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22 S. Cal. Rev. L. & Soc. Just. 167 (2012-2013)
Competency to Refuse Medication: Revisiting the Role of Denial of Mental Illness in Capacity Determinations

handle is hein.journals/scws22 and id is 193 raw text is: COMPETENCY TO REFUSE MEDICATION: REVISITING THE ROLE OF DENIAL OF MENTAL ILLNESS IN CAPACITY DETERMINATIONS ELYN R. SAKS* I. INTRODUCTION If a patient refuses medication, the patient's guardian or the state may seek a judicial order authorizing substituted consent to take the medication and determine that the patient lacks the capacity to make his or her own decision.' In some jurisdictions, the patient's denial that he or she has a mental illness-referred to generally as a lack of appreciation of his or her mental illness-serves as the basis of the incompetency finding.2 The patient's mere denial that he or she has a mental illness-the standard some courts use today 3should not be enough in and of itself to serve as the basis of an incompetency finding. In this Article, I will argue that in order to base a competency finding on a patient's lack of appreciation of his or her mental illness, the lack of appreciation should patently distort Orrin B. Evans Professor of Law, Psychology, and Psychiatry and the Behavioral Sciences at the University of Southern California Gould School of Law; Adjunct Professor of Psychiatry, University of California, San Diego, School of Medicine; Faculty, New Center for Psychoanalysis. See, e.g., In re Roe, 421 N.E.2d 40, 51 (Mass. 1981) (requiring a guardian to obtain a court order before forcibly medicating his ward); United States v. Charters, 829 F.2d 479, 482 (4th Cir. 1987), remanded on reh'g, 863 F.2d 302 (4th Cir. 1988) (requiring a competency determination prior to forcibly medicating an individual in custody). Jessica Wilen Berg, Paul S. Appelbaum & Thomas Grisso, Constructing Competence: Formulating Standards of Legal Competence to Make Medical Decisions, 48 RUTGERS L. REV. 345,355-57 (1996). See infra notes 35-39 and accompanying text. 167

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