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16 St. Louis U. L.J. 182 (1971-1972)
The Beyond-Control Child and the Right to Treatment: An Exercise in the Synthesis of Paradox

handle is hein.journals/stlulj16 and id is 192 raw text is: THE BEYOND-CONTROL CHILD AND THE RIGHT TO TREATMENT: AN EXERCISE IN THE SYNTHESIS OF PARADOX** AIDAN R. GOUGH* Discussion of the right to treatment in the context of the juvenile court's jurisdiction over incorrigible or beyond-parental-control children requires the analysis and conjuncture of two quite problem- atic and slippery concepts: The existence of the right to treatment as a legally-cognizable prerogative of the person affected; and the state's coercive intervention by means of the juvenile court process in cases where a child has violated no criminal law, but nevertheless engages in behavior which is thought to evidence rebellion and place his future in jeopardy. This brief essay will attempt to examine both sides of the equation and to thresh out the questions of whether a particular claim to treatment lies in behalf of a beyond-control child, and if so, what its impact may be upon the juvenile justice system. THE RIGHT TO TREATMENT The notion that there exists for those held in involuntary non- criminal custody a right to effective treatment to remedy the condi- tion which brought about their confinement is little more than a decade old, but it has gained considerable impetus in the intervening years.1 Since its background and growth have been well-chronicled elsewhere, only summary treatment (if the reader will excuse the term) will be attempted here.2 The issue of a right to treatment is often said to have been first judicially recognized in cases involving * A.B. 1956, A.M. 1957, Stanford University; J.D. 1962, University of Santa Clara; LL.M. 1966, Harvard University. Professor of Law, University of Santa Clara. ** I am grateful to Mary Ann Grilli, A.B. Crim. 1968, Univ. of California (Berkeley), J. cand., University of Santa Clara, and Anne Marie Falvey, A.B. 1958, M.A.T. 1964, San Francisco College for Women; J.D. cand., Univer- sity of Santa Clara, for their assiduous and unflagging help in the prepara- tion of this article. 1. The concept of a right to treatment is widely acknowledged to have been first articulated by Birnbaum, The Right to Treatment, 46 A.B.A.J. 499 (1960). See also Editorial, 46 A.B.A.J. 516 (1960). 2. See, e.g., Symposium, The Right to Treatment, 57 GEO. L.J. 673 et seq. (1969); Symposium, The Right to Treatment, 36 U. CHI. L. REv. 742 et seq. (1969); Note, Civil Restraint, Mental Illness and the Right to Treatment, 77 YALE L.J. 87 (1967); Note, The Nascent Right to Treatment, 53 VA. L. REV. 1134 (1967); Birnbaum, Some Comments on the Right to Treatment, 13 ARCH. OF GEN. PSYCHIATRY 34 (1966).