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Response or Comment

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I originally intended to write a column on tort liability and research ethics, and I still plan to do so. But this column is a cri de coeur as I finish another semester teaching law and bioethics. This year, I asked with growing frequency, urgency, and exasperation, "Must law's reverence for autonomy squeeze out the impulse to kindness? Where is the beneficence in bioethics?" These questions assail me every term. Why? Consider Steele v. Hamilton County Community Mental Health Board. Mr. Steele was involuntarily "hospitalized after his family reported that he was 'seeing things and trying to fight imaginary foes.'" Concluding that Mr. Steele was paranoid schizophrenic, the hospital sought judicial permission to give Mr. Steele antipsychotic drugs without his "informed consent." Eventually the case reached the Ohio Supreme Court. It began its analysis by intoning a hymn to "the right to refuse medical treatment," which it called "a fundamental right in our country, where personal security, bodily integrity, and autonomy are cherished liberties." The court concluded that the state could not administer the drugs unless it showed by "clear and convincing evidence" that (1) a patient "lacks the capacity to give or withhold informed consent," (2) "the benefits of the antipsychotic medication outweigh the side effects," and (3) "there is no less intrusive treatment . . . as effective in treating the illness." Piling Ossa on Pelion, the court imposed elaborate procedural requirements for issuing and maintaining such a judicial order.


Reprinted with the permission of the Hastings Center Report and Wiley-Blackwell.