Although the Supreme Court has since 1975 addressed other rights of persons with mental illness, recently it has issued two very significant rulings involving the treatment of mental illness which will be analyzed in this article. The first, Washington v. Harper,(3) is the long-awaited decision on the requirements of due process needed for involuntary treatment with psychotropic medications. The second decision, Zinermon v. Burch,(4) deals with a rather technical point of law, but one which is nevertheless very significant because the context of it is the issue of informed consent for psychiatric treatment.


Due Process and Involuntary Administration
of Anti-Psychotic Drugs

Treating a person with powerful anti-psychotic medications is a very serious matter. While such drugs might well be crucial for the amelioration of a mental illness, they often have well-known negative side effects which could include extrapyramidal movements, and even death in some circumstances.(5)
The legal issue that has arisen is not whether a competent person with mental illness has the right to refuse treatment with anti-psychotic medications in non-emergency situations; everyone agrees that they do. Rather, the issue is who determines the competency or validity of the patient's objection (i.e., should it be taken seriously?); and, if treatment over the patient's objection is to proceed, then who determines what treatment is in that patient's best interests?

Generally speaking, there are three possibilities, two of which involve a "clinical" determination of incompetency (i.e., by a clinician or other qualified professional) and the third involves a "judicial" determination of incompetency (i.e., by a court or quasi-judicial body).(6) Assuming in all of the following cases that the patient expresses an objection or refusal to the proposal for anti-psychotic medication, such treatment can proceed nevertheless under three types of due process:

Type-I a physician, with optional or mandatory consultation from another physician, can make the determination of the patient's competency to object and treat accordingly;
Type-II a psychiatrist's proposal to administer anti-psychotic medications can be submitted to a facility committee for ratification or rejection (an administrative-type proceeding); or,
Type-III the case must be brought to a court of law for a judicial proceeding on the patient's competency and the appropriateness of and any subsequent course of treatment.


Up to now and in general, state courts have increasingly been opting for type-III, by requiring judicial hearings for patients who object to anti-psychotic medications. The federal courts have tended to approve types I or II, as long as some judicial review was eventually or ultimately available to appeal from the administrative process.

In one very stark example of this dichotomy between state courts and federal courts, the United States Court of Appeals for the Second Circuit, having jurisdiction over New York, Connecticut and Vermont, held that New York's mental hygiene regulation providing for a type-I proceeding was constitutional because that decision could ultimately be reviewed by a New York State court.(7) However, subsequently New York's highest court, the State Court of Appeals, ruled that New York's administrative process was unacceptable under the New York State Constitution in the case of Rivers v. Katz,(8) ruling that: "[s]uch a determination [of competency] is uniquely judicial, not a medical function." The Court of Appeals failed to make reference to the prior federal precedent even though it involved precisely the same State regulation.

On December 27, 1989, the Supreme Court addressed the involuntary psychotropic medication issue in the context of a prison inmate who was being treated in the prison's mental health unit. The patient was paroled on the condition that he participate in psychiatric treatment. The State revoked the parole after he assaulted two nurses at a private hospital where he was continuing to obtain this psychiatric treatment.

Now back at prison, the inmate was referred to the psychiatric unit once again and this time refused the offer of psychotropic medication. The legal procedure in the State of Washington for deciding on the validity of the refusal was a type-II, i.e., there was a special committee consisting of a psychiatrist, psychologist and the associate superintendent of the prison (none of whom could be involved in the inmate's treatment or diagnosis) to determine by majority vote whether the inmate suffers from a mental disorder and is gravely disabled or dangerous and should therefore be medicated against his will. Furthermore, there is a right to appeal the committee's decision to the superintendent of the center within 24 hours, and ultimately judicial review may be sought.
]The Supreme Court made two very important rulings in this case. The first was that the United States Constitution protected a person's liberty to the extent that a State must provide some acceptable form of due process before overriding that objection and forcibly medicating the person. Secondly, and more significantly, the Supreme Court held that satisfactory due process may be in the form of an administrative proceeding; it need not necessarily be a judicial one because a: " . . . State may conclude with good reason that a judicial hearing will not be as effective, as continuous, or as probing as administrative review using medical decision-makers. We hold that due process requires no more."

In light of the Washington v. Harper decision, it appears that the federal courts will not insist that an objection to psychotropic medications be decided by a judicial forum in all cases, as New York and other states have done. However, state courts may still do so in interpreting state constitutional requirements which often contain language identical to the federal constitution