When Coercion Lacks Care: Competency to Make Medical Treatment Decisions and Parens Patriae Civil Commitments

The subject of this Article is people who have been civilly committed under a state's parens patriae authority to care for those who are unable to care for themselves. These are people who, because of a mental illness, are a danger to themselves. Even after they have been determined to be so disabled by their mental illness that they cannot care for themselves, many are nonetheless found to be competent to refuse medical treatment. Competency to make medical treatment decisions generally requires only a capacity to understand a proposed treatment, not an actual or rational understanding of that treatment.

This Article proposes that in cases of parens patriae civil commitments, an actual or rational understanding should be required. A test of competency that requires actual or rational understanding of a proposed treatment is needed in these cases given the lack of insight commonly experienced by people with psychotic disorders, the potential of psychotic symptoms to interfere with rational decision-making, and the immense harms-both immediate and long-term-that can result from untreated psychotic symptoms.