National Association for Rights Protection and Advocacy

Fear and Loathing: Forced Treatment in Derogation of Life and Limb: Developing Strategies to Confront Forced Treatment in the Face of Institutional Condescension, Coercion and Expediency

Dennis Feld, J.D. & Arthur Baer, J.D.

I. Background


Often we are faced with court applications from major institutions seeking involuntary commitments and coerced treatment that are based on stereotype and fear, often denominated as emergencies, and shrouded in beneficence. Such "beneficence" may be a veil for institutional self-interest, control, and self-justification. With far more at stake than financial gain or loss, including derogations of personal liberty, petitions which seek forced amputations and confinement (purportedly in the person's "best interest") are litigated with far less due process that simple tort cases, without access to the normal tools of litigation, such as formal discovery, and often, because of indigency, without countervailing experts and resources. And even when we as advocates are successful, gains may be lost when institutions appeal to legal authorities, which (often borne of fear and presumption) give more credence to their institutional prerogatives than individual personal liberty. We will explore strategies to help ensure proceedings held in such circumstances do not become perfunctory exercises of institutional accommodation, but that justice is done.


What can be done to ensure procedure is commensurate with the gravity of the rights at stake, and proceedings are not undertaken for the mere convenience of hospitals and institutional expediency and control, driven by medical and institutional preferences, rather that individual rights.  How to contest "beneficence" when it becomes merely a pretext for control.


II.        Objectives


This workshop will seek to explore these issues, by analyzing recent example cases in which expediency and institutional prerogatives resulted in tragic outcomes - - what happened in these cases and what can be done to prevent injustice in future circumstances. These cases will be used to illustrate the problems involved, and we hope to facilitate discussion on what may be done to ensure that involuntary treatment/commitment comports with both law and justice; that any orders for treatment are the least restrictive necessary, in terms both immediate and long term effect, and take into account persons' liberty interests by respecting their preferences, wishes and autonomous choices.


After an initial presentation using case examples, and possible approaches; the workshop will invite participants to share ideas about possible strategies that may be used to curb summary justice and ensure full, fair adjudication of rights, and fair outcomes that comport with individual liberty interests. Among the areas we will cover are: 


III.       Legal and Advocacy Strategies


A. Challenging the Use of Proceeding that Afford Less than Full and Fair Adjudication.

1. Seeking formal discover in such proceedings.

2. Obtaining independent experts in support of a respondent's liberty interests.

3. Using motion practice to overcome institutional expediency.

4. Using advanced directives and other mechanisms to protect each person's autonomous choices.

B.   Invitation to Share Strategies


C.  Developing Outline of Possible Strategies to Overcome Expedient Institutional Litigation and Protect Individual Liberty.


IV.       Learning Goals:  


A. Developing Effective Legal Strategies - Understanding the Possibilities for Use of New Legal Approaches


B. Developing Effective Advocacy Strategies - Understanding the Possibilities for Use of New Advocacy Strategies


C. Brainstorming to Begin to Develop An Outline of Long Term Strategies to Overcome Expedient Institutional Litigation and Protect Individual Liberty.


Link to brief presenter bios:

Arthur Baer, J.D.

Dennis Feld, J.D.