally ill — prisons contend with ever increasing numbers of mentally ill inmates and face complicated questions regarding how to establish a proper balance between treatment and punishment. In light of these challenges, both the health care system and society at large must consider anew old questions about the mentally ill — what constitutes a mental illness, how such illnesses should be treated, whether psychiatric diagnoses should be considered mitigating factors with respect to criminal behaviors, and whether, how, and under what circumstances respect for autonomy of psychiatric patients should be waived.
Symposium Articles
The Incarceration Revolution: The Abandonment of the Seriously Mentally Ill to Our Jails and Prisons
Joseph D. Bloom - [PDF]

In 1848 Dorothea Dix, the famous 19th century advocate for the indigent mentally ill, appealed to the United States Congress to support the set-aside of a very large tract of land that was to be used for the "Relief and Support of the Indigent Curable and Incurable Insane." She stated: It will be said by a few, perhaps that each State should establish and sustain its own institutions; that it is not obligatory upon the general government to legislate for maintenance of State charities... But may it not be demonstrated as the soundest policy of the federal government to assist in the accomplishment of great moral obligations, by diminishing and arresting wide-spread miseries which mar the face of society; and weaken the strength of communities?
Substance Abuse Is a Disease of the Human Brain: Focus on Alcohol
Raymond Anton - [PDF]

Preamble It is useful in an article of this kind to inform the reader of the author's background, biases, and rationale for the format and content. As a clinically trained psychiatrist and addiction specialist/researcher, my training and experience have led me to best understand the "clinical side" of alcoholism and substance abuse. A large part of my career has been devoted to treating individuals with alcohol use disorders, especially in the context of clinical trials devoted to finding new medications to reduce craving, drinking, and preventing relapse. I also teach professionals about the diagnosis and treatment of alcohol and other substance abuse disorders. While my focus has been mainly on alcohol use disorders, much of what is known about the neuroscience of addiction is applicable to many, if not all, substances of abuse. I have seen the ravages of these diseases, including death, but I more commonly see the milder forms of these diseases that make people's lives just plain miserable and/or less enjoyable or productive than they would have been without their addiction. One cannot talk to the many hundreds of these individuals, as I have done, without coming away from that cumulative experience believing that alcohol, like other addicting substances, changes the way the brain functions. For non-clinicians, and especially for non-psychiatrists, these changes may not be obvious or believable — partly because without a solid education in how the brain works and how it relates to mood and behavior, one cannot appreciate that; just like the heart, liver, pancreas, kidney etc., the brain can malfunction in subtle ways. This malfunction, or in technical terms "pathology," can make the individual not behave normally in relationship to their choice to use or not use an addictive substance.
Proposition: A Personality Disorder May Nullify Responsibility for a Criminal Act
Robert Kinscherff - [PDF]

Background A criminal offense requires two elements. First, it requires proof of misconduct that is specifically prohibited by law (actus reus). Second, it requires proof of sufficient intention or recklessness (mens rea) to warrant assignment of moral culpability for the act. For example, a person who kills another person intentionally is typically guilty of murder, while a person who kills recklessly or in the heat of passion in response to provocation may be guilty of manslaughter, and a person who kills accidentally is not guilty of any crime. Even if the elements of the offense have been proven by the prosecution, the actor may not be punishable if the defense proves that his conduct was either justified (e.g., self-defense) or excused (e.g., duress).
Should a Personality Disorder Qualify as a Mental Disease in Insanity Adjudication?
Richard J. Bonnie - [PDF]

In his accompanying article,1 Dr. Kinscherff has convincingly demonstrated why a categorical exclusion of personality disorders from the definition of "mental disease" in insanity defense adjudication is arbitrary, both conceptually and clinically. He explains his position in the context of a vignette involving a hypothetical defendant, Wilhelmina Sykes, charged with ramming her car into another car obstructing her path, causing serious injury to its driver.2 Dr. Kinscherff correctly points out that the determinative issue in applying the insanity defense in any case, including the hypothetical case involving Ms. Sykes, is whether the defendant experienced a legally relevant functional impairment at the time of the offense. In many states — and in the hypothetical jurisdiction in which Ms. Sykes is being prosecuted — the relevant functional impairments are those that could have affected her ability "to appreciate the wrongfulness of her conduct" or "to conform her conduct to the requirements of the law."3 In the vocabulary of criminal responsibility, these are known, respectively, as the "cognitive" and "volitional" prongs of the defense. As he notes, the proper ruling by the court in Ms. Sykes' case should turn not on the diagnostic label, but rather on what the expert witness was prepared to say regarding Ms. Sykes' mental and emotional functioning at the time of the offense. Since the case description focuses solely on the expert's testimony regarding the diagnosis, its legal sufficiency cannot be assessed.
Physicians Must Honor Refusal of Treatment to Restore Competency by Non-Dangerous Inmates on Death Row
Howard Zonana - [PDF]

The vignette described in the introduction of this symposium raises a number of ethical and legal problems for physicians who work for correctional institutions and death row inmates. They are not confined to correctional physicians, however, as states have requested aid from practicing physicians in the community, and even from other states, when conflicts have arisen in the treatment of death row inmates as they near the date of execution.1 As outlined, the case involves a 48-year-old man with a long history of schizophrenia, initially diagnosed at age 19. Compliant with medication, he remained generally free from positive symptoms-delusions and hallucinations. Nonetheless, he committed two murders during a robbery and was sentenced to death. Since his incarceration, the defendant has consistently refused psychotropic medications and has been forcibly medicated on several occasions when he exhibited violent outbursts and was overtly psychotic. As execution time approached, the court ruled that his rights to refuse medication were outweighed by the state's interest in executing him and ordered the warden to medicate in order to maintain his competence. It appears that the inmate is not currently overtly psychotic, dangerous, or incompetent to be executed under a "Ford" Standard.2 The physician (Dr. Milsap) is presented with the order and is unsure if it is possible to proceed and remain faithful to both his legal and ethical obligations.
Physicians Should Treat Mentally Ill Death Row Inmates, Even
Melissa McDonnell and Robert T. M. Phillips - [PDF]

Introduction The history of physician involvement in capital proceedings is longstanding and ripe with controversy and conflicts of ethical concerns. Previously one of us (Phillips) has written that the controversy is more appropriately characterized as a conflict of moral position rather than one of ethical dilemma.1 In hindsight, we believe that analysis, while true, does not capture the depth or complexity of the issue. Forensic psychiatric evaluations, including competency to be executed evaluations, are done with a clear understanding that no physician-patient relationship exists. Treatment, however, is not so neatly re-categorized in large measure because it involves the physician's active provision of the healing arts.
Non-Consensual Treatment Is (Nearly Always) Morally Impermissible
Mark J. Cherry - [PDF]

I. Introduction The goal of my comments regarding the case study of Eve Hyde — presented in the introduction of this symposium — is not first and foremost to resolve the conflict between individual autonomy and medical paternalism regarding non-consensual psychiatric treatment. Instead, the goal is to step back far enough from what is generally accepted as the morally appropriate basis for non-consensual psychiatric treatment, including involuntary hospitalization and medication, and to ask very basic questions about when patients may permissibly be treated without their consent. My goal, in short, is Socratic — to explore aspects of what we take for granted in order better to determine whether we ought to take them for granted. Commentators routinely urge that it is morally permissible forcibly to treat psychiatric patients, such as Eve Hyde, in order to (1) preserve the patient's best interests and (2) restore the patientís autonomy. Such arguments typically specify duties of beneficence toward others, while appreciating personal autonomy as a positive value to be weighed against other factors. Varying by jurisdiction, legal statutes usually require, in addition, at least (3) that there exists the threat of harm to self or others. In this article, I puzzle about why one would embrace the first two elements of this prevailing view. I also argue for a very restricted reading of the third element, based on the moral limits of permissible state action.
Coercing Future Freedom: Consent and Capacities for Autonomous Choice
M. Carmela Epright - [PDF]

In this paper I examine some of the significant moral concerns inherent in cases of treatment refusal involving patients with psychotic disorders. In particular, I explore the relevance of the principle of autonomy in such situations. After exploring the concept of autonomy and explaining its current and historical significance in a health care setting, I argue that because autonomous choice depends for its existence upon certain human functions such as the ability to reason, judge, and assess consequences, patients cannot be said to be making free and autonomous decisions if these capacities are compromised. I contend further that because psychotic disorders have the potential to compromise these functions in the future, it is appropriate, in some limited cases, to coerce patients with psychotic disorders to undergo treatment in order to preserve their future decision-making capacities and to protect their ability to recognize and respect the autonomy of others. My interest here is to explore the unique and complicated role of patient autonomy in mental health care. To do so, I start at the beginning, by examining the concept of autonomy. What it is? Why it is important? And why have we rarified and elevated this principle above all of the other important obligations that we have to patient care? I then examine the clinical case at hand insofar as it illustrates some of the ways in which the mandate "preserve patient autonomy" is complicated in mental health care, particularly because this patient, like many others with her condition, has experienced multiple psychotic episodes; moves in and out of rational states; does not acknowledge or recognize her disorder; has committed violence against others; and finally and most significantly, because she, after some treatment, meets the criteria for self-governance and consequently, has refused further treatment. My concern here is that during (often brief) moments of rationality, patients like Eve Hyde may reject treatments that have the potential to sustain his or her ability to function as an autonomous agent in the future. This concern leads me to argue that in such cases it is appropriate to behave in a manner that is traditionally considered paternalistic, to coerce treatment, that is, to compromise the patient's short-term autonomy with the goal of preserving that patient's capacities for rationality and autonomous choice.
Independent Articles
Drug Advertising, Continuing Medical Education, and Physician Prescribing: A Historical Review and Reform Proposal
Marc A. Rodwin - [PDF]

Public policy tries to promote appropriate drug use by allowing firms to market drugs in interstate commerce only for uses that the Food and Drug Administration (FDA) has found to be safe and effective. Because of their medical knowledge, physicians are authorized to prescribe drugs even for uses unapproved by the FDA. Nevertheless, physicians have relied on drug firms for information on appropriate prescribing despite the inherent tension between drug firm dissemination of information to promote sales and rational prescribing. In the past, physicians often relied particularly on drug firm advertising for information on drug use. Today, physicians rely on drug firms to finance continuing medical education (CME). A historical review reveals connections between these two different ways commercial interests have influenced the information that physicians receive and points the way to needed reforms.
Health Benefits of Legal Services for Criminalized Populations: The Case of People Who Use Drugs, Sex Workers and Sexual and Gender Minorities
Joanne Csete and Jonathan Cohen - [PDF]

Introduction Criminalization is a form of social marginalization that is little appreciated as a determinant of poor health. Criminalization can be understood in at least two ways — in the narrow sense as the imposition of criminal penalties for a certain behavior, and more broadly as the conferral of a criminalized status on all individuals in the population, whether proven guilty of a specific offense or not. Both criminal penalties and criminalized status threaten the mental and physical health of these populations in many ways. Incarceration, abandonment by families and communities, social disdain, physical abuse, discrimination, and relentless fear undermine their ability to enjoy their right to the highest attainable standard of health goods and services. Understanding the social determinants of health in these populations and formulating programs to address them have rarely been high priorities in national or international policy.
Insuring Against Infertility: Expanding State Infertility Mandates to Include Fertility Preservation Technology for Cancer Patients
Daniel Basco, Lisa Campo-Engelstein, and Sarah Rodriguez - [PDF]

Melanie was 29-years-old, married, and hoping to start a family when she discovered a lump in her pelvis. She was diagnosed with non-Hodgkin lymphoma. But one of her biggest fears upon learning of her diagnosis was the possibility of loosing her ability to have children. When Melanie asked her oncologist and radiation oncologist about the risk cancer treatment posed to her fertility, they told her it was small, as only one ovary would be destroyed during the radiation. Deciding to ask for another opinion, she sought out a reproductive endocrinologist, who told her, contrary to what her oncologists had said, that women like her typically did have problems conceiving after radiation treatment on their pelvis. One of the hardest parts of dealing with her dual diagnosis, Melanie later recalled, was the unknown: "I didn't know if my treatment would definitely render me infertile."
The Inalienable Right to Withdraw from Research
Terrance McConnell - [PDF]

Introduction Consent forms given to potential subjects in research protocols typically contain a sentence like this: "You have a right to withdraw from this study at any time without penalty." If you have ever served on an institutional review board (IRB) or a research ethics committee, you have no doubt read such a sentence often. Moreover, codes of ethics governing medical research endorse such a right. For example, paragraph 24 of the Declaration of Helsinki says, "The subject should be informed of the right... to withdraw consent to participate at any time without reprisal." Similarly, section C of the Belmont Report says that subjects must be informed that they have the right "to withdraw at any time from the research." And in section 46.116 of the Common Rule (issued by the United States Department of Health and Human Services), it says that one of the elements of informed consent must include a statement that "the subject may discontinue participation at any time without penalty or loss of benefit to which the subject is otherwise entitled."1 In each of these cases, there is no indication that the right is qualified in any way.
How Bioethics Can Enrich Medical-Legal Collaborations
Amy T. Campbell, Jay Sicklick, Paula Galowitz, Randye Retkin, and Stewart B. Fleishman - [PDF]

Introduction Medical-legal partnerships (MLPs) — collaborative endeavors between health care clinicians1 and lawyers to more effectively address issues impacting health care — have proliferated over the past decade.2 The goal of this interdisciplinary3 approach is to improve the health outcomes and quality of life of patients and families, recognizing the many non-medical influences on health care and thus the value of an interdisciplinary team to enhance health. There are currently over 180 MLPs at over 200 hospitals and health centers in the United States, with increasing federal interest and potential legislative support of this model.
Teaching Health Law
Marshall B. Kapp - [PDF]

Thirty years ago when I, an attorney, took a tenure-track faculty position at an innovative, newly opened medical school, I was an oddity ó truly, a stranger in a strange land.1 Today it is not uncommon for American medical schools to employ an attorney as a tenured or tenure-track member of its faculty.2 Over these last three decades, the educational roles and responsibilities of health law faculty who teach in law schools have become increasingly well defined, with numerous health law courses and textbooks now generally accepted as part of the typical law school curriculum. However, the roles and responsibilities of attorney faculty members who teach in medical schools remain less clearly defined and likely are more individualized to the particular medical schools in which they teach. This essay explores some of the challenges and the opportunities which are given to attorney faculty members who teach in medical schools.
Currents in Contemporary Bioethics
Mark A. Rothstein - [PDF]

The seemingly interminable debates about health care reform in the last few years have focused mainly on health care access, quality, and cost. Debates on the medical malpractice component of the issue have focused almost entirely on cost.1 The familiar arguments in favor of limiting liability include the financial and health costs of defensive medicine; decreased physician supply in certain specialties and geographic areas; excessive awards; and high transaction costs, including attorney and expert witness fees. The equally familiar arguments in favor of maintaining tort liability include the need to promote civil justice, deter substandard care, identify incompetent practitioners, and encourage systemic quality improvement. Numerous studies have explored the possible effects of damage caps and other measures on malpractice premiums, health care costs, and other financial endpoints.2 One relatively under-examined aspect of the issue is how federal legislation expanding access to health care might alter the number of medical malpractice claims. With the enactment of the Patient Protection and Affordable Care Act of 2010 (PPACA),3 it is especially appropriate to consider what effect, if any, the new law will have on the rate of medical malpractice claims.
Recent Developments in Health Law
Anne Clark Pierson - [PDF]

To the relief of federal funding agencies and embryonic stem cell researchers, on September 28, 2010, the Circuit Court of Appeals for the D.C. Circuit allowed federally funded human embryonic stem cell (hESC) research to continue while the government appeals a preliminary injunction to prevent federal support of the work. An expedited decision in the case is expected based on proceedings at the appeals court and the district court. The appeals schedule has been set, with briefs due from both parties in October and a reply brief from the government due November 4.1 Proceeding simultaneously at the lower court is the motion for summary judgment, where Chief Judge Royce C. Lamberth has scheduled the Plaintiffs' brief for submission on October 14 and the Defendants' brief for October 28.2 In the meantime, the NIH will continue its intramural research and will continue to consider grants that were frozen by the preliminary injunction.3 The suspension of research activities involving the use of hESCs has been temporarily lifted.