1. Who Qualifies for Rights? Sherrie Brown LSJ 332/CHID 332 Fall 2009

2. To help us think about the question...  Kristen Johnson case involuntary sterilization  Civil Commitment Theory  Joyce Brown case involuntary commitment  Sesha Kittay case limitations of “justice”

3. Kristen Johnson Case  Issue: Should Kristen’s guardian (Vera) have the right to decide that sterilization is an appropriate medical intervention for the young woman? Alternatively…should Kristen have the right to make the decision without consideration of the guardian’s opinion?  Task: Read the case study and jot down 1) the reasons Vera should be able to make that decision on behalf of Kristen and 2) the reasons she should not.  Discuss: Vera’s position and Kristen’s arguments.

4. Legal Justification for Civil Commitment  Parens Patriae Traditional role of state as “sovereign and guardian of persons under legal disability.” Used as justification for involuntary institutionalization of people with mental disabilities in mid-19 th Century USA. Theory is that state has obligation to protect interests of those who cannot do so for themselves—requires finding of incapacity which results in “legal disability.” Typically used to commit people who are considered danger to themselves.

5. Continued…  Police Power Purpose is to protect society from potential harm—e.g., criminal laws and public health codes Justification for commitment of people with mental illness who are considered danger to others. Unlike criminal defendants, people facing police power commitments can be confined in institutional settings without proof that they violated criminal law.

6. Constitutional Theories Challenging Institutionalization  14th Amendment All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.  8th Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

7. O’Connor v. Donaldson (U.S. Supreme Court 1975)  FACTS: Mr. Donaldson civilly committed in 1957 and institutionalized for 15 years. His father initiated the commitment because his son “suffering from delusions.” Diagnosis was paranoid schizophrenia and commitment for “care, maintenance and treatment.” No evidence of danger to self or others and employed prior to commitment.  ISSUE: Was Donaldson’s continued commitment a violation of his constitutional right to liberty (14 th Amendment right)?  HOLDING: Yes.  REASONING/RATIONALE: Involuntary commitment is deprivation of liberty which state cannot do without due process of law. Must be justified on basis of legitimate state interest and confinement must cease when those reasons no longer exist. Basis of confinement violated very fundamentals of due process when no treatment was provided.

8. Joyce Brown Case Mayor Koch justified the commitment of Joyce Brown in the “name of both human rights and human decency,” according to Judith Failer. A member of the HHC also defended the new interpretation of commitment standards as “an effort to protect the rights of the mentally ill homeless. ‘For the first time there is a recognition of the patients’ right to treatment, and their freedom from the prison of mental illness, rather than the freedom to die in the streets.’”  What human rights and whose rights do you think Koch is considering and are they the same rights that the member of the HHC was referring to in the above quote?

9. Questions continued … Joyce Brown was successful in convincing the lower court judge that the city of NY had infringed on her rights by committing her against her will.  What testimony convinced the judge that NYC had erred and what specific right did he say had been denied Ms. Brown?  Do you agree with his reasoning (based on what you know of the trial) and why/why not?

10. And… The primary issue in the case study was the power of the state to involuntarily commit Joyce Brown. However, another issue raised was the power of the state to forcibly medicate her against her will.  Take the position that the involuntary commitment of Ms. Brown was appropriate. And, assume that “therapy for schizophrenics is ineffective unless accompanied by chemical treatment.” Do you also believe that the state has the power to forcibly medicate her?  Change the facts in the case as follows: Joyce Brown is charged with a crime and is declared to be incompetent to stand trial. However, psychiatrists state that she would be competent if she took her medication and the state wants to force her to do so. Do you believe the state should have the power in a criminal case?

11. And Finally…  Change the facts again—Joyce Brown was charged and found guilty of committing a murder. She was also diagnosed with schizophrenia. Is she responsible for her behavior?  What is society’s (justice system) response to this criminal behavior given her mental illness? How does society respond to children who commit murder?  What should society’s response to this criminal behavior be? From the social model perspective?

12. Sesha Kittay Case – as articulated by her mother  Kittay thinks that continuing the “benevolence and charity” bases for caring for dependent individuals is insufficient. Why? Do you agree or not?  Kittay introduces the concept of “doulia” to “reconfigure justice.” How does the concept of “doulia” reconfigure justice?  Is there a way to reconcile the needs of someone as inevitably dependent as Sesha with the concerns and analyses of those who have argued that both disability and the apparent dependency of disabled people are socially constructed?  Why does Kittay think that the “inclusion of people with mental retardation may well be liberalism’s limit case?”