Damage Remedies and Institutional Reform: The Right to Refuse Treatment

Fiss O.M. , Foreword: The Forms of Justice , Harvard Law Review 93 (1):1, 52 (November 1979).

Friendly , The Courts and Social Policy: Substance and Procedure , University of Miami Law Review 33:21 (1978).

Cassell E. , The Healer's Art (Lippincott, Philadelphia) (1976) at 146–47: Not only does sickness cause the patient to lose control of the environment but, even more fundamentally, it causes him to lose control of his body. … The body has become a dangerous, alien thing. Thus, a mental patient, who has in some cases adjusted to his symptoms, is forced to confront the physical manifestations of the psychotropic drugs, many of which entail substantial loss of control of his body and its functions.

See Gavison , Privacy and the Limits of the Law , Yale Law Journal 89:421, 449 (1980).

Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979), 634 F.2d 650 (1st Cir. 1980), vacated sub nom., Mills v. Rogers,____ U.S. _____ (1982). After this article was written, the Supreme Court remanded the case to the First Circuit for a determination of whether a right to refuse treatment with psychotropic drugs exists under Massachusetts law. The Court did not decide whether such a right exists in federal law, and therefore did not reach the issue of damages.

Rogers v. Okin, 478 F. Supp. 1342, 1365 (D. Mass. 1979).

Id., quoting Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417, 426 (Mass. 1977).

Rogers v. Okin, 634 F.2d 650, 653 (1st Cir. 1980).

Id.

See Stone , The Right to Refuse Treatment , Archives of General Psychiatry 38(3): 358 (March 1981).

Carey v. Piphus, 435 U.S. 247 (1978) (plaintiffs were high school students awarded nominal damages only, for deprivation of due process when they were suspended from school).

Id. at 254.

Id. at 258.

Id. at 259.

Id. at 258.

See, e.g., Halperin v. Kissinger, 606 F.2d 1192 (D.C. Cir. 1979) (denial of Fourth Amendment rights through electronic surveillance; proof of actual damages are not required because of the nature of the interests involved).

Wood v. Strickland, 420 U.S. 308, 318 (1974).

Gomez v. Toledo, 446 U.S. 635 (1980).

Rogers v. Okin, supra note 6, at 1382–83.

See Nichols v. Layman, 506 F. Supp. 267 (N.D. Ill. 1980) (change in law on constitutional right to treatment).

Bailey v. Lally, 481 F. Supp. 203 (D. Md. 1979) (unclearness of law on use of prisoners for medical experiments); Saffron v. Wilson, 481 F. Supp. 228 (D. D.C. 1979) (lack of clarity of rules governing demonstration near the White House).

Wood v. Strickland, 420 U.S. 308, 322 (1974).

McCray v. Burrell, 622 F.2d 705 (4th Cir. 1980) (failure to notify psychologist about bizarre behavior of inmate after placing him in solitary).

Rogers v. Okin, supra note 6, at 1382.

Id. at 1382, quoting from Downs v. Sawtelle, 574 F.2d 1, 12 (1st Cir. 1977), cert. denied, 439 U.S. 910 (1978).

Rogers v. Okin, supra note 6, at 1383. For a discussion of the effects of the litigation upon the operation of the Austin Unit at Boston City Hospital by the unit's director, see Gill M.J. , Side Effects of a Right to Refuse Treatment Lawsuit in Refusing Treatment in Mental Health Institutions—Values in Conflict ( Doudera A.E. Swazey J.P. , eds.) (AUPHA, Ann Arbor) (1982).

“Like frontline surgeons, they were required to work with what they had… . [I]t would be unjust and unreasonable for courts to hold psychiatrists personally and individually responsible for resource deficiencies that are actually the responsibility of society.” Id. at 1385.

Dobbs D. , Handbook on the Law of Remedies §§ 3.1, 7.3 (1973) [hereinafter cited as Dobbs].

Id. at §7.3.

One court following Carey v. Piphus has allowed presumed damages in a case involving a prisoner incarcerated in a segregated jail. In Mickens v. Winston, 462 F. Supp. 910 (E.D. Va. 1978), aff'd mem. 609 F.2d 508 (4th Cir. 1979), the court concluded that “although plaintiff has failed to vocalize, with any specificity, his alleged injury, confining his testimony to ‘feeling bad,’ by virtue of defendant's intentional policy of racial segregation, the court concludes he was presumptively injured, for which he is entitled to a monetary award.” 462 F. Supp. at 913.

Brooks v. Moss, 242 F. Supp. 531, 532 (W.D. S.C. 1965) ($3,500 compensatory award for police assault includes element for “deprivation of rights as a citizen”). One commentator has suggested that Congress set a fixed minimum recovery to effectuate the presumed damage remedy. See Note, Damage Awards for Constitutional Torts: A Reconsideration after Carey v. Piphus, Harvard Law Review 93 (5): 966, 989 and n. 141 (March 1980).

Dobbs , supra note 32, at §3.8.

Cochetti v. Desmond, 572 F.2d 102 (3rd Cir. 1978).

Carey v. Piphus, supra note 11, at 257 n.11.

Restatement (Second) Torts, §8 A (1965), defining “Intent: The word ‘intent’ is used to … denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it. …”

See Fountila v. Carter, 571 F.2d 487 (9th Cir. 1978) ($5,000 punitive award based on $1 actual injury overturned).

Dobbs , supra note 32, at §2.9.

See e.g., Zarcone v. Perry, 572 F.2d 52 (2nd Cir. 1978); Silver v. Cormier, 529 F.2d 161, 163 (10th Cir. 1976); Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965).

See Cochetti v. Desmond, supra note 38, at 105–06: “The availability of punitive damages as a deterrent may be more significant than ever today, in view of the apparent trend of decisions curtailing the powers of federal courts to impose equitable remedies to terminate such [constitutional] violations.” See generally Love J.C. , Damages: A Remedy for the Violation of Constitutional Rights , California Law Review 67 (6): 1242, 1275, n.274 (a typical range of punitive damage awards, from $250 to $10,000, is set forth).

478 F. Supp. at 1381.

634 F.2d at 662.

See Harper James , The Law of Torts, vol. 1, §5.30 at 468–70 (1956); Caperci v. Huntoon, 397 F.2d 799 (1st Cir.), cert. denied, 393 U.S. 940 (1968).

Imbler v. Pachtman, 424 U.S. 409, 442 (1976) ( White J. , concurring).

Carey v. Piphus, supra note 11, at 265. See Nahmod S. , Civil Rights and Civil Liberties Handbook §4.02 at 96 (1979).

Note, Damage Awards for Constitutional Torts: A Reconsideration after Carey v. Piphus, Harvard Law Review 93 (5): 966, 968 (March 1980).

Carey v. Piphus, supra note 11, at 265.

Rogers v. Okin. supra note 8, at 660.

Rennie v. Klein, 476 F. Supp. 1294, 1307-15 (D.N.J. 1979).

Id. at 1312.

Mills M.J. , The Continuing Clinicolegal Conundrum of the Boston State Hospital Case , Medicolegal News 9(2): 9 (April 1981).

See Brooks A. , The Constitutional Right to Refuse Antipsychotic Medications , Bulletin OF the American Academy of Psychiatry & the Law 8(2): 179 (1981).

See generally Whitman C. , Constitutional Torts , Michigan Law Review 79 (1): 5, 48–52 (1980).

Fora discussion of “general deterrence,” see Calabresi G. , The Costs of Accidents (Yale Univ. Press, New Haven) (1970) at 135–97.

Cass R.A. , Damage Suits Against Public Officers , University of Pennsylvania Law Review 129 (5): 1110, 1139 (1981).

Halderman v. Pennhurst State School & Hospital, 446 F. Supp. 1295, 1307 (E.D. Pa. 1977).

Brooks , supra note 56, at 189.

See Caffrey , Discontinuation or Reduction of Chemotherapy in Chronic Schizophrenics , Journal of Chronic Disability 17(4): 347 (1964).

See Huth , Mind Medicine's Side Effects: Are the Risks Worth the Cure? Washington Post, April 9, 1972 at B-3, col. 1.

See Brooks , supra note 56, at 188.

The control of symptoms may not even have a therapeutic purpose in some cases, since the symptomatic behaviors may be preferred by the patients to the sedative effects of the neuroleptic drugs. Putton Van Crumpton Yale , Drug Refusal in Schizophrenia and the Wish to be Crazy , Archives of General Psychiatry 33(12): 1443 (December 1976).

Gaughan LaRue , The Right of a Mental Patient to Refuse Antipsychotic Drugs in an Institution , Law and Psychology Review 4:43 (1978).

Marholin Phillips , Methodological Issues in Psychopharmaceutical Research , American Journal of Orthopsychiatry 46(3): 477 (July 1976).

See Brooks , supra note 56, and discussion in Rennie v. Klein , supra note 53.

See Group for the Advancement of Psychiatry publication, Pharmaco-Therapy and Psychotherapy: Paradoxes, Problems and Progress, at 173–74 (1975).

See Klein , Who Should Not be Treated with Neuroleptics But Often Are , in Rational Psychopharmacotherapy and the Right to Treatment ( Ayd F. , ed. 1974). See also Carpenter McGlashan Strauss , The Treatment of Schizophrenia without Drugs: An Investigation of Some Current Assumptions , American Journal of Psychiatry 134(1): 14 (January 1977); Klawans Goetz Perlik , Tardive Dyskinesia: Review and Update , American Journal of Psychiatry 137(8): 900 (August 1980).

Cole Jonathan Dr. , quoted in Sobel, Something Nasty at the Bottom of the Psychiatric Drug Bottle , New York Times, June 8, 1980, at 20F.

See Brooks , supra note 56, at 202 (evidence that the level of use of the psychotropic drugs dropped off dramatically in the New Jersey state hospitals after the Rennie decision).