Can Medical Interventions Serve as 'Criminal Rehabilitation'?

According to what Douglas calls ‘the consent requirement’, neuro-correctives can only permissibly be provided with the valid consent of the offender who will undergo the intervention. Some of those who endorse the consent requirement have claimed that even though the requirement prohibits the imposition of mandatory neurocorrectives on criminal offenders, it may yet be permissible to offer offenders the opportunity to consent to undergoing such an intervention, in return for a reduction to their penal sentence. I call this the neurocorrective offer. In this chapter I consider the coercion-based objection to the neurocorrective offer, which claims that offenders cannot provide valid consent to undergoing a neurocorrective on the basis of this offer because it is inherently coercive. Having outlined early formulations of this argument, I point out that there are in fact two different versions of this objection, which appeal to different understandings of the concepts of coercion, consent and voluntariness.

The British Journal of Psychiatry, 2006

2017

Ethical considerations from prisoners in medical research: informed consent, free choice and risk/benefit analysis. Abstract Medical research with prisoners, classified by the Common Rule guidelines, as a vulnerable population, is an increasingly discussed topic within the field of bioethics due to the number of ethical challenges it poses despite the efforts conducted by governments from the 20th century to regulate and ensure that participants rights are respected. Among these challenges, the more pressing ones are informed consent in the context of questionable freedom of choice and confronted by a situation of uneven bargaining power between inmates as subjects and researchers. Due to the numerous scandals that have arisen due to unethical experimentation, new guidelines for research with prisoners are now enforced in a way that many experts consider crippling for the inmates. This paper will try to present an overview of the position of prisoners in medical research, the regulatory efforts made in recent history and will discuss the permissibility of research with inmates.

Social Science Research Network, 1990

The author examines two proposals to expand legal recognition of individual control over physical integrity. Protections for individual autonomy are discussed in relation to the right to die, euthanasia, medical treatment, and consensual and assaultive sexual behaviours. The author argues that at present, the legal doctrine of consent protects only those individual preferences which are seen to be congruent with dominant societal values; social preferences and convenience override all other individual choices. Under these conditions, more freedom to waive rights of physical integrity can only place socially vulnerable persons at great risk of abuse.

Affirming the doctrine of informed consent, the UK Supreme Court in Montgomery v Lanarkshire HB belatedly followed the Australian decision of Rogers v Whitaker, decoupling the duty to inform patients about the material risks of medical treatment from Bolam. The underlying commitment to patient autonomy coincides with a wider body of medical law that protects the right of capacitous adult patients to make treatment decisions, even if others consider those decisions bizarre and even if they will cause the patient serious harm. It is seemingly anomalous, therefore, that the Supreme Court in Montgomery referred to a 'therapeutic exception' (TE), as this suggests an underlying paternalistic approach. Contrary to this view, international examples suggest that a TE does not necessarily conflict with commitment to patient autonomy. In some countries, the exception mitigates the effects of a broadly objective test of materiality by enabling clinicians in exceptional circumstances to protect the autonomy interests of the particular patient. In others, it protects those incapable of an autonomous decision from harm. In England and Wales, however, alternative mechanisms can be interpreted to protect such patients from harm. On this basis, it is argued that the TE is obfuscatory, unnecessary and unjustified.

Psychiatry, 2004

Bioethics, 2018

The Bulletin of the American Academy of Psychiatry and the Law, 1980

At the beginning it seems appropriate to articulate certain perspectives and premises. First, abuses have occurred and sometimes continue. By abuses, I refer to the fact that some patients have been badly and even capriciously treated by mental health professionals; and that some patients have had their illnesses exacerbated by zealous advocacy which elevated patients' rights over their welfare. In short, patients have been and can be dehumanized both by inappropriate treatment and inappropriate lack of treatment. Neither the psychiatric nor the legal profession should be solely blamed for these excesses. Second, competent persons should have an unambiguous(4) right to determine their own treatment, and this right should be vigorously protected. Third, the presence of mental illness should not be confused with the incapacity to make informed-consent treatment decisions. Fourth, ongoing legal remedies exist to protect individuals from careless practitioners. Typically, the legal mechanism for doing this has been via the doctrine of informed consent. Like many abstract doctrines, this one tends to break down in extreme cases; hence the legal aphorism: hard cases make bad law. Traditionally, incompetence and involuntary status have posed vexing challenges to this doctrine. Thus, while civil law remedies, suits in tort, exist to protect all patients, both the courts and the le.$islatures have specifically banned certain treatments (e.g., psychosurkery or behavior modification with succinyl choline) for certain classes of patients (e.g., prisoners, or involuntarily-detained psychiatric patients, or retarded children).38 Fifth, treatment emergencies do exist (e.g., homicidal outbursts, suicidal or self-mutilatory rages, extreme agitations to the point of an irreversible inanition or electrolyte imbalance, or refusal to take even minimal nourishment) which require rapid therapeutic intervention if the patient is to be prevented from harming others or self.4o,41 In some cases, seclusion and! or restraint will not suffice to abate the emergency unless used for unconscionably long periods. Sixth, the ultimate aim of rethinking the right-of-involuntarypatient-to-refuse-treatment issue is to reduce and ideally eliminate abuses; that is, to enhance patient welfare. In general, increasing patient access both to treatment and to legal counsel should further this aim. Seventh and last, it is important to remind oneself that much of what is wrong with mental health care has little to do with the right to refuse treatment. Inequities in funding, inadequacies in training, misallocation of resources, and deficiencies in knowledge (about mental illness) all make present treatment less than ideal. Next, it is important to note the legal underpinnings of the right-torefuse-treatment doctrine. As many commentators have noted, that (4) It would be tempting to write about an "absolute right" in this regard but the courts have determined that certain treatment decisions, typically those which potentiallv affect others such as vaccination against contagious diseases, cannot be made absolutely.40

Criminal Justice Ethics, 2019

“Committing a crime might render one morally liable to certain forms of medical intervention”, claims Thomas Douglas, who stated in this context that “compulsory uses of medical correctives could in principle be justified.” This article engages critically with his and other arguments on the use of coercive neurocorrectives for criminal offenders. First, the rehabilitation assumption that includes—for coercive neurocorrectives to work as an alternative to incarceration—that rehabilitation is the “only goal” of criminal punishment is criticized. Additionally this article engages with the theoretical difficulty of solely rehabilitative approaches, and discusses why it is unfortunate to design neurocorrectives so as to be particularly harmful in order to imagine administering them as being a punishment. Second, until we know more about specific neurocorrectives, we are well advised not to undermine the most important objection against coercive neurocorrectives, namely offenders’ human rights. This article argues that the use of coercive neurocorrectives would particularly violate Article 3 of the European Convention on Human Rights which guarantees as an absolute right that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”, and finally holds that a still weak human right to mental integrity and self-determination should fundamentally come first.

Medical Law Review, 2016

BMC Psychiatry, 2007

S1 Coercion and cooperation and psychiatry for the person Juan E. Mezzich S2 Coercive treatment and stigma: is there a link? Wolfgang Gaebel S3 The ethical dilemma of coercion in psychiatry-a transcultural aspect Ahmed Okasha S4 Coercion in psychiatry: still an instrument of political misuse? Rob Keukens, Robert van Voren S5 Whose voice? Whose choice? Whose power? Judi Chamberlin S6 70 Years of coercion in German psychiatric Institutions, experienced and witnessed Dorothea Buck S7 Mandated community treatment: a promising concept for world psychiatry? John Monahan S8 Consensual vs. coercive treatment: new manifestations of an old dilemma Paul Appelbaum S9 Is it possible to define a best practice standard for coercive treatment in psychiatry? Norman Sartorius S10 Psychiatry and the law: do the fields agree in their views on coercive treatment? Julio Arboleda-Florez Symposium-Determinants and effects of coercive treatments in psychiatry S11 Determinants of perceived coercion and outcome in involuntarily committed patients Antonius WB van Baars, Cornelis L Mulder S12 Continuity of care after involuntary admission: does integration of mental healthcare matter? Andre Wierdsma S13 Determinants of emergency involuntary admission Louk van der Post S14 Symptoms, dangerousness and involuntary admission Cornelis L Mulder Symposium-How can coercive treatment and violence be avoided? S15 Epidemiology of inpatient violence and coercive measures Tilman Steinert S16 Alternatives to inpatient treatment in the acute phase Iris Hauth

In this article the author argues that involuntary psychiatric interventions are inherently dangerous and potentially harmful to their subjects, thus challenging the Hippocratic ethical principle of "first do no harm." Damages arising from coercion in common clinical situations are analyzed, as well as the motives of psychiatrists for persistently promoting an expansion of involuntary interventions. Alternate strategies to coercion are explored.

Journal of Bioethical Inquiry, 2013

In several jurisdictions, sex offenders may be offered chemical castration as an alternative to further incarceration. In some, agreement to chemical castration may be made a formal condition of parole or release. In others, refusal to undergo chemical castration can increase the likelihood of further incarceration though no formal link is made between the two. Offering chemical castration as an alternative to further incarceration is often said to be partially coercive, thus rendering the offender’s consent invalid. The dominant response to this objection has been to argue that any coercion present in such cases is compatible with valid consent. In this article, we take a different tack, arguing that, even if consent would not be valid, offering chemical castration will often be supported by the very considerations that underpin concerns about consent: considerations of autonomy. This is because offering chemical castration will often increase the offender’s autonomy, both at the time the offer is made and in the future.