New Treatments for Addiction Behavioral, Ethical, Legal, and Social Questions (2004) / Chapter Skim
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Appendix E: The Use of Immunotherapies and Sustained-Release Formulations in the Treatment of Drug Addiction: Will Current Law Support Coercion?
Appendix E: The Use of Immunotherapies and Sustained-Release Formulations in the Treatment of Drug Addiction: Will Current Law Support Coercion?
Pages 173-187
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From page 173... ...
They may also seem attractive to a society seeking to lower the high social and economic costs of addiction among such populations as recidivist drug offenders, homeless individuals addicted to drugs, and drug-abusing pregnant women and mothers. Experience suggests, however, that in these populations and others, some individuals will refuse treatment or participate for only a time and then drop out.
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From page 174... ...
Given the novelty of immunotherapies, no law has been developed pertaining to them, so likely legal authority must be inferred from a set of successively more generalized or analogous areas of law: first, from the very sparse law pertaining to coercion of other modalities of substance abuse treatment; second, from the law pertaining to coercion of substance abuse treatment in general, also sparse; and third, from the law pertaining to coercion of treatment for mental illness, which is more developed but only analogous. While this approach cannot lead to very confident predictions, it may well mirror the thinking of courts as they review precedents to inform their future decisions regarding coercion of immunotherapy.
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From page 175... ...
Constitution also provides that no person shall be "deprived of life, liberty or property without due process of law." It is this due process clause that has provided a balance of protection for individuals in situations where the power of the state and the autonomy of individuals come into conflict. THE RIGHT OF INDIVIDUALS TO DETERMINE THEIR OWN MEDICAL TREATMENT Generally, competent adults have the right to make their own decisions about whether to accept or reject medical treatment, free from interference by anyone, including the government.
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From page 176... ...
At least one court has weighed in on the issue of per se incompetence. The California Supreme Court in its opinion in In re: Jones stated that addiction does not render an individual per se incompetent to voluntarily submit to addiction treatment.4 Support for this notion is found in the case law on mental illness, where the courts have ruled that people with mental disorders enjoy a presumption of competence absent an adjudication of incompetence,5 even though it is widely recognized that mental disorders may affect cognition and judgment.6 However, states have an obligation to assure that voluntary consent is truly voluntary.
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From page 177... ...
Supreme Court allowed the administration of psychotropic medication over the refusal of a criminal defendant when the purpose of treatment was to restore competence to stand trial. However, the court found that due process would be violated without there being a finding that the medication was justified by safety considerations and that there were no less intrusive means to accomplish the same result.11 The court recently clarified the standard for permitting forced medication in Sell v.
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From page 178... ...
Harper the U.S. Supreme Court addressed the issue of involuntary psychotropic medication for inmates with mental illness.16 Of the decision in Harper, Siegel, Grudzinskas, and Pinals (2001)
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From page 179... ...
That would be especially true if there were other addiction treatments that the inmate was not refusing. As for due process protections, these legal scholars strongly urge that the decision to override refusal of medication be made by a court or an independent administrative body within the institution.
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From page 180... ...
In addition, states may allow judges to order drug treatment for those already convicted of a crime but not yet sentenced.20 One well-publicized method of diversion is the drug court. Drug courts have been defined as "separately identified criminal court dockets that provide judicially supervised treatment and case management services for drug offenders in lieu of criminal prosecution or incarceration."21 Drug courts vary across jurisdictions, but they tend to include ongoing judicial supervision, random urinalysis testing, mandatory participation in addiction treatment, and the imposition of graduated sanctions for noncompliance with any established condition.
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From page 181... ...
Homeless Individuals More than any other class of noncriminal persons with a substance use disorder, homeless individuals are likely to draw attention regarding treatment coercion. Various strategies have been used to encourage homeless individuals with behavioral health problems to enter treatment.
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From page 182... ...
For example, the Supreme Court of Montana in In re: J.B. upheld the termination of a mother's parental rights on her failure to complete a treatment plan.27 The Ohio courts have also upheld terminations for noncompliance with reunification plans that included addiction treatment.28 Oregon courts have ruled that the right to due process in these types of proceedings is not violated as long as the proceedings are fundamentally fair.29 But courts in at least two states have ruled on the termination of parental rights based on proof by clear and convincing evidence that the parent has not complied with the treatment conditions of the plan.30 25 Marchwinski v.
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From page 183... ...
Interestingly, the South Carolina Supreme Court continues to be the only one to have upheld lower court rulings on arrest and prosecution of pregnant women for drug use.31 Given that state attempts to prosecute pregnant women have been curbed by the courts, some have suggested mandated treatment as a "compromise" that can less punitively accomplish public health goals. What would be the legal means of mandating treatment?
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From page 184... ...
· The law regarding adolescents is insufficiently developed to allow prediction of what the courts might decide as to their ability to refuse immunotherapy if their parents consent to it. · The interests of the state may override individual rights and per mit coercion of treatment generally in the case of violent prison inmates but not immunotherapy in particular.
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From page 185... ...
Premarketing clinical trials are often not able to represent every ethnic, racial, and age group and typically do not include children, adolescents, or pregnant women. The groups most likely to be considered for mandatory treatment are individuals involved in the criminal justice system (disproportionately represented by ethnic and racial minorities)
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From page 186... ...
. Informed consent statues and the decisionmaking process.
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From page 187... ...
. Old law meets new medicine: Revisiting existing involuntary psychotropic medication of the criminal defendant.
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