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Law Quadrangle (formerly Law Quad Notes)

Abstract

In July 1973, a three-judge Circuit Corut for Wayne County Mich., ruled that experimental psychosurgery could not be performed on any person involuntarily detained in state mental institutions, even if consent were given to the experiment (Kaimowitz v. Department of Mental Health (1973)). This was the first court case to consider the propriety of psychosurgery. It received considerable national attention and is a striking precedent regarding both psychosurgery and, more generally, medical experimentation with captive populations.

The litigation was filed after one subject had been selected by experimenters at the Layfayette Clinic in Detroit, a unit of the State Department of Mental Health affiliated with the Wayne State Universtiy Medical School. Because it was a taxpayer's suit challenging the expenditure of state funds, and had not been filed at the direction of the experimental subject, the Court determined that the subject needed his own counsel and appointed Profs. Robert A. Burt and Francis A. Allen of the University of Michigan Law School as principal counsel and co-counsel respectively. Prof. Andrew S. Watson of the Law School and the U-M Department of Psychiatry examined the subject and testified at the trial.

The following is a part of the brief submitted by Burt and Allen, arguing that state-compelled psychosurgery would be cruel and unusual punishmentunder the Eighth Amendment and that state compulsion would inevitably taint any apparent consent for psychosurgery of involuntarily detained mental patients. The Court agreed with the result sought by this brief, though its opinion rested on First Amendment grounds related to the "thought control" implications of psychosurgery.

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