The Behavior Analyst 1991,14,197-206 No. 2 (Fall) Aversives, Fundamental Rights and The Courts Robert A. Sherman, Esquire Gaffin & Krattenmaker, P.C. Boston, Massachusetts

The controversy over the use of aver- to choose from among available treat- sive stimuli with developmentally dis- ment procedures, but also the right ofan abled individuals has not been limited to individual to refuse treatment, even one academic debate within professional so- that may be highly beneficial (In re Quin- cieties. Instead, because it involves a clash lan, 1976). The origin for this right to between public policy and individual refuse treatment is contained in the med- rights, it inevitably has entangled the ical model-specifically, the law of in- courts. Not surprisingly, the use of aver- formed consent. sive procedures with developmentally The doctrine of informed consent is disabled individuals has sparked incon- well presented in a book entitled Legal sistentjudicial decisions, especially when Rights andMental Health Care, by Herr, the issue is characterized as a question of Arons, and Wallace (1983). Essentially, treatment versus corporal punishment. the law states that a patient must consent This paper examines how the courts have to any treatment, psychological or med- dealt with the aversives controversy and ical, which can be administered lawfully. concludes that the courtroom may not be There are three critical elements to a find- the most appropriate, but for now is an ing of informed consent: (a) It must be acceptable forum for vindicating a dis- preceded by the disclosure of adequate abled individual's right to effective treat- information, (b) it must be voluntarily ment. given, and (c) the consenting individual must be competent. The disclosure re- quirement insures that patients are given INCOMPETENT INDIVIDUALS sufficient information on which to base AND FUNDAMENTAL RIGHTS their decision. All material risks and al- Prior to examining the controversy, it ternatives pertaining to the proposed is important to discuss the constitutional treatment must be disclosed. Only upon rights possessed by the developmentally full disclosure can a patient's consent be disabled and how those rights are pro- knowing and voluntary. Importantly, the tected. law does not require a competent per- The fundamental freedoms guaranteed son's decisions to be wise. In ordinary to all citizens ofthe United States by the life for example, people make many de- Bill of Rights apply as well to develop- cisions which may not be in their best mentally disabled citizens. Mentally ill interests. We may overeat, smoke, and and developmentally disabled individu- gamble away money (Herr et al., 1983). als do not lose their constitutional rights Society's respect for a person's right to by reason of their handicapping condi- be an individual allows such choices to tion (Youngberg v. Romeo, 1982). Recip- be made. Our society is heterogeneous, ients of mental health care are not only comprised of individuals with different entitled to be treated as equal citizens, likes, dislikes, and values. The Bill of they are also entitled to the same freedom Rights was specifically drafted to protect of choice attendant to that citizenship individual autonomy and to ensure that (Superintendent of Belchertown v. Sai- minority values and beliefs are not tram- kewicz, 1977). With respect to treatment pled by the will of the majority. John decisions, the law recognizes that free- Stuart Mill (1952) framed the concept dom ofchoice includes not only the right thusly: 197 198 ROBERT A. SHERMAN

[T]he only purpose for which power can be rightly tal right that falls into this select cat- exercised over any member of a civilized com- egory is the right to be free from bodily munity against his will, is to prevent harm to others. His own good, either physical or moral is not a invasion. This right is of particular im- sufficient warrant. He cannot rightfully be com- portance here since it is implicated when- pelled to do or forebear because it will be better for ever aversive procedures are used. The him to do so, because it will make him happier, right to be free from bodily invasion is because, in the opinion of others, to do so would an outgrowth ofthe right ofprivacy and be wise, or even right. (p. 271) right of personal autonomy recognized The law, therefore, does not prevent by the United States Supreme Court in competent people from making personal cases such as Griswold v. Connecticut decisions which others may consider ir- (1965) (striking down laws prohibiting responsible. In the medical area, a person distribution ofbirth control devices) and has the right to refuse amputation of a Roe v. Wade (1973) (right ofprivacy per- gangrenous leg, even though death is the mits a women to choose to terminate likely result. The law's requirement is not pregnancy). Both ofthese cases stand for that the decision necessarily serve the pa- the proposition that an individual has a tient's best interests but only that the per- constitutionally protected right to be left son's ability to make that decision not be alone as well as a right to control what so impaired that it threatens his or her happens to his or her body. As long ago safety or welfare. This concept, known as as 1891, the United States Supreme court competency, is a measure ofone's ability stated in Union Pacific Railway v. Bots- to make an informed decision about one's ford: own protection and welfare. No right is held more sacred or more closely guard- To be treated as equal citizens, devel- ed, by the common law, than the right of every opmentally disabled and mentally ill in- individual to the possession and control ofhis own dividuals also must decide what is best person, free from all restraint or interference ofoth- for their own protection and welfare. As ers unless by clear and unquestionable authority of platitudes, these principles are easily un- law. (p. 251) derstood. A difficult problem in their ap- The fundamental right to be free from plication arises however when the de- bodily invasion in conjunction with the velopmentally disabled individual is also right to refuse treatment was the corner- incompetent. By definition, that person stone for judicial decisions limiting a is unable to exercise the same freedom clinician's authority to administer anti- ofchoice competent citizens can. The de- psychotic medication to incompetent pa- cision-making authority must be entrust- tients (Rogers v. Okin, 1979). ed to a surrogate such as a guardian or In treatment cases, where the rights in- conservator. But the power of the sur- volved are so fundamental they demand rogate is not plenary. Decisions which special protection, the law requires that affect a category of rights which are so the treatment procedure also be carefully fundamental and so personal are afforded scrutinized. When the procedure is special protection when incompetent in- deemed "extraordinary," that is, where dividuals are involved. The most well- it poses significant risks to the patient, known of the fundamental rights in this has significant side effects, or is highly special category is the "right to life." This intrusive, most states have stripped the right, the most precious of all, has been surrogate of the authority to consent on the center of controversy in cases in- behalf of the ward (Brophy v. New En- volving the removal of individuals from glandSinai Hospital, Inc., 1986). In some life support systems. Another such right states, that power can be exercised by a is that of procreation. A woman's deci- clinical team (In re Quinlan, 1976). In sion whether or not to bear children is so the vast majority of jurisdictions how- intensely personal and private that spe- ever, the ability to consent is entrusted cial protections must be in place when to the court alone (Superintendent of the decision is exercised on behalf of an Belchertown v. Saikewicz, 1977). Accord- incompetent woman. A third fundamen- ingly, a guardian has no authority to sub- AVERSIVES, FUNDAMENTAL RIGHTS AND THE COURTS 199 mit the ward to involuntary sterilization, ward's family, and the treatment facility. to terminate life support, or to give con- If indigent, the ward is entitled to court- sent for the administration of anti-psy- appointed counsel. Typically, it is the chotic medication. A guardian's consent function of the ward's attorney to ad- in those circumstances is meaningless. vocate against any proposed treatment The underlying rationale is that the plan. In theory, a truly adversarial pro- guardian, no matter how well inten- cess, with the right ofcross-examination tioned, may tend to impose his or her preserved, allows the court to make the own views upon the ward or to make a best determination ofa ward's substitut- decision based on what the guardian feels ed judgment and to protect the incom- is in the best interest of the ward. If so, petent ward's individual rights. the guardian would be utilizing an in- The substitutedjudgment model is de- correct legal standard by not giving prop- signed to scrupulously guard against er weight to the ward's individual pref- reckless infringement ofindividual rights. erences and values as well as to the ward's While courts have used the term "ex- inalienable right to refuse a plan even if traordinary" to describe the general cat- designed to promote his or her best in- egory oftreatment procedures which are terest. Indeed, the magnitude of the de- subject to more intensive scrutiny, clear- cisions involved-life, sterility, individ- ly not all procedures which fit within the ual personality-demand that extreme definition receive such intensive review. care be taken and the possibility of mis- While the administration of anti-psy- take be eliminated. Where an "extraor- chotic medication is "extraordinary" re- dinary" treatment procedure would have quiring substituted judgment because of the effect ofinfringing upon fundamental the intrusiveness and risk of serious side personal rights such as the right to be free effects, substituted judgment has never from bodily invasion, the law in most been required for routine surgery despite states provides that permission can only similar characteristics. The explanation be granted by a court through a process seems to lie in the degree to which the known as substituted judgment (Rogers procedure has become "accepted" by so- v. Okin, 1979). The court's role in these ciety. Ever since the days when doctors cases is not to determine what is in the used to leech patients to rid them ofdis- best interest of the ward, but to attempt ease, society has accepted surgical inter- to substitute its judgment for that of the vention as a common, established pro- ward. Even ifthe ward'sjudgment would cedure for providing necessary medical not have been in his or her best interest, treatment. Although on occasion partic- it is the obligation of the court to give ular surgical procedures have been crit- those wishes effect. icized as overused and unnecessary, there By transferring decision-making au- is no raging debate within the medical thority in this area to the courts, the law profession as to whether surgery in gen- ensures that the ward's individual rights eral is a professionally responsible meth- are properly protected. Prior to making od for treating patients. Likewise, no one its decision on a treatment procedure, the would suggest that substituted judgment court typically is required to take into be obtained every time an infected tooth account the following factors (Superin- needs to be pulled from an incompetent tendent of Belchertown v. Saikewicz, patient's mouth. There again the proce- 1977): (a) the expressed preferences of dure has achieved acceptance as routine. the ward, ifany; (b) the prognosis for the The same cannot be said for administra- ward with treatment; (c) the prognosis for tion of anti-psychotic medication, ster- the ward without treatment; (d) side ef- ilization, or for that matter aversives. fects of the proposed treatment; (e) fam- Each ofthese procedures historically has ilybackground andguardian's wishes; and generated widespread criticism. In look- (f) the ward's religious beliefs. ing at the nature ofthe aversives contro- As part ofthe requiredjudicial process, versy, it is necessary first to examine its separate attorneys represent the ward, the historical context. 200 ROBERT A. SHERMAN SOCIETY'S PROTECTIVE tion (4502), the rights ofthe disabled are INSTINCTS AND THE set forth: USE OF AVERSIVES (a) A right to treatment and habilita- tion services. Treatment and habil- Beginning in the 1960's, the civil rights itation services should foster the de- movement sought to eliminate the re- velopmental potential ofthe person. pression of minorities and the politically Such services shall protect the per- powerless within society. Advocates on sonal liberty of the individual who behalfofminorities and the handicapped shall be provided with the least re- fought vigorously to eliminate barriers strictive conditions necessary to which had the effect of preventing those achieve the purposes of treatment. groups from achieving equal status. The (b) A right to dignity, privacy, and hu- developmental disabilities civil rights mane care. movement of the 1960's and 1970's was (c) A right to participate in an appro- intended to remedy the historical abuse priate program ofpublicly support- of the handicapped. Initially, the focus ed education, regardless ofdegree of was on institutionalized care. Fictional- handicap. ized accounts such as One Flew Over the (d) A right to prompt medical care and Cuckoo's Nest dramatized the plight of treatment. the mentally ill, while news exposes and (e) A right to religious freedom and documentaries such as Willowbrook, A practice. Report On How It Is And Why It Doesn't (f) A right to social interaction and par- Have To Be That Way and Titicut Follies ticipation in community activities. underscored the need for reform. Ad- (g) A right to physical exercise and rec- vocacy organizations proposed wide- reational opportunities. spread changes, and courts and state leg- (h) A right to be free from harm, in- islatures were swept up in the movement. cluding unnecessary physical re- In a series of cases culminating in the straint, or isolation, excessive med- United States Supreme Court decision in ication, abuse, or neglect. Youngberg v. Romeo (1982), a constitu- (i) A right to be free from hazardous tionally based right to minimally ade- procedures. quate treatment was established for the mentally ill and developmentally dis- The focus ofprotective legislation such abled. as the Lanterman Act was to prevent a Politicians too, reluctant to be labeled recurrence of past abuses, not to deny as insensitive to the needs of the handi- people with disabilities access to legiti- capped, quickly enacted a series of pro- mate and accepted treatment procedures. tective measures- Indeed, many state leg- From that viewpoint, the aversives con- islatures, encouraged by the federal troversy should not generate the contro- government, promulgated so-called bills versy it has. Indeed, when competent in- of rights for the developmentally dis- dividuals are involved, the issue of abled. This legislation was devised to aversives hardly raises an eyebrow. Com- codify and expand the rights possessed petent individuals certainly may consent, by the disabled in order to ensure that for instance, to a treatment regimen in- past abuse would not be repeated. An volving Antabuse, a drug which induces example of such legislation is the Lan- vomiting, in combating alcoholism. Oth- terman Developmental Disabilities Ser- ers, in order to attempt to stop smoking vice Act passed in California in 1977. In are directed to wear a rubber band around the first section (4501) of the Act, the their wrist which they can "flick" when State of California acknowledges its "re- the urge arises. The association of the sponsibility for its developmentally dis- momentary pain with the urge to smoke abled citizens and its obligations to them is intended to eliminate the habit alto- which it must discharge." In the next sec- gether. It should follow, therefore, that if AVERSIVES, FUNDAMENTAL RIGHTS AND THE COURTS 201 competent people can consent to aver- all, just that. Punishment means corporal sive procedures, then incompetent peo- punishment. It is Cuckoo's Nest, Willow- ple, as equal citizens, have those same brook, and Titicut Follies all over again. rights. It is what the developmental disabilities Yet the chasm between competence civil rights movement of the 1960's and and incompetence is not so easily bridged. 1970's was designed to remedy. It is that The respect we as a society have for self- movement's very raison d'etre. Punish- determination becomes overridden by ment is, as everyone "knows," tanta- our protective instincts when the issue mount to abuse. involves people who are unable to care A recent article which appeared in the for themselves. When a person is incom- U.S. News & World Report (1989), puts petent, less leeway is given in determin- these misconceptions in sharper focus. ing what is legitimate and accepted. What Appearing under the headline "Punish- we have accepted as legitimate treatment ing the Retarded," which, it should be when competent individuals are in- noted, uses the word "punish" in its lay volved, we condemn when the same context, the article stated: treatment is in- proposed for use with an Parents and guardians ofseverely retarded children competent individual. The explanation and adults who repeatedly bang their heads or oth- seems to lie in the unwavering respect we erwise harm themselves may soon be asked to let have for a competent individual's free- doctors and caretakers "punish" patients to alter dom ofchoice and an equally strong but their behavior. A recent panel ofexperts convened by the National Institutes ofHealth recommended erroneous belief that it is the obligation "aversive" therapy, which could include pinches, ofsociety to shield incompetent individ- mild shocks and whiffs of ammonia, so long as a uals from treatments which the majority guardian's consent is given and more-positive ther- would not choose for themselves. The apy such as stroking and gentle scolding is used as harsh reality is that aversives have not well. Many schools and institutions already practice aversive therapy, but it could become even more been accepted by the public at large as widespread now that the NIH panel has given it the legitimate treatment procedures but in- O.K. stead are viewed as a form ofabuse when Nearly every major association that represents administered to incompetent individu- the retarded disagrees with the panel. "Construc- tive, not destructive, methods arejust as effective," als. One reason for this perception stems says Alan Abeson, executive director of the Asso- from the poorjob the field ofpsychology ciation for Retarded Citizens (ARC). (p. 71) in general, and behavior analysis in par- ticular, has done in legitimizing by sci- As this article demonstrates, wide- entific method the use of those proce- spread condemnation ofthe use of aver- dures. Until the field ofbehavior analysis sive procedures exists among organiza- can speak with a unified voice regarding tions which advocate on behalf of the the acceptability of aversive procedures, developmentally disabled. The criticism it cannot expect courts, legislatures, and is not limited to advocates, however. the general public to provide that legiti- Professionals such as LaVigna and Don- macy by default. To the non-profession- nellan (1986) provide formidable sup- al, the use of aversives seems to be a port for the anti-aversive movement. vestige from the dark ages. Aversives are These advocates have generally been suc- not seen as a form of treatment but as a cessful in convincing the general public form of corporal punishment. Indeed, that positive procedures are "effective" opponents of the use of aversive proce- and aversives are therefore unnecessary, dures do not have to go very far in order cruel, and barbaric. Part of the criticism to find support for this view. They need stems from a perceived lack of effective simply start in the field ofbehavior anal- controls on and standards for the imple- ysis. The name that behavior analysts use mentation of aversive procedures. The for aversive techniques -punishment- fear exists that these procedures are em- feeds into that belief. How can punish- ployed wantonly and callously by clini- ment be treatment? Punishment is, after cians when less intrusive procedures 202 ROBERT A. SHERMAN would be just as effective. The failure of produced by the incipient movements of the pun- behavior analysts as a professional body ished act are made contiguous with punishment, they take on some ofthe aversive properties ofthe to effectively counter the anti-aversives punishment itself. The next time the organism be- campaign has led policymakers astray. gins to act, particularly in the same environment, The NIH panel itselfis an important step it produces stimuli which through classical condi- toward the professional legitimacy need- tioning have become aversive. It is these aversive ed but it is only a beginning. So long as stimuli which then prevent the act from occurring. the field is splintered on the issue, poli- (p. 423) cymakers will continue to react to public When the issue ofaversives has reached sentiment and legislatively limit effective the courts, it has generally involved two treatment options under the guise ofpro- types of cases -consent cases and right tecting the disabled. It is for that reason to treatment cases. The consent cases fol- substitutedjudgment proceedings should low a straightforward analysis. In most be used as the one currently available of those cases, aversives have been ad- means for vindicating treatment rights. ministered without obtaining proper consent. Many of these cases involve AVERSIVES IN THE COURTS prisoners' rights. There, the state has at- tempted to forcibly change a prisoner's The state of the aversives controversy behavior by administering aversives can be summed up as follows. Public against his or her will. In cases such as opinion generally condemns aversive Mackey v. Procunier (1973), which in- procedures while most responsible cli- volved the administration of a breath nicians and guardians believe that the stopping fright drug to prisoners, courts techniques are not only legitimate but uniformly have held that the absence of necessary in certain cases to control se- consent resulted in a violation ofthe con- rious self-destructive behaviors. Soci- stitutional prohibition against cruel and ety's legitimate interest in protecting the unusual punishment. This past term the developmentally disabled is pitted against United States Supreme Court decided the individual's right of access to treat- Washington v. Harper (1990), a case with ments which may help improve his or important ramifications in this area of her condition. Inevitably, this is the kind the law. In that case, the state attempted of dispute that is resolved in the courts. to administer anti-psychotic medication While courts can be engines of social against the will of a prisoner who had change, they have no mandate to for- never been declared incompetent. The mulate public policy. Instead, it is the state argued that Harper's behavior is un- function of a court to resolve cases or der control only when he is on the med- controversies by applying the law to spe- ication and that it has a compelling in- cific, unique fact patterns. It is important terest in maintaining order in its prisons to note, however, that the vast majority as well as an obligation to ensure other ofcases that have dealt with aversives do prisoners' safety. Harper argued on the not attempt to define the term. Since other hand that as a competent individ- many cases involve procedures such as ual, he has the right to refuse the medi- water sprays, slaps, facial screening, and cation. The Supreme Court held that in mechanical restraint, judges apparently the prison context only, so long as the have adopted an "I know it when I see state's proposed action was reasonably it" approach. The only appellate opinion related to a legitimate penal objective- defining aversives which is occasionally in that case prison security-it could also cited by other courts, is Knecht v. overcome fundamental individual con- Gillman (1973). In Knecht, the court re- stitutional rights. Harper therefore estab- ferred to aversive therapy as being based lished a boundary line for an individual's on Pavlovian conditioning. Citing Singer right to refuse treatment and articulated (1970), the Court further explained: a different standard for criminal as op- Pavlovian conditioning is based on the theory that posed to civil commitment cases. when environmental stimuli or the kinetic stimuli The other subset of "consent" cases AVERSIVES, FUNDAMENTAL RIGHTS AND THE COURTS 203 usually arises either where the clinician volving the infliction ofcorporal punish- has administered aversive procedures ment. In appealing its license revocation, without the consent of the guardian or Kate' School challenged the regulations where the treatment plan requires only on the basis that its use ofaversives such the consent of the guardian and not ap- as hand and calfslapping, restraining head proval by the court. In Price v. Sheppard movement by holding the chin or hair, (1976) for instance, electric shock treat- cool showers, and withdrawal of food ments were being administered to an in- was not punishment but treatment. The voluntarily committed incompetent mi- Court of Appeals disagreed, calling the nor against the wishes of the guardian. school's argument a theoretical distinc- The court held that imposition of an in- tion and a transparent attempt to relabel trusive and extraordinary treatment such prohibited conduct with euphemisms. as shock was not to be left to the sole Remarkedly absent in the record is the discretion of medical and clinical per- necessary expert clinical testimony to sonnel. However, the fact that the guard- support the position that the recom- ian opposed the procedures also was not mended treatment plan including aver- dispositive. The court proceeded to fol- sives was professionally responsible. low the traditional substituted judgment Based on this glaring failure ofproof, the model by requiring the treating institu- court apparently viewed the plan as an tion to petition the court for consent to ad hoc experimental program which the administer the treatment. In making the State of California had authority to reg- determination, the court balanced the ulate. The court ruled that the state has need for the treatment against the intru- a legitimate right to regulate intrusive and siveness based on the following factors: possibly hazardous forms of treatment (a) the extent and duration ofchanges in for the mentally disordered. Conversely, behavior patterns and mental activity af- the court also ruled that nothing gives a fected by the treatment, (b) the risks and person the right to receive aversive ther- side effects, (c) the experimental nature apies. of the treatment, (d) acceptance by the TheKate'School case is an unfortunate professional community, (e) the extent of example of poor legal advocacy leading the intrusion and pain associated with it, to a poor judicial decision. The court's and (f) the patient's ability to determine premise-that aversives are not accepted whether the treatment is desirable and/ forms oftreatment-led to an inevitable or the wishes of the guardian. result. If indeed the court's premise were A much more troublesome series of correct, the decision would be totally de- cases are those involving right to treat- fensible. No one has a right to receive ment issues. Often these cases arise when treatment which does not meet accepted aversives are clinically recommended but professional standards. For example, the either state law specifically bans the use, government has every right to refuse can- or administrative agencies prohibit the cer patients access to Laetrile since there treatment pursuant to corporal punish- is no competent medical evidence that ment proscriptions. These cases have all the drug cures cancer. On the other hand, turned on the narrow issue of whether a disabled person cannot be deprived of courts believe aversives to be a profes- equal access to accepted forms of treat- sionally accepted form of treatment. In ment. In Lelsz v. Kavanaugh (1987), a cases where the court has answered the federal court in Texas was presented with question affirmatively, it has been willing a variation of the Kate' School facts. to authorize aversive procedures within There, aversives were used with clients strict guidelines. at a state school but not in a profession- The strongest appellate opinion against ally responsible manner. Expert testi- the use of aversives is Kate' School v. mony revealed that there was no evi- Department of Health (1979). There, dence of the effectiveness of the California regulations banned the use of procedures and no relationship betweeen behavior modification techniques in- the choice ofthe procedures and the anal- 204 ROBERT A. SHERMAN ysis ofthe cause ofthe clients' problems. cerebral palsy who had engaged in self- The court, therefore, ruled that use of injurious behavior since he was two years aversives under these circumstances old. His behavioral program required crossed the line from treatment to cor- wearing a helmet and face guard and con- poral punishment. stant restraint. An electrical shock device A more constructive example of cor- known as SIBIS (Self-Injurious Behavior rectjudicial analysis ofaversives in a right Inhibiting System) had proven successful to treatment context is the case of Be- during clinical trials in greatly reducing havior Research Institute ("BRI"), et al. his and others' self-injurious behavior v. Leonard (1986). There, a Massachu- (Linscheid, Iwata, Ricketts, Williams, & setts administrative agency attempted to Griffin, 1990). The Michigan school dis- close a school which offered a regimen of trict, however, refused to permit SIBIS aversive procedures to autistic individ- in the public schools on the grounds that uals on the grounds that the students were its use would violate a local policy against being abused. The BRI case was the first use of contingent electric shock as well in which a court was asked to apply a as a Michigan state statute prohibiting strict substitutedjudgment analysis in an corporal punishment. The statute de- aversives case not involving electric fined any procedure which inflicted pain shock. Moreover, the mistakes of the as constituting corporal punishment. As Kate' School case were not replicated. an alternative, the school proposed con- Counsel for the school seeking to admin- tinuing with the prior program which, in ister the treatment, and the parents who at least one internal memorandum, a supported it, presented a succession of school district official admitted would not nationally recognized experts in the field be effective. of behavior modification who testified After a lengthy administrative hearing, that the particular procedures at issue the hearing officer allowed the school dis- were safe, effective, and professionally trict one year to improve the boy's con- accepted. Although the Massachusetts dition using a new non-aversive pro- agency opposed the use of the proce- gram. Ifthe district were not successful- dures, it produced no witnesses to con- which was defined as a 90% reduction in tradict the expert testimony. The trial self-injurious behavior and a fading of judge ultimately determined, after apply- the use of restraints-the hearing officer ing the substitutedjudgment criteria, that would entertain a request for SIBIS. With use of the aversive procedures was the respect to Michigan law, the hearing of- least restrictive effective means to control ficer ruled that neither the corporal pun- the serious and potentially life-threat- ishment statute nor the local policy could ening behaviors exhibited by the BRI prohibit SIBIS ifit were the most appro- students. The court issued an injunction priate treatment since federal law, name- prohibiting the Massachusetts agency ly the Education for All Handicapped from interfering with the BRI treatment Children Act (1975), was superior to state while at the same time imposing strict law. The federal act mandates that hand- monitoring requirements on the institu- icapped children have access to appro- tion in order to ensure that individuals' priate available treatments. rights were safeguarded. A second Michigan case, Van Duser v. While virtually all the reported court Intermediate School Board ofthe Inter- cases involving aversives and develop- mediate School District ofthe County of mentally disabled individuals have aris- Genesee (1989), also involved authori- en in the context of public or private zation for SIBIS. The case was settled residential institutions, recently two before a formal judicial opinion was ren- Michigan cases have addressed the issue dered when the school district agreed that in a public school setting. In re Northville SIBIS was a medical device and so long Public Schools and Wayne-Westland as it was prescribed by a physician, it did Public Schools (1990) involved a men- not fall within the Michigan statute. As tally retarded fifteen year old boy with part ofthe settlement, the school district AVERSIVES, FUNDAMENTAL RIGHTS AND THE COURTS 205 also agreed to implement an early inter- The unacceptable result will be that a class vention program aimed at identifying of severely disabled individuals will be other school children who were currently denied access to effective treatment op- exhibiting, or were at risk ofdeveloping, tions. self-injurious behavior (Landau, 1990). The use of aversive procedures must Once again, the key in these Michigan be authorized on a case by case basis tak- cases was a recognition of the aversive ing into account the unique clinical needs procedure as a legitimate, accepted form of the individual. Substituted judgment of treatment. Once that hurdle was sur- proceedings are currently the most effec- passed, state statutes that would ordi- tive means for achieving the appropriate narily serve as insurmountable obstacles balance between individual rights and were deemed inapplicable in the face of societal interests. By focusing on the par- an individual's paramount right to legit- ticular needs ofthe individual, the court imate, effective forms of treatment. is able to protect fundamental rights while Moreover, although the Northville Public assuring that effective treatment is pro- School case did not utilize a formal sub- vided. At the same time, clinicians who stituted judgment proceeding, the deci- advocate the judicious use of aversive sional framework employed by the hear- procedures can break free of the bonds ing officer encompasssed most of the of restrictive state laws and regulations substitutedjudgment elements. The final that do not reflect the advanced thinking result -putting SIBIS on hold temporar- in scientific fields such as behavior anal- ily while a new less intrusive behavioral ysis. program is attempted-struck a reason- able and constitutionally sound balance by insuring that less restrictive proce- REFERENCES dures are exhausted before more restric- Behavior Research Institute, Inc., et al. v. Leonard, tive ones are used. Bristol County (Mass.) Probate and Family Court, No. 86E0018-GI (1986). Brophy v. New England Sinai Hospital, Inc., 398 CONCLUSION Mass. 179 (1986). Education for All Handicapped Children Act of Several years ago, a state mental health 1975, 20 U.S.C. §1400 et seq. official predicted that "the era of use of Greenblatt, M. (1974). Class action and the right judicial procedures on behalf of the dis- to treatment. Hospital and Community Psychi- atry, 25, 449-452. enfranchised in our health system hasjust Griswold v. 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