A Common Law Remedy for Forcible Medication of the Institutionalized Mentally Ill

Jessica D. Litman, University of Michigan Law School


The care and restraint of the mentally ill has traditionally been an activity of state government. Until the 1960' s, institutionalized mental patients were commonly deprived of all civil rights. Over the past twenty years, lawsuits brought on behalf of mental patients, coupled with a growing public awareness of hospital conditions, have led to the restoration of a number of legal rights to the institutionalized mentally ill. Among the most controversial is the right to refuse treatment, including treatment with antipsychotic medication. Antipsychotic medication, the most common form of treatment prescribed in mental hospitals, has serious and potentially permanent side effects. Because the institutionalized mentally ill have traditionally been excluded from the common law protections afforded by the doctrines of informed consent and substituted judgment, they have until recently been legally unable to refuse anti psychotic drug treatment.