LEGAL REGULATION OF BEHAVIOR MODIFICATION (FROM JUSTICE AND CORRECTIONS, 1978, BY NORMAN JOHNSTON AND LEONARD D SAVITZ - SEE NCJ-47922)

• NCJ Number: 47951
• Author(s): P R FRIEDMAN
• Date Published: 1978
• Length: 15 pages
• Corporate Author: John Wiley and Sons, Inc.
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: REPRINTED FROM ARIZONA LAW REVIEW, V 17, N 1 (1975), P 75-94

Annotation

ASPECTS OF COMPETENCE, VOLUNTEERISM, AND CONSENT ARE DISCUSSED REGARDING THE USE OF BEHAVIOR MODIFICATION TECHNIQUES ON PRISONERS AND MENTAL PATIENTS.

Abstract

THE GOAL OF CHOOSING A STANDARD OF COMPETENCY IS, ON THE ONE HAND, TO ENHANCE SELF-AUTONOMY AND GUARD AGAINST PATERNALISM AND, ON THE OTHER, TO PROVIDE FOR VICARIOUS JUDGMENT IN THE BEST INTEREST OF PATIENTS WHEN NECESSARY. HOWEVER, COMPETENCY CAN BE DEFINED IN VARIOUS WAYS: AS THE CAPACITY TO REACH A DECISION BASED ON RATIONAL REASONS; AS REACHING A REASONABLE RESULT; OR AS THE COMPETENCY TO MAKE A DECISION. IN DETERMINING WHETHER CONSENT IN THE INSTITUTIONAL CONTEXT IS TRULY VOLUNTARY AND COMPETENT, THE ANALYTICAL FRAMEWORK EMPLOYED BY THE COURT DOES NOT REGARD CONSENT AS AN ALL OR NOTHING CONCEPT. IN DECIDING WHETHER THERE HAS BEEN VOLUNTARY CONSENT IN A PARTICULAR FACTUAL SETTING, A NUMBER OF FACTORS MUST BE BALANCED. CONSENT MUST BE MORE CAREFULLY SCRUTINIZED IF THE RIGHT TO BE WAIVED IS CONSTITUTIONALLY PROTECTED, IF THE PROCEDURE TO BE EMPLOYED IS DANGEROUS, OR IF THE NATURE OF THE SETTING IN WHICH CONSENT IS TO BE GIVEN UNDERMINDS CAPACITY AND VOLUNTARINESS. THE FUNCTIONAL EQUIVALENT OF CONSENT BY A COMPETENT PATIENT IS THE NOTION THAT THE TREATMENT MUST BE IN THE BEST INTEREST OF THE PATIENT. THE IDEA THAT A PROCEDURE IS IN THE CLIENT'S BEST INTEREST WOULD REQUIRE THAT THE BENEFITS OF THE PROCEDURE CLEARLY OUTWEIGH BOTH THE KNOWN HARMS AND THE POSSIBLE RISKS AND SIDE EFFECTS. TRADITIONALLY, MINORS HAVE BEEN PRESUMED TO BE INCOMPETENT, AND PARENTS HAVE GIVEN VICARIOUS CONSENT ON THEIR BEHALF. RECENTLY, HOWEVER, THE ASSUMPTION THAT PARENTS ALWAYS EFFECTIVELY REPRESENT THE BEST INTERESTS OF THEIR CHILDREN HAS BEEN CALLED INTO QUESTION. AT LEAST ONE FEDERAL COURT HAS EXTENDED THE QUESTIONABILITY OF PARENTAL CONSENT FROM THE CIVIL COMMITMENT PROCESS TO THE INTRUSIVE SURGICAL PROCEDURE OF STERILIZATION. NOT EVERY BEHAVIORAL PROCEDURE IS SUFFICIENTLY INTRUSIVE TO REQUIRE WAIVER BY COMPETENT PATIENTS OR A BEST INTEREST DETERMINATION FOR INCOMPETENT PATIENTS. WHERE SUCH A DETERMINATION IS REQUIRED, HOWEVER, THERE EXISTS A NEED FOR CRITERIA DETERMINING INTRUSIVENESS AND A CONSENSUS ABOUT A HIERARCHY OF ALTERNATIVE BEHAVIORAL PROCEDURES BASED UPON THEIR INTRUSIVENESS. PROCEDURAL LIMITATIONS ON IMPOSING TREATMENT MAY ALSO BE GROUNDED IN DUE PROCESS PROVISIONS, ALTHOUGH THE DUE PROCESS RIGHT OF PRISONERS AND MENTAL PATIENTS HAVE BEEN THE SUBJECT OF ACUTE CONTROVERSY. TABULAR DATA AND NOTES ARE INCLUDED. (KBL)