In a recent issue of MEDICOLEGAL NEWS, Christoffel and Stein reviewed and lamented the “lack of legislative action” against smoking, and blamed the “political and economic strength of the tobacco industry” for “this failure” to protect the public from the costs attributable to death, disease, and disability associated with cigarette smoking, described as the “primary preventable health risk” in the United States. An editorial rebuttal by Matthews noted that cigarette use may have other causes than the tobacco industry, that there may be little consensus as to the need to condemn smoking, and that “moral entrepreneurs” such as Christoffel and Stein could “buoy their spirits” by confining themselves initially to the business of protecting non-smokers from the consequences of people smoking in their presence.

The United States Fourth Circuit Court of Appeals decision in Trageser v. Libbie Rehabilitation Center, Inc., has severely limited the use of §504 in combating employment discrimination, and the United States Supreme Court has refused to review the case. Fortunately, the Department of Justice, the Department of Health, Education and Welfare (hereafter DHEW), the Senate Committee on Labor and Public Welfare, and the United States District Court for the Northern District of California disagree with the Fourth Circuit's finding.

This decision is ironic considering the purpose of the Rehabilitation Act of 1973. Traditionally, the overriding objective of federal and state rehabilitation programs has been to put handicapped people to work. And there can be little doubt, from the legislative history of the Rehabilitation Act, that Congressional sponsors of the law viewed the probability of increased employment opportunities as a major justification for the civil rights provisions of the Act.

The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research ended its work by substantially endorsing the status quo which places primary reliance on local Institutional Review Boards for subject protection. This was predictable because of the Commission's researcher-dominated composition which permitted it to assume that (1) research is good; (2) experimentation is almost never harmful to subjects, and (3) researcher-dominated IRBs can adequately protect the interests of human subjects. The successor Presidential Commission can learn much by re-examining these premises.

Justice Liacos's comments on the Saikewicz decision should end much of the debate that has swirled around the scope of this landmark case, and I commend MEDICOLEGAL NEWS or publishing his remarks. However, two aspects of the article deserve further comment.

First, it seems unfair to criticize lawyers for not immediately reading the case the way Justice Liacos now says it should have been read. While the opinion in Saikewicz is reasonably clear about the substantive rights of incompetent patients, it is imprecise about the procedures to be followed in implementing those rights. For example, in discussing the role of the probate court in such cases, the broad language used in the decision could be read as requiring a judge to review all treatment decisions involving incompetent patients.

Robert Plotkin of the Mental Health Law Project called the case a “tremendous victory” for the patients’ rights movement. Alan Stone, President of the American Psychiatric Association, bemoaned it as “the most impossible, inappropriate, ill-considered judicial decision in the field of mental health law.” The case is Rogers v. Okin, and in deciding it, U.S. District Court Judge Joseph L. Tauro has gone farther than any previous court in establishing the right of hospitalized psychiatric patients to refuse medication.

The class action suit was filed in 1975 by a group of patients involuntarily committed to the Austin and May Units of the Boston State Hospital. It was brought against the Massachusetts Commissioner of Mental Health, now Dr. Robert Okin, and thirteen psychiatrists and a psychologist who were then on the staff of Boston State Hospital.