{"status":"ok","message-type":"work","message-version":"1.0.0","message":{"indexed":{"date-parts":[[2026,7,7]],"date-time":"2026-07-07T19:50:24Z","timestamp":1783453824168,"version":"3.55.0"},"reference-count":45,"publisher":"Cambridge University Press (CUP)","issue":"4","license":[{"start":{"date-parts":[[2021,1,1]],"date-time":"2021-01-01T00:00:00Z","timestamp":1609459200000},"content-version":"unspecified","delay-in-days":4018,"URL":"https:\/\/www.cambridge.org\/core\/terms"}],"content-domain":{"domain":[],"crossmark-restriction":false},"short-container-title":["J. Law. Med. Ethics"],"published-print":{"date-parts":[[2010]]},"abstract":"<jats:p>The goal of my comments regarding the case study of Eve Hyde \u2014 presented in the introduction of this symposium \u2014 is not first and foremost to resolve the conflict between individual autonomy and medical paternalism regarding non-consensual psychiatric treatment. Instead, the goal is to step back far enough from what is generally accepted as the morally appropriate basis for non-consensual psychiatric treatment, including involuntary hospitalization and medication, and to ask very basic questions about when patients may permissibly be treated without their consent. My goal, in short, is Socratic \u2014 to explore aspects of what we take for granted in order better to determine whether we ought to take them for granted. Commentators routinely urge that it is morally permissible forcibly to treat psychiatric patients, such as Eve Hyde, in order to preserve the patient\u2019s best interests and restore the patient\u2019s autonomy. Such arguments typically specify duties of beneficence toward others, while appreciating personal autonomy as a positive value to be weighed against other factors.<\/jats:p>","DOI":"10.1111\/j.1748-720x.2010.00532.x","type":"journal-article","created":{"date-parts":[[2010,11,24]],"date-time":"2010-11-24T15:56:14Z","timestamp":1290614174000},"page":"789-798","source":"Crossref","is-referenced-by-count":13,"title":["Non-Consensual Treatment is (Nearly Always) Morally Impermissible"],"prefix":"10.1017","volume":"38","author":[{"given":"Mark J.","family":"Cherry","sequence":"first","affiliation":[],"role":[{"vocabulary":"crossref","role":"author"}]}],"member":"56","published-online":{"date-parts":[[2021,1,1]]},"reference":[{"key":"S1073110500013802_bib27","unstructured":"27. Rogers 478 F. Supp. at 1361 and 1367."},{"key":"S1073110500013802_bib38","doi-asserted-by":"publisher","DOI":"10.1192\/bjp.172.6.477"},{"key":"S1073110500013802_bib40","doi-asserted-by":"publisher","DOI":"10.3109\/00048679809073867"},{"key":"S1073110500013802_bib2","unstructured":"2. Slater v. Baker and Stapleton, 95 Eng. Rep. 860, 2 Wils. K.B. 359 (1767)."},{"key":"S1073110500013802_bib11","volume-title":"Decision Making in Psychiatry and the Law","author":"Alexander","year":"1991"},{"key":"S1073110500013802_bib18","doi-asserted-by":"publisher","DOI":"10.1080\/09585180210123285"},{"key":"S1073110500013802_bib17","doi-asserted-by":"crossref","first-page":"357","DOI":"10.1046\/j.1365-2850.2001.00404.x","article-title":"\u201cA Plea for Respect: Involuntary Hospitalization Psychiatric Patients' Narratives about Being Subject to Coercion,\u201d","volume":"8","author":"Olofsson","year":"2001","journal-title":"Journal of Psychiatric and Mental Health Nursing"},{"key":"S1073110500013802_bib24","doi-asserted-by":"publisher","DOI":"10.1176\/ajp.155.11.1486"},{"key":"S1073110500013802_bib1","doi-asserted-by":"publisher","DOI":"10.1076\/jmep.29.2.237.31503"},{"key":"S1073110500013802_bib21","doi-asserted-by":"publisher","DOI":"10.1002\/bsl.2370010410"},{"key":"S1073110500013802_bib25","doi-asserted-by":"publisher","DOI":"10.1111\/j.1365-2850.2004.00764.x"},{"key":"S1073110500013802_bib39","unstructured":"39. New York state passed Kendra's law in 1999, (section 9.60 of the Mental Hygiene Law) which permits a psychiatrist or a relative involuntarily hospitalize a mentally ill individual who (l) has a history of violence, (2) who will not take his medication, and (3) who has been hospitalized within the past three years. For discussion see Pense, , supra note 13, 303; for a summary of the law from the New York State Office of Mental Health see <www.omh.state.ny.us\/omhweb\/kendra_web\/ksummaryhtm> (last visited September 8, 2010)."},{"key":"S1073110500013802_bib32","first-page":"49","article-title":"\u201cPsychiatric Advance Directive: Patients Plan for When They're Not Competent,\u201d","volume":"24","author":"Wang","year":"2008","journal-title":"Medical Ethics Advisor"},{"key":"S1073110500013802_bib30","doi-asserted-by":"publisher","DOI":"10.1207\/s15324826an1302_5"},{"key":"S1073110500013802_bib5","unstructured":"5. This doctrine was further developed in Pratt v. Davis (224 Ill. 300, 79 N.E. 562 [1906]). There the court held: \u201cOrdinarily, where the patient is in full possession of all his mental faculties and in such physical health as to be able to consult about his condition without the consultation itself being fraught with dangerous consequences to the patient's health, and when no emergency exists making it impracticable to confer with him, it is manifest that his consent should be a prerequisite to a surgical operation\u201d (at 564)."},{"key":"S1073110500013802_bib31","doi-asserted-by":"publisher","DOI":"10.1177\/070674370705200610"},{"key":"S1073110500013802_bib29","unstructured":"29. See Appelbaum, , supra note 24, at 1487."},{"key":"S1073110500013802_bib34","unstructured":"34. As Engelhardt notes, \u201cIf others are likely to contract a disease if left unvaccinated and spread it to innocent individuals who cannot vaccinate themselves or otherwise protect themselves, force may be justified to require vaccination in order to protect individuals who otherwise would be brought into contact with the disease without their consent, without an opportunity to avoid the contact, and without an opportunity to avoid contracting the disease.\u201d See Engelhardt, , supra note 19, at 365."},{"key":"S1073110500013802_bib7","unstructured":"7. Olmstead v. United States, 277 U.S. 428, 278 (1928)."},{"key":"S1073110500013802_bib22","unstructured":"22. In many states couples may elect to enter a secular \u201cCovenant Marriage,\u201d which significantly restricts the possibility of divorce. \u201cWe do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live. We have chosen each other carefully and disclosed to one another everything which could adversely affect the decision to enter into this marriage. We have received premarital counseling on the nature, purposes, and responsibilities of marriage. We have read the Covenant Marriage Act, and we understand that a Covenant Marriage is for life. If we experience martial difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling.\u201d State of Louisiana. RS 9:273, available at <http:\/\/www.legis.state.la.us\/lss\/lss.asp?doc=107167> (last visited September 20, 2010)."},{"key":"S1073110500013802_bib14","unstructured":"14. Id."},{"key":"S1073110500013802_bib10","volume-title":"Kidney for Sale by Owner: Human Organs, Transplantation, and the Market","author":"Cherry","year":"2005"},{"key":"S1073110500013802_bib8","unstructured":"8. In re President and Directors of Georgetown College, Inc. 331 F.2nd 1000, 1017 [D.C. Cir.], cert. Denied, 337 U.S. 978 (1964)."},{"key":"S1073110500013802_bib15","doi-asserted-by":"publisher","DOI":"10.1002\/bsl.539"},{"key":"S1073110500013802_bib45","volume-title":"Kidney for Sale by Owner: Human Organs, Transplantation, and the Market","author":"Cherry","year":"2005"},{"key":"S1073110500013802_bib35","unstructured":"35. According to the American Lung Association, in the period from 1993 to 2002, patients with extensively-drug resistant tuberculosis were some 64% more likely to die or have treatment failure than patients with ordinary tuberculosis. American Lung Association, Tuberculosis Fact Sheet, May 2007, available at <http:\/\/www.lungusa.org\/lung-disease\/tuberculosis\/tuberculosis-fact-sheet.html> (last visited September 8, 2010)."},{"key":"S1073110500013802_bib16","doi-asserted-by":"publisher","DOI":"10.1080\/08039480601129382"},{"key":"S1073110500013802_bib20","doi-asserted-by":"publisher","DOI":"10.1007\/s001270050108"},{"key":"S1073110500013802_bib12","doi-asserted-by":"publisher","DOI":"10.1046\/j.1365-2850.2003.00659.x"},{"key":"S1073110500013802_bib37","doi-asserted-by":"publisher","DOI":"10.1375\/pplt.13.2.166"},{"key":"S1073110500013802_bib23","doi-asserted-by":"publisher","DOI":"10.1080\/09638230310001603500"},{"key":"S1073110500013802_bib26","unstructured":"26. In Rennte v. Klein (720 F. 2nd, 266, (3rd Cir. 1983), the court found a qualified right for involuntarily committed patients, who are competent, to refuse medication. The New Jersey administrative practice of obtaining a second psychiatric opinion in cases of patients who refuse treatment was judged as adequate protection for this right."},{"key":"S1073110500013802_bib42","doi-asserted-by":"publisher","DOI":"10.1093\/swr\/29.2.87"},{"key":"S1073110500013802_bib36","unstructured":"36. O'Connor v. Donaldson 422 U.S. 563 (1975) at 475\u2013476."},{"key":"S1073110500013802_bib43","doi-asserted-by":"publisher","DOI":"10.1080\/13651500600650026"},{"key":"S1073110500013802_bib6","unstructured":"6. Schloendorff. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 93, 133 N.Y.S. 1143 (1914) at 93."},{"key":"S1073110500013802_bib44","unstructured":"44. Among the leading causes of death for 2003, the Center for Disease Control (CDC) lists 65,163 deaths due to influenza and pneumonia. The CDC estimates that between 5% and 20% of U.S. residents suffer from influenza each year, more than 200,000 require hospitalization, with more than 36,000 Americans dying yearly from influenza complications. Center for Disease Control, \u201cInfluenza (flu): Questions & Answers: The Disease,\u201d 2007, available at <www.cdc.gov\/flu\/about\/qa\/disease.htm> (last visited September 8, 2010). Note, the U.S. does not forcibly inoculate for influenza and pneumonia, rather it stipulates classes of high risk persons, and recommends that they and others should likely seek immunization."},{"key":"S1073110500013802_bib28","doi-asserted-by":"publisher","DOI":"10.1176\/ajp.155.11.1508"},{"key":"S1073110500013802_bib41","first-page":"1246","article-title":"\u201cThe Danger of Coercive Psychiatry,\u201d","volume":"61","author":"Szasz","year":"1975","journal-title":"American Bar Association Journal"},{"key":"S1073110500013802_bib4","unstructured":"4. Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905), at 14."},{"key":"S1073110500013802_bib9","unstructured":"9. Planned Parenthood v. Casey (505 U.S. 833; 112 S. Ct. 2791; 120 L. Ed. 2d 674; 1992)."},{"key":"S1073110500013802_bib19","doi-asserted-by":"crossref","DOI":"10.1093\/oso\/9780195057362.001.0001","volume-title":"The Foundations of Bioethics","author":"Engelhardt","year":"1996"},{"key":"S1073110500013802_bib33","unstructured":"33. For example, if the incompetent adult patient has not appointed an agent under a durable power of attorney for health care, or other appropriate order, Texas defaults to a family-oriented consent procedure. The default is family-oriented in that the authorized decision-makers are what are characterized in Texas law as \u201cqualified relatives\u201d (Texas Statute, \u00a7166.081 [9]). Such qualified relatives are stipulated as being in the following order of priority: The patient's spouse, the patient's reasonably available adult children, the patient's parents, or the patient's nearest living relative (Texas Statute, \u00a7166.039 [b]). While the law requires that the family member's decisions be based on knowledge of what the patient himself would want, if known, the qualified relative can de facto interpret the patient's wishes in terms of the surrogate's wishes, as long as these do not seem out of place to the physician. In Texas the burden of proof that the qualified relative accurately reports the wishes of the patient is the least stringent at law: A mere preponderance of proof. Texas law permits significant medical decisions to be made within the context of the family, unless the individual has taken prior specific steps to avoid such a circumstance."},{"key":"S1073110500013802_bib13","volume-title":"Medical Ethics: Accounts of the Cases and Issues that Define Medical Ethics","author":"Pense","year":"1998"},{"key":"S1073110500013802_bib3","unstructured":"3. Union Pacific R Co. v. Botsford, 141 U.S. 250, 251 (1891)."}],"container-title":["Journal of Law, Medicine &amp; Ethics"],"original-title":[],"language":"en","link":[{"URL":"https:\/\/api.wiley.com\/onlinelibrary\/tdm\/v1\/articles\/10.1111%2Fj.1748-720X.2010.00532.x","content-type":"unspecified","content-version":"vor","intended-application":"text-mining"},{"URL":"http:\/\/journals.sagepub.com\/doi\/pdf\/10.1111\/j.1748-720X.2010.00532.x","content-type":"application\/pdf","content-version":"vor","intended-application":"text-mining"},{"URL":"https:\/\/www.cambridge.org\/core\/services\/aop-cambridge-core\/content\/view\/S1073110500013802","content-type":"unspecified","content-version":"vor","intended-application":"similarity-checking"}],"deposited":{"date-parts":[[2024,4,1]],"date-time":"2024-04-01T13:11:55Z","timestamp":1711977115000},"score":1,"resource":{"primary":{"URL":"https:\/\/www.cambridge.org\/core\/product\/identifier\/S1073110500013802\/type\/journal_article"}},"subtitle":[],"short-title":[],"issued":{"date-parts":[[2010]]},"references-count":45,"journal-issue":{"issue":"4","published-print":{"date-parts":[[2010]]}},"alternative-id":["S1073110500013802"],"URL":"https:\/\/doi.org\/10.1111\/j.1748-720x.2010.00532.x","relation":{},"ISSN":["1073-1105","1748-720X"],"issn-type":[{"value":"1073-1105","type":"print"},{"value":"1748-720X","type":"electronic"}],"subject":[],"published":{"date-parts":[[2010]]}}}