CONSTITUTIONAL LAW - AN INVOLUNTARILY DETAINED MENTAL PATIENT'S INFORMED CONSENT IS INVALID FOR EXPERIMENTAL PSYCHOSURGERY - KAIMOWITZ AND JOHN DOE V DEPARTMENT OF MENTAL HEALTH FOR THE STATE OF MICHIGAN (1973)

• NCJ Number: 17813
• Journal: Chicago-Kent Law Review Volume: 50 Issue: 3 Dated: (WINTER 1973) Pages: 526-540
• Author(s): C J FABRI
• Date Published: 1973
• Length: 15 pages
• Corporate Author: Illinois Institute of Technology
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

EXAMINATION OF THE USE OF PSYCHOSURGICAL PROCEDURE AND ITS EFFECT ON EXPERIMENTAL SUBJECTS, TOGETHER WITH AN EXPLANATION AND EVALUATION OF THE REASONING OF THE KAIMOWITZ DECISION.

Abstract

THIS DISCUSSION ALSO EXPLORES POSSIBLE LEGISLATIVE SOLUTIONS TO THE LEGAL QUESTIONS POSED BY PSYCHOSURGERY ON CONFINED PERSONS. THE KAIMOWITZ COURT EFFECTIVELY DENIED THE RIGHT TO CONSENT TO PSYCHOSURGERY TO ALL INVOLUNTARILY CONFINED PERSONS UNDER ITS JURISDICTION BASED ON THE REQUIREMENTS (COMPETENCY, KNOWLEDGES, AND VOLUNTARINESS) FOR AN EFFECTIVE WAIVER OF A CONSTITUTIONAL RIGHT. THE CONSTITUTIONAL RIGHTS IN QUESTION WERE HELD TO BE THE FIRST AMENDMENT RIGHT TO BEGET IDEAS AND THE FOURTH AND FOURTEENTH AMENDMENT RIGHT OF PRIVACY, THE COURT REASONED THAT A PATIENT WHOSE EVERY DECISION HAS BEEN SUPERIMPOSED BY ADMINISTRATIVE ORDER (IN THIS CASE FOR A PERIOD OF 18 YEARS) CANNOT INDEPENDENTLY CONSENT TO EXPERIMENTAL PSYCHOSURGERY, THAT THE EXPERIMENTAL NATURE OF PSYCHOSURGERY OBVIATES KNOWLEDGEABILITY, AND THAT THE INTERIOR CONSTRAINT OF THE INSTITUTIONAL SETTING IS SUFFICIENT TO VITIATE THE CONSENT OF AN INVOLUNTARILY CONFINED MENTAL PATIENT. THE AUTHOR RAISES POSSIBLE CRITICISMS OF THIS RATIONALE, NAMELY THAT UNCONTROLLED CRIMINAL AND SOCIAL THOUGHTS FALL OUTSIDE FIRST AMENDMENT GUARANTEES AND THAT LEGAL PRECEDENT DENIES THE ARGUMENT THAT THE COERCIVE ATMOSPHERE OF THE INSTITUTION VITIATES THE PATIENT'S OR OFFENDER'S CONSENT. SHE ALSO DETERMINES THAT UNDER AN INFORMED CONSENT APPROACH, THE PSYCHOSURGERY IN KAIMOWITZ COULD HAVE BEEN PERFORMED. THE AUTHOR CONCLUDES THAT THE CONSTITUTIONAL PREMISE OF THE KAIMOWITZ DECISION IS BOTH VALID AND DEFENSIBLE SINCE IT RECOGNIZES BOTH THE REALITY OF THE DEFENDANT'S INCOMPETENCE TO CONSENT TO PSYCHOSURGERY AND THE GRAVITY OF THE PSYCHOSURGERY ITSELF. HOWEVER, DUE TO THE COURT'S DEPARTURE FROM THE FAMILIAR INFORMED CONSENT APPROACH, SHE RECOMMENDS STATE AND/OR NATIONAL LEGISLATION IN THIS AREA.