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A Brief Analysis of the Constitutional Right Of the Mentally Retarded To Refuse Psychological Treatment (1985)

A Brief Analysis of the Constitutional Right Of the Mentally Retarded To Refuse Psychological Treatment (1985)

©1985, 2013 by Dallas Denny

Source: Dallas Denny. (1985). A brief analysis of the constitutional right of the mentally retarded to refuse psychological treatment. Paper for Drs. Mary McEvoy and Ken Denny, Special Education 341, George Peabody College of Vanderbilt University.



A Brief Analysis of the Constitutional Right Of the Mentally Retarded

To Refuse Psychological Treatment

By Dallas Denny

For Dr. Mary McEvoy and Ken Denny

Special Education 341 

Spring, 1985



Institutionalized mentally ill and mentally retarded persons are often subjected to various psychologlcal therapies against their will. There is a possible constitutional basis for a right to refuse treatment. Among these constitutional rights is the right of due process. Several of the most influential right to refuse treatment cases, including Lessard v Schmidt (1972), and O’Connor v Donaldson (1975), are briefly discussed, with especial regard to the right of due process.


For more than a century, mentally retarded individuals have been commonly segregated in residential institutions. Common reasons for placement in such institutions are simple intellectual deficiency and behavioral disturbance (Russell & Tanguay, 1981). The institutions were originally purely custodial, where “undesirable” individuals were placed so that the sensibilities of other citizens need not be offended by looking at them (Burgdorf & Burgdorf, 1975; Weicker, 1984). After reform movement dating to the time of the Civil War, the institutions began to be seen as places of “treatment” rather than as places of confinement.

Historically such treatments have included bloodletting, environmental or “milleau” therapy, psychosurgery, chemical and electoconvulsive therapies, administration of psychoactive drugs, individual and group counseling, and behavior therapy (Plotkin, 1977). Although these therapies have often been administered and overseen by medical personnel, especially psychiatrists, they are essentially psychological, rather than medical treatments. Plotkin notes:

 Unlike other adults who have not been convicted of a crime, persons thought to be mentally ill can be arrested and confined for “treatment” in a state institution for an indefinite period of time. While incarcerated, they are subjected to a veritable orgy of “therapeutic techniques” imposed upon them without their consent and often against their will by state-employed physicians. (p. 461).

The Constitution of the United States does not expressly address the right of an institutionalized person to refuse treatment, and such right has not been recognized by any court (Plotkin, 1977). However, there is considerable precedent from various courts, which found that certain individuals or classes of individuals did have a right to refuse treatment. Thus, there may be a constitutional basis for a right to refuse psychological treatment. This basis lies with freedom of expression (First Amendment) and in the right to privacy under the Constitution (First, Fourth, Fifth, Ninth, and Fourteenth Amendments; White & White, 1981), and in the prohibition of cruel and unusual and punishment (Eighth Amendment) and violation of civil rights, due process, and equal protection (Fourteenth Amendment; Plotkin, 1977).

There have been a number of significant court decisions about the right of institutionalized mental patients to refuse treatment. The majority of cases have concerned mentally ill rather than mentally retarded persons; however the right to treatment is the same for both classes of persons, and no distinction will be made in presenting relevant cases. An exhaustive listing of all cases is beyond the scope of this paper; therefore, several of the most important cases will be discussed. Particular attention will be paid to the right to due process.

Lessard v Schmidt (1972) was a class action suit heard by the united States District Court. In this case, Roberta Lessard was institutionalized against her wishes. She was given only short notice before each of her commitment hearings, and at times was not allowed to seek counsel. For a year, each month, Judge Christ T. Seraphim of Milwaukee County Court issued a thirty-day commitment order. Judge Seraphim gave no reason for the continuing orders, except that he found Miss Lessard to be “mentally ill.” Miss Lessard, on her own initiative, retained counsel and filed a class action lawsuit in behalf of herself and “all persons 18 years of age and older who are being held involuntarily pursuant to any emergency, temporary or permanent commitment provision of the Wisconsin involuntary commitment statute” (p. 137). The District Court found the Wisconsin involuntary commitment statue to be constitutionally defective on a number of grounds. It found that in order to deprive a person of their liberty, the state had to demonstrate “a compelling interest in such deprivation.” In other words, the individual must be dangerous to him or her self or others. The court additionally found that Miss Lessard had been deprived of due process in that she had not been allowed sufficient time or opportunity to retain counsel or to prepare a defense before various commitment hearings.

In O’Connor v Donaldson (1975), the Supreme Court was asked to rule on right to treatment. In this case, Mr. Donaldson had been an involuntary patient in a mental hospital in Florida for 15 years. He maintained that the defendants, the superintendent and other employees of the hospital, had maliciously deprived him of his liberty. During this 15 year period, Mr. Donaldson was given only custodial care— there was no therapeutic regime. Although there was no doubt that Donaldson was not dangerous to himself or others, and although he repeatedly asked to be released, O’Connor, who was the Superintendent of the state hospital during most of the 15 year period, refused to release Donaldson. O’Connor’s primary defense was that he had acted in good faith.

The lower court had held in favor of Donaldson, and the Court of Appeals affirmed the lower court’s finding. The Supreme Court, however, sidestepped the right to treatment issue, and instead dealt with the right to be free from involuntary institutionalization. The majority opinion is somewhat confusing, but it is clear that it attacks the basic premise of institutionalization (Burgdorf & Burgdorf, 1975). “In short, a State cannot constitutionally confine without more a non dangerous individual who is capable of surviving safely… (The Court of Appeals) properly concluded that O’Connor violated Donaldson’s constitutional right to freedom” (p. 623). The Supreme Court noted that it had not addressed a case in which a dangerous or violent person was institutionalized against his or her will.

This fell to the Texas Courts. In Addington v State of Texas, the Supreme Court was asked to rule as to what standard of proof is required by the Fourteenth Amendment in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital” (Burgdorf, 1980). In this case, an admittedly dangerous individual with emotional difficulties was hospitalized against his will. He retained counsel and a jury trial was held to determine whether he was mentally ill and, whether he required hospitalization for the welfare of himself and others. The jury found that he was indeed mentally ill and that he required hospitalization. The case was appealed on the grounds that the trial court did not employ the “beyond a reasonable doubt” standard of proof, and that therefore his rights to due process were denied. The Texas Court of Civil Appeals reversed the judgement of the trial court. Next, the Texas Supreme Court reversed the Court of Civil Appeal’s ruling, holding that “preponderance of evidence” satisfied the due process rights in civil commitment cases. The judgement of the jury court was reinstated.

It is, of course, not possible in so brief a paper to adequately address all of the constitutional issues in the right to refuse treatment. However, in light of the above findings, it seems that (2) There is a right to due process in civil commitment proceedings’; (2) “A preponderance of evidence” is sufficient to allow’ institutionalization, and, presumably, treatment to occur; and (3) that rights may be abrogated when the individual is presumed to be dangerous to him or her or others. A definitive case has not, however, been heard by the United States Supreme Court.




Addington v State of Texas, 47 U.S.L.W. 4473 (Apr. 30, 1979).

Burgdorf, M.P.; & Burgdorf, R., Jr. (1975). A history of unequal treatment: The qualifications of handicapped persons as a “suspect class” under the equal protection clause. Santa Clara Lawyer, 15, 855-910.

Burgdorf, R., Jr. (Ed.) (1980). The legal rights of handicapped persons: Cases, materials, and text. Paul H. Brookes, Baltimore.

Lessard v Schmidt, 349. F. Supp. 1078, 1092 (E.D. Wis. 1972).

O’Connor v Donaldson, 454 F.Supp. 211 (N.D. Fla 1978).

Plotkin, R. (1978). Limiting the therapeutic orgy: Mental patients’ right to refuse treatment. Northwestern University Law Review, 72(4), 461-525.

Russell, A.T.; & Tanguay, P.E. (1981). Mental illness and mental retardation: Cause, or coincidence. American Journal of Mental Deficiency, 85(6), 570-574.

Weicker, L. (1984). Defining liberty for handicapped Americans. American Psychologist, 39(5), 518-523.

White, M. D.; & White, C.A. (1981). Involuntarily committed patients’ constitutional right to refuse treatment. American Psychologist, 36(9), 953-962.