Psychiatric Annals

THE CHILD'S RIGHT TO REFUSE MENTAL HEALTH TREATMENT

Henry A Beyer

Abstract

Concern over the rights of children has focused primarily on moral or human rights. As a lawyer, I have a special concern with legal rights. Many legal rights may be thought of as moral rights whose time has come. When there is widespread societal agreement that a moral right, adequately defined, is being violated or threatened, and that this right is appropriate for enforcement by our legal system, that moral right sometimes becomes a legal right.1

One aspect of children's mental health care that shows a few tentative signs of becoming at least a limited legal right is a child's right to refuse mental health treatment. This article deals with that right in the context of inpatient, institutional treatment, particularly at that most critical point for the exercise of refusal rights - the point of commitment or admission to a mental institution. Voluntary entrance into a mental institution is generally referred to as "admission"; involuntary entrance is generally called "commitment." But these usages are not employed consistently in either the statutes or the literature. In light of the truly involuntary nature of many "voluntary" admissions of minors, the term "commitment" is used here for such admissions. This entrance state is vital, because:

- Commitment brings about a much more massive change (for better or worse) in a patient's life than does outpatient treatment.

- Commitment usually leads to a wide range of treatment situations.

- Once a person has been committed, courts hesitate to question medical judgments as to what particular treatment is best for the patient.

- Commitment is, or can be made, more open to public scrutiny and thus more susceptible to legal control than is treatment administered later, within an institution.

As a base line against which we can measure the relative extent or limits of a child's right to refuse treatment, let us first consider what rights an adult has with regard to the same issue.

ADULT RIGHTS AT ENTRANCE

The State has long claimed the right to confine not only those persons who have broken laws, and those who are mentally ill and dangerous, but also those mentally ill persons who, in the opinion of a court, are incapable of caring for themselves or their property.'-' Under the theory of parens patriae, the State is protecting and presumably treating an insane person. It is also protecting others from the insane person, but this aspect of commitment falls more specifically under police control. One could say that commitment is a determination of status, usually proved by behavior, whereas a criminal proceeding carries a moral judgment of guilt based on behavior that results in a change of status.

Today, in most of our states, the State may commit such incompetent persons to mental institutions to facilitate their rehabilitation.3 Furthermore, since the State is supposedly caring for, not punishing, these persons, the civil commitment process traditionally has included few of the procedural safeguards that are Constitutionally required in criminal trials. Criminal procedures have been advocated for civil commitment, because commitment and criminal sentence may both result in incarceration without treatment. If treatment were provided, this argument would be weakened. It should be kept in mind also that there are genuine differences between civil commitment and criminal sentence in terms of the motive for each, the stigma attached, and the problems of proof.

A trend is now appearing in state legislatures toward restricting involuntary commitments to the dangerously mentally ill.4 And a number of lower-court decisions5 have held that the Constitution requires that those being involuntarily committed must be accorded such due-process rights as notice, a hearing, assistance of…

Concern over the rights of children has focused primarily on moral or human rights. As a lawyer, I have a special concern with legal rights. Many legal rights may be thought of as moral rights whose time has come. When there is widespread societal agreement that a moral right, adequately defined, is being violated or threatened, and that this right is appropriate for enforcement by our legal system, that moral right sometimes becomes a legal right.1

One aspect of children's mental health care that shows a few tentative signs of becoming at least a limited legal right is a child's right to refuse mental health treatment. This article deals with that right in the context of inpatient, institutional treatment, particularly at that most critical point for the exercise of refusal rights - the point of commitment or admission to a mental institution. Voluntary entrance into a mental institution is generally referred to as "admission"; involuntary entrance is generally called "commitment." But these usages are not employed consistently in either the statutes or the literature. In light of the truly involuntary nature of many "voluntary" admissions of minors, the term "commitment" is used here for such admissions. This entrance state is vital, because:

- Commitment brings about a much more massive change (for better or worse) in a patient's life than does outpatient treatment.

- Commitment usually leads to a wide range of treatment situations.

- Once a person has been committed, courts hesitate to question medical judgments as to what particular treatment is best for the patient.

- Commitment is, or can be made, more open to public scrutiny and thus more susceptible to legal control than is treatment administered later, within an institution.

As a base line against which we can measure the relative extent or limits of a child's right to refuse treatment, let us first consider what rights an adult has with regard to the same issue.

ADULT RIGHTS AT ENTRANCE

The State has long claimed the right to confine not only those persons who have broken laws, and those who are mentally ill and dangerous, but also those mentally ill persons who, in the opinion of a court, are incapable of caring for themselves or their property.'-' Under the theory of parens patriae, the State is protecting and presumably treating an insane person. It is also protecting others from the insane person, but this aspect of commitment falls more specifically under police control. One could say that commitment is a determination of status, usually proved by behavior, whereas a criminal proceeding carries a moral judgment of guilt based on behavior that results in a change of status.

Today, in most of our states, the State may commit such incompetent persons to mental institutions to facilitate their rehabilitation.3 Furthermore, since the State is supposedly caring for, not punishing, these persons, the civil commitment process traditionally has included few of the procedural safeguards that are Constitutionally required in criminal trials. Criminal procedures have been advocated for civil commitment, because commitment and criminal sentence may both result in incarceration without treatment. If treatment were provided, this argument would be weakened. It should be kept in mind also that there are genuine differences between civil commitment and criminal sentence in terms of the motive for each, the stigma attached, and the problems of proof.

A trend is now appearing in state legislatures toward restricting involuntary commitments to the dangerously mentally ill.4 And a number of lower-court decisions5 have held that the Constitution requires that those being involuntarily committed must be accorded such due-process rights as notice, a hearing, assistance of counsel, the privilege against self-incrimination, and in a few cases requirement of proof beyond a reasonable doubt. In two cases,; the United States Supreme Court has implied that "such a massive curtailment of liberty"7 as is imposed in involuntary commitment may require a finding of dangerousness. But the Supreme Court has not yet ruled directly on either the standard or procedures Constitutionally required for commitment. Until it does, great differences will continue to exist from state to state in involuntary-commitment laws and practices.

ADULT RIGHTS WITHIN THE INSTITUTION

May an adult, once admitted to a mental hospital, refuse to accept all or certain types of treatment? It is widely, though not universally/ agreed that a voluntary adult patient has the legal right to refuse any or all treatment. The exercise of this right, however, may be practically impossible. In many institutions, no distinction is made between voluntary and involuntary patients in the decision on whether to invoke sanctions for refusal of treatment/' And in those jurisdictions that do honor a voluntary patient's refusal to accept certain treatment, the institution retains the right to discharge the patient. This situation can create considerable pressure on patients to accept whatever treatment is proffered. The voluntary patient can, of course, request release; but then, depending on the patient's condition and the state law, the institution may apply to the court for an involuntary commitment. All these factors again raise the question of whether there is any such thing as a truly voluntan' commitment.10

May an involuntary adult patient refuse treatment? One federal appeals court has upheld an involuntary patient's right to refuse medication when the refusal was based on religious grounds,11 and another such court has found the use of emetic drugs in aversion therapy for unconsenting prisoners to be cruel and unusual punishment.1'- But no general right to refuse treatment has yet been recognized.

One possible basis for such a right may lie in the right to privacy. The Supreme Court has been increasingly willing to recognize a Constitutional right to personal privacy, which Justice Brandeis described in 1928 as "the right to be let alone - the most comprehensive of rights and the right most valued by civilized men."1'1 In recent years the Court has found that a Constitutional right to privacy protects such activities as the use of contraceptives by a married couple,14 the private possession of obscene films,1'' and a woman's decision to terminate pregnancy during its early stages.1'' In each of these cases the Court found that the individual's "right to be let alone" outweighed the State's interest in intervening. It may be a long time in coming, but it is not unreasonable to believe that the Court may someday apply the same reasoning to a patient's right to refuse at least some tvpes of treatment. Such an argument will be most likely to succeed when the patient exhibits the least danger to others, the treatment is physically most intrusive and irreversible, and there exist other viable treatment methods to which the patient does not object.17

A judicial approach to finding a Constitutional basis for a limited right to refuse treatment appears in the federal district opinion in VVi/fiff v. Stkkney. As one of the "minimum Constitutional standards for adequate treatment of the mentally ill," the court said that involuntary "patients have a right not to be subjected to treatment procedures such as lobotomy, electro-convulsive treatment, ad versi ve [sic] reinforcement conditioning or other unusual or hazardous treatment procedures without their express and informed consent after consultation with counsel or interested party of the patient's choice. "ls Since Wyatt and a conflicting lowercourt opinion regarding the right to treatment1" are still being appealed, it remains to be seen whether the Wyatt reasoning will ultimately prevail.

Meanwhile, a number of state legislatures are statutorily providing some mental patients with the right to refuse certain types of treatment, principally shock therapy, psychosurgery, and experimental drug treatment. A recently enacted New York statute, for example, requires "consent for surgen', shock treatment, major medical treatment in the nature of surgen- or the use of experimental drugs or procedures."2" A state court has interpreted this statute as requiring "the consent of the patient himself, providing he possesses the mental capacity to knowingly consent or withhold his consent," and held that one patient, even though she had chronic undifferentiated schizophrenia, with a tendency towards acute flares, still had the mental capacity to withhold the consent required for electroshock therapy.24 Most states, however, have not enacted laws recognizing even these very limited refusal rights, though nine states do control very intrusive treatments.3 In the great majority of states, an involuntary adult patient today has no legally enforceable right to refuse treatment of any sort.

CHILDREN'S RIGHTS

While the adult's right to refuse treatment is limited and rarely recognized, the child's right to refuse is rarer and more limited still. Furthermore, if adults' rights in this area should expand in the future, this is no assurance that children's rights will also grow. It was not until the middle of this century that the United States Supreme Court ruled that any of the personal rights enumerated in the Constitution apply to children as well as to adults.2-' Since then, a number of High Court decisions have confirmed and expanded the rights of minors. But this expansion has been principally in the area of a child's relationship with the State, in such contexts as juvenile courts^ and educational systems.2' Rarely do courts intervene to protect children's interests against those of their parents. This reluctance is usually attributed to a judicial commitment to maintaining family unity, even when that requires depriving children of legal bargaining power.25

In medical matters, parental control is manifested in the common -law rule that only the parents or guardians, not the child, have the legal capacity to consent or withhold consent to treatment of their children. A physician failing to obtain parental consent was, and in general still is, liable for battery to the child - the essence of battery being an unconsented-to touching. -,; The only common exception to this rule is in neglect cases, where the State's interest in protecting the child is felt to outweigh the parents' rights. Although some courts and state legislatures have carved out exemptions so as not to hold physicians liable in the case of "mature" or "emancipated" minors, in emergencies, or in such areas as treatment for venereal disease or drug dependency, the general requirement of parental consent remains.

CHILDREN'S RIGHTS AT ENTRANCE

What are children's rights in the mental health area? First, at the threshold of treatment, the commitment process, we find that in those types of commitment legally classified as involuntary (where the minor's interest in liberty is in conflict with the State's desire to commit him), the child's procedural protections are beginning to grow somewhat, along with those of adults. For example, the California Court of Appeals recently held that a juvenile court may not order involuntary commitment without complying with the procedural safeguards in the state's adult mental commitment act.-7 The Constitutional ban on cruel and unusual punishments has been held to apply to minors, even when such punishments are labeled as confinement for rehabilitative purposes.28 And a federal appeals court has upheld a minor's right to counsel at every step of an involuntary-commitment proceeding.29 Even in that case, however, we find the court distinguishing between a child's rights with respect to the State and his rights with respect to his parents. Although the court ruled that the boy had a right to counsel, it implied that his mother might have been able to waive that right had she expressly chosen to do so.

Perhaps the mental health area in which minors have traditionally been afforded the fewest legal protections is in so-called voluntary commitments. In most states, a parent or guardian may "voluntarily" commit his child or ward to a mental institution. If the facility agrees to accept the child, there is no review - judicial, administrative, or any other - to determine whether the commitment is in any sense voluntary on the part of the child or is in fact called for by the child's mental condition. This state of affairs results from the rule saying that parents, not the child, have the only effective right to consent or to withhold consent. It could be argued that since a child is subject to the control of his parents or their agents (such as baby-sitters) at home, he loses no freedom when they have him admitted to an institution. Such a view, however, does not give appropriate weight to the relatively massive deprivation of liberty associated with institutional life compared with that of home life.

One exception to this situation is emerging in the case of older minors. A 1952 NIMH model statute provided that a person may at age 16 apply for voluntary admission to a mental hospital without parental consent.'"1 In Connecticut, one of several states that have adopted this or a similar provision in their mental health codes, a state superior court decided in the case of Melville v. Sabbatino that a boy of 15 who had been "voluntarily" committed to the Yale Psychiatric Institute by his parents had the power, at age 17, to demand his release on his own authority, even over his parents' objections.31 The court reasoned that the right to commit oneself voluntarily at age 16 implied a corresponding right to demand release from a voluntary commitment at the same age. Some other states, even before the Melville case, had been following this practice, granting to those minors old enough to voluntarily commit themselves under the states' statutes all the rights of voluntary adult patients. Massachusetts, for example, grants this right in its mental health regulations.32 It remains to be seen whether, in light of the Melville decision and a similarly reasoned abortion case in Maryland,33 this right will spread to other jurisdictions.

But what of children below the statutory age for personal voluntary admission? As stated before, in most states they have no right to refuse or resist commitment when "volunteered" by a parent or guardian; however, several opinions indicate that this also may be changing. In 1972 the Circuit Court of Cook County, Illinois, in a class action entitled In the Interest of Mary Lee and Pamela Wesley,*4 ruled that all children aged 13 through 17 who have been committed as voluntary patients to Illinois mental health facilities upon the application of third parties may request their own discharge. The institution then must, within five days, either release them or request a court hearing for involuntary commitment. At such a hearing, the minor is entitled to counsel, a jury, and other due-process protections. To ensure that committed children would be able to exercise these rights, the court appointed the Legal Assistance Foundation of Chicago as attorney and child advocate for all state wards who are hospitalized in mental health facilities. The court authorized and directed the attorneys to examine the records of, and if necessary interview, these minors to determine if a request for release or any other action should be taken in their behalf. Dozens of children have applied for and obtained release as a result of that court order.

A parallel case was decided in Nashville, Tennessee, in April, 1974. The federal district court, in Saville v. Treadway,35 ordered that new admission procedures be instituted at a center for the retarded. Written consent of the patient is now required for voluntary commitment of those age 16 or over who have the capability to understand the fact of the proposed admission. For those under 16, an admissions review board must conduct hearings before the proposed admission. The board is made up of a representative of the Tennessee Association for Retarded Children and Adults, a person with training and experience in treatment of the mentally retarded, and a representative of the Development Disabilities Council. One of these three board members must be the parent of a mentally retarded person. At the hearing, the proposed resident is assured the assistance of counsel and the right to be heard, to question witnesses, and to request further professional evaluations.

Although the Illinois and Tennessee cases both provide children with means to resist voluntary commitment, the procedural methods they prescribe are quite different. In Illinois the child may request release and must be granted it unless the institution wishes to apply for an involuntary-commitment court hearing, but the child (or the child's advocate) must initiate the request for release, and may do so only after the child has been admitted to a mental facility. In Tennessee, on the other hand, all proposed voluntary patients under 16 are accorded an automatic hearing before admission; but the hearing is conducted by an administrative agency, and any subsequent appeal to the courts requires the initiative of the patient or his attorney. These differences are, perhaps, necessitated in part by the ages of the children affected, and by the fact that the Tennessee opinion applies only to children classified as retarded, whereas the Illinois order affects those classified as mentally ill as well. But I believe that three major differences in these approaches - review before or after commitment, review by court or administrative agency, and review initiated automatically or only on the patient's request - represent basically different legal models for providing a child the right to refuse an improper commitment. After some period of observing their actual operation, we can perhaps determine which provisions of each model more adequately accomplish this goal without creating or aggravating other problems for the patient or for society. At least two other cases attacking the "voluntary" commitment of minors by parents or guardians are now before the courts in Pennsylvania and Michigan.36 They may result in additional legal approaches to a solution of this problem.

Why is it that a few courts are now daring to intervene in this area of traditional parental power, interposing the power of the State between parents and children? I believe that part of the answer, even though rarely mentioned by a court, lies in the fact that it is not parents but guardians who are the applicants in many of these so-called voluntary commitments. Further, it is frequently not a personal guardian but a state agency that is playing the parent's role. Although such an institutional guardian may, by statute, enjoy the same rights as a parent, I believe that it is easier for a court to viewjudicial intervention in such cases more as a limitation on state power than as an infringement on parental rights. The U.S. Court of Appeals for the Seventh Circuit is one of the few courts that have articulated this reasoning:

"While a parent, as legal custodian of his child, may be able to restrict his child's liberty with impunity (subject, of course, to child abuse legislation), it does not follow that a state has the same unfettered rights as a parent merely because it becomes legal custodian of the child. The state, even when acting in a 'private' capacity, is always subject to the limitations of the Fourteenth Amendment."37

This is certainly not the complete answer, however, since some of these suits involve real parents and their natural children. If the full explanation for these judicial interventions were known, it would probably include the following:

- A growing skepticism on the part of judges (and the general public) concerning the mental health profession's ability to diagnose, treat effectively, or even define mental illness.38

- A greater awareness of the intolerable conditions within many mental institutions39 and a desire to encourage the use of less drastic alternatives.17

- An increased recognition that not all parents and guardians can be trusted to act always in the best interest of their children and wards.4"

- A belief that many children are capable of much more responsible decision making, particularly with regard to their own fate, than law has permitted them.41

- The realization that there are few, if any, valid reasons for distinguishing between many juvenile court adjudications (in which children now enjoy rather stringent legal safeguards) and "voluntary" commitments (in which they have enjoyed none). "Depending upon the initial decision of their parents, children can either be referred to mental hospitals or to juvenile courts for exactly the same behavior."42

CHILDREN'S RIGHTS WITHIN THE INSTITUTION

Once a child has crossed the threshold of voluntary commitment and is within the institution, he, like an adult, has no recognized general right to refuse treatment. Furthermore, even in those states that require consent for very intrusive treatments, such as electroshock, the statutes sometimes fail to specify whose consent is required in the case of minor patients.3 Consequently, many courts, relying on the common-law rule, are likely to hold that the consent of a parent or guardian is sufficient. Some state mental health regulations specify that it is the consent of a parent or guardian, rather than that of a minor patient, that is required.43

An HEW "draft working document" prepared by the National Institutes of Health recommends that clinical research entailing risk on children be tightly controlled. It would require the consent of both parents and of the child himself if he is seven years of age. Children with no natural or adoptive parents available would be categorically excluded from such research.44 Some states attempt to control intrusive treatment of minors by requiring the consent, not of the patient, but of independent medical experts. Massachusetts requires the concurrence of the Commissioner of Mental Health and two independent child psychiatrists for the administration of electroshock treatment to any Panent who is under the age of 13.45

A CAVEAT

Finally, lest I be accused of claiming that lawalone can solve this complex social problem, I should mention one early result of the Illinois court order permitting a voluntary minor patient to demand his own discharge. A number of state wards requested release and were told that the hospital would not oppose it, only to learn that their guardian, the Illinois Department of Children and Family Services, had little or no prospect of finding placements for them outside the mental hospital. Some of these children then retracted their requests for discharge.46 The court has responded bv issuing more orders, including one to the state agency responsible for finding placements.47 But it remains to be seen how effective such orders can be in alleviating long-term problems.

The lesson to be learned, I believe, is the old, familiar one that such problems do not exist in a vacuum and must be addressed in the context of our whole social system. But 1 am encouraged by the fact that, at long last, they are at least beginning to be addressed.

BIBLIOGRAPHY

1. Annas and Healey. The patient rights advocate: Redefining the doctor-patient relationship in the hospital context. Vanderbilt L Rev 27 (1974), 243, 248.

2. Matter of Josiah Oakes Law Rep 8 (Mass., 1845), 123, 125.

3. Note, Civil commitment of the menially ill. Harv. L. Rev. 87 (1974), 1190. 1202 ff (hereinafter HLR Note).

4. Ibid., p. 1205, citing American Bar Foundation, The Mentally Disabled and the Law, 36 (rev. ed. S. Brakel and R. Rock, 1971).

5. In re Ballay, 482 F.2d 648 (D.C. Cir., 1973); Herylord v. Parker, 396 F.2d 393 (10th Cir., 1968), Bell v. Wayne County General Hospital. Consolidated Civil Action No 36384 (U.S.D.C., E.D Mich., June 3, 1974), Lessard v. Schmidt, 349 F, Supp 1078 (ED Wis., 1972), vacated (but with no opinion on the substantive issue) 94 S. Ct. 713 (1974), Dixon v Attorney General of Pa., 325 F. Supp 966 (M.D, Pa., 1971), State ex rel. Hawks v. Lazaro, 202 S.E. 2d 109 (W. Va., 1974).

6. Humphrey v. Cady, 405 U.S. 504 (1972); Jackson v. Indiana, 406 U.S. 715 (1972).

7. Ibid., p. 509.

8. Belger v. Arnot. 344 Mass. 679, 183 N.E. 2d 866 (1962), 683, 870.

9. Ferleger, Loosing the chains: In-hospital civil liberties of mental patients. Santa Clara Lawyer 13 (1973), 447, 470.

10. Szasz. Voluntary mental hospitalization An unacknowledged practice of medical fraud. N. Engl. J. Med. 287 (1972), 277, Gilboy and Schmidt. Voluntary hospitalization of the mentally ill Northwestern L. Rev. 66 (1971), 429.

11. Winters v. Miller, 446 F.2d 65 (2d Cir., 1971).

12. Knecht v. Gillman, 488 F.2d 1136 (8th Cit . 1973); Mackey v. Procunier, 477 F 2d 877 (9th Cir., 1973).

13. Olmstead v U.S., 277 U.S. 438, 478 (1928) (Brandeis dissent).

14. Griswold v Connecticut, 381 U.S. 479 (1965).

15. Stanley v. Georgia, 394 U.S. 557 (1969).

16. Roe v Wade, 410 U.S. 113 (1973).

17. Chambers Alternatives to civil commitment of the mentally ill: Practical guides and constitutional imperatives Mich. L. Rev. 70 (1972). 1107; Covington v. Harris, 419 F.2d 617. 623 (D.C. Cir., 1969), Lake v. Cameron, 364 F.2d 657 (D.C. Cir., 1966).

18. Wyatt v. Slickney, 344 F Supp. 373, 380 (M.D. Ga., 1972).

19. Burnham v. Dept. of Public Health, 349 F. Supp 1335 (N. D. Ga., 1972).

20. N.Y. Mental Hygiene Law § 1503(b)(4).

21. N.Y.C. Health and Hospital Corp. v. Stein. 335 N.Y.S. 2d 461, 462, 464, 465 (1972).

22. Haley v. Ohio, 332 U.S. 569 (1947); Kent v U.S., 383 U.S. 541 (1966).

23. In re Gault, 387 U.S. 1 (1967); In re Winship, 397 U.S. 357 (1970).

24. Tinker v. Des Moines School District, 393 U.S. 503 (1969), Wisconsin v. Yoder, 406 U.S. 205 (1972).

25. Kleinfeld. The balance of power among infants, their parents and the state. Fam L.Q. 4 (1970), 409, 434.

26. Lacey v. Laird, 166 Ohio St. 12, 139 N. E. 2d 25 (1956).

27. In re L.L. No. 1 Crim. 12699 (Cal. Ct. App. May 17, 1974). excerpted in Clearinghouse Review (July, 1974), 211.

28. Inmates of Boys' Training School v. Affleck, 346. F. Supp. 1354, 1366 (1972).

29. Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968).

30. Public Heallh Service Publication No. 51 . A Draft Act Governing Hospitalization of the Mentally Ill (rev Sept., 1952) at § 2. reprinted in Brakel and Rock, eds., The Mentally Disabled and the Law. Amer. Bar. Found. (rev. ed 1971), Appendix A.

31. Melville v. Sabbatino, 30 Conn. Sup. 320, 313 A.2d 886 (1973).

32. Mass Dept. of Ment Health Reg MH 15.2 §4.

33. Matter of Smith, 16 Md App 209, 295 A.2d 238 (1972).

34. In the Interest of Lee and Wesley, Nos 68J (D), 1362, 66J (D), 6383 and 68J 15805. Cir. Ct. of Cook County, Cnty Dept.. Juv. Div. (Ill., Feb 29 and Aug 24, 1972).

35. Seville v. Treadway. Civil Action No. 6969 (U.S.D.C., M. D. Tenn., April 18, 1974),

36. Bartley v. Haverlord State Hosp., Civil Action No 72-2272 (U.S.D.C., E D. Pa., 1974); Jobes et al. v. Michigan Department of Mental Health. Wayne Cnty, Cir. Ct. (Mich., 1974).

37. Vann v. Scott. 467 F.2d 1235, 1240 n. 15 (1972) (dicta).

38. Rosenham. On being sane m insane places Science 179 (1973), 250, reprinted in Santa Clara Lawyer 13 (1973), 379; Roth, Dayley, and Lerner. Into the abyss: Psychiatric reliability and emergency commitment statutes. Santa Clara Lawyer 13 (1973), 400; Wexler Token and taboo: Behavior modification, token economies, and the law, Cal. L. Rev. 82 (1973). 8v, Shapiro. Legislating the control of behavior control: Autonomv and the coercive use of organic therapies. S. Cal. L. Rev. 47 (1974), 237.

39. Ferleger, op. cit., Wyatt v. Stickney. op cit.. Valley of horrors Time (Aug 5. 1974), 47.

40. Bartley v. Haveriord State Hosp. op cit: Incarcerated juveniles - why? An analysis of partial data submilted by defendants in response to interrogatories by plaintiffs, filed Sept. 17, 1973, Brontenbrenner. The origins of alienation. Scientific American 231.2 (Aug., 1974), 53. 55; Judge (now Chief Justice) Burger's dissent in Kent v. U.S. 401 F. 2d 408, 416. n. 4 (D.C. Cir. 1968).

41. Morse The rights of adolescents receiving mental heallh services: Psychological issues, 15-17 (draft of unpublished paper, 1974), on file at Center for Law and Health Sciences, Boston University School of Law.

42. Sandman Brief Amicus Curiae in Support of Plaintiffs, 6, Bartley v. Haverford State Hospital. Civil Action No 72-2272 (U.S.D.C. E.D Pa. Oct 2, 1973).

43. Mass D.M.H. Reg. MH 18.1, § 2b (May 1, 1973).

44. 38 Fed Register 31742 (Nov 16. 1973).

45. Mass D.M.H. Reg. MH 18.1. §3 (May 1, 1973).

46. In the Interest of Lee and Wesley, op cit., Memorandum Opinion (August 24, 1972), 4.

47. Ibid., pp. 6-9.

10.3928/0048-5713-19750401-05

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