Essays in Ethics and Health Policy

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Citation Player, Candice Teri-Lowe. 2013. Essays in Ethics and Health Policy. Doctoral dissertation, Harvard University.

Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:11051184

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Essays in Ethics and Health Policy

A dissertation presented by Candice Teri-Lowe Player

to The Interfaculty Initiative in Health Policy in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the subject of Health Policy

Harvard University Cambridge, Massachusetts May 2013

Professor Michelle Mello Candice Teri-Lowe Player Dissertation Advisor

Essays in Ethics and Health Policy

Abstract

In 1999 New York enacted Kendra’s Law, in memory of Kendra Webdale, a young woman

who was pushed to her death in front of an oncoming train by a man with untreated schizophrenia.

Under Kendra’s Law a court can order a person with a mental illness to participate in an “assisted

outpatient treatment” (AOT) program. Kendra’s Law includes a number of procedural due process

protections including the right to a hearing and the right to counsel. Still critics argue that people

with mental illnesses are routinely ordered to participate in the AOT program based on no more

than “a bare recital of the statutory criteria.” The first essay in this dissertation, Outpatient Commitment

and Procedural Due Process, reports the findings from a study on procedural due process and assisted

outpatient treatment hearings under Kendra’s Law. Findings from this study suggest that despite

the shift from a medical model of civil commitment to a judicial model in the late 1970s, by and

large judges continue to accord great deference to clinical testimony. A second paper, Rethinking

Kendra’s Law, addresses the ethical dilemmas that arise when courts impose AOT over the patient’s

objection.

The third paper of this dissertation, Public Assistance, Drug Testing and the Law, addresses the

Fourth Amendment questions that arise when states condition public assistance benefits on passing

a suspicionless drug test. To date eight states—including Florida, Georgia and Missouri—condition

public assistance benefits on passing a drug test. Proposals to condition public assistance on passing

a drug test have also appeared in Congress. However, without a genuine threat to public health or

public safety, proposals to condition public assistance on passing a drug test without individualized

suspicion of drug use are unreasonable under the Fourth Amendment. Even if the Supreme Court

iii were to recognize special needs beyond a genuine threat to public health or public safety, policies that result in withholding public assistance benefits from people who abuse illegal drugs are likely to make many social problems much worse.

CONTENTS

CHAPTER 1. OUTPATIENT COMMITMENT AND PROCEDURAL DUE PROCESS ...... 1

I. PROCEDURAL DUE PROCESS ...... 4 A. CASE LAW ...... 4 1. The Right to a Hearing ...... 6 2. The Right to Counsel ...... 10 3. The Standard of Proof: Clear and Convincing Evidence ...... 11 4. The Right to a Neutral Factfinder ...... 13 B. EMPIRICAL STUDIES ...... 15 1. The Right to a Hearing ...... 15 2. The Right to Counsel ...... 17 3. The Standard of Proof: Clear and Convincing Evidence ...... 19 4. The Right to a Neutral Factfinder ...... 20 C. SUMMARY