PATIENTS’ RIGHTS

Harvey Dondershine, MD, JD

Right to Treatment

There is no unfettered or automatic “right” to treatment. A right to treatment requires an antecedent undertaking; such as an agreed doctor-patient relationship or a hospital’s specific promise to the community. A limited right to treatment, however, comes into existence when government detains a person against his will. This deprivation of liberty by government triggers constitutional safeguards. However, a state may choose to guarantee a right to treatment that exceeds the constitutional minimum. Regardless, the physician’s duty to treat – once begun – must meet the standard of care. To do less exposes the doctor to a charge of professional negligence. When such treatment is not possible because of administrative or legislative constraints, the physician has a duty to disclose this to the patient.

The LPS Act, at W&I. 5325.1 states:
 
It is the intent of the legislature that persons with mental illness shall have rights including, but not limited to, the following:
 
 (a) A right to treatment services which promote the potential of the person to function independently. Treatment should be provided in ways that are least restrictive of the personal liberty of the individual.
 (c) A right to be free from harm.
 (d) A right to prompt medical care and treatment.

As a legal doctrine, the right to treatment first appeared in the 1960's.  It was thought to be a quid pro quo for civil commitment's deprivation of liberty.  It started as a District of Columbia statute affirmed in Rouse v. Cameron (1966).  In 1971, an Alabama court in Wyatt v. Stickney found a right to treatment in the Equal Protection Clause of the 14th Amendment.  However, this right to treatment was limited in O'Connor v. Donaldson (Florida, 1975) when the Court said the non-dangerous mentally ill who could survive outside of the hospital could not be committed without more.  The Court specifically said it did not affirm the right to treatment enunciated in Wyatt v. Stickney. The right to treatment was limited much further in Youngberg v. Romeo (US Supreme Court, 1982).  The Supreme Court held that the involuntarily hospitalized patient was only entitled to that amount of treatment required to assure his freedom from unnecessary restraint and preventable assault inside the institution.  Court further held that it would not interfere with a specific decision regarding treatment so long as it was rendered by a qualified professional "using judgment."  

Right to Refuse Treatment

The right to refuse treatment is a fundamentally aspect of individual autonomy.  It lies at the heart of ethical medicine.  Judge Cordozo (1904) stated: "Every [person] of adult years and sound mind has a fundamental right to control what is to be done to his body."  The LPS Act specifically “presumes” decisional competence – and therefore the right to refuse - for all adults; but this presumption is rebutable at law and can be overridden in an emergency.  A refusal is incompetent if the refusing patient is: unable to respond knowingly and intelligently to questions about treatment; unable to participate in treatment decisions using rational processes; and unable to understand information about the recommended treatment. Did patient communicate a decision? Was the decision based on the information provided? Is there a mental status defect? Does the defect explain the refusal?

Forced Psychiatric Medication

In emergency a person detained may be treated over objection prior to capacity hearing with medication to treat the emergency.  It is not necessary for harm to take place or become unavoidable prior to intervention. Emergency exists when medication immediately necessary for preservation of life or prevention of serious bodily harm to patient or others, and it is impracticable to first gain consent. The “legal fiction” is that consent is presumed in the emergency; but this presumption ends when the emergency ends. Keep in mind that, LPS does not authorize forced medical treatment.

Rights of Hospitalized Mental Patients

California Welfare & Institutions Code

5325:

Each person involuntarily detained for evaluation or treatment under provisions of this part, each person admitted as a voluntary patient for psychiatric evaluation or treatment to any health facility, as defined in Section 1250 of the Health and Safety Code, in which psychiatric evaluation or treatment is offered, and each mentally retarded person committed to a state hospital pursuant to Article 5 (commencing with Section 6500) of Chapter 2 of Part 2 of Division 6 shall have the following rights…:

(a) To wear his or her own clothes; to keep and use his or her own personal possessions including his or her toilet articles; and to keep and be allowed to spend a reasonable sum of his or her own money for canteen expenses and small purchases.

(b) To have access to individual storage space for his or her private use.

(c) To see visitors each day.

(d) To have reasonable access to telephones, both to make and receive confidential calls or to have such calls made for them.

(e) To have ready access to letter writing materials, including stamps, and to mail and receive unopened correspondence.

(f) To refuse convulsive treatment including, but not limited to, any electroconvulsive treatment, any treatment of the mental condition this depends on the induction of a convulsion by any means and insulin coma treatment.

(g) To refuse psychosurgery. Psychosurgery is defined as those operations currently referred to as lobotomy, psychiatric surgery, and behavioral surgery and all other forms of brain surgery if the surgery is performed for the purpose of any of the following:

(1) Modification or control of thoughts, feelings, actions, or behavior rather than the treatment of a known and diagnosed physical disease of the brain.

(2) Modification of normal brain function or normal brain tissue in order to control thoughts, feelings, actions, or behavior.

(3) Treatment of abnormal brain function or abnormal brain tissue in order to modify thoughts, feelings, actions or behavior when the abnormality is not an established cause for those thoughts, feelings, actions, or behavior.

(h) To see and receive the services of a patient advocate who has no direct or indirect clinical or administrative responsibility for the person receiving mental health services.

(i) Other rights, as specified by regulation.

5325.1:

Persons with the mental illness have the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws and the Constitution and laws of the State of California, unless specifically limited by federal or state law or regulations.

5325.2:

Any person who is subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15 shall have the right to refuse treatment with antipsychotic medication subject to provisions set forth in this chapter.

5326:

The professional person in charge of the facility or his or her designee may, for good cause, deny a person any of the rights under Section 5325, except under subdivisions (g) and (h) and the rights under subdivision (f) may be denied only under the conditions specified in Section 5326.7. To ensure that these rights are denied only for good cause, the Director of Mental Health shall adopt regulations specifying the conditions under which they may be denied. Denial of a person's rights shall in all cases be entered into the person's treatment record.

5326.2:

To constitute voluntary informed consent, the following information shall be given to the patient in a clear and explicit manner:

(a) The reason for treatment, that is, the nature and seriousness of the patient's illness, disorder or defect.

(b) The nature of the procedures to be used in the proposed treatment, including its probable frequency and duration.

(c) The probable degree and duration (temporary or permanent) of improvement or remission, expected with or without such treatment.

(d) The nature, degree, duration, and the probability of the side effects and significant risks, commonly known by the medical profession, of such treatment, including its adjuvants, especially noting the degree and duration of memory loss (including its irreversibility) and how and to what extent they may be controlled, if at all.

(e) That there exists a division of opinion as to the efficacy of the proposed treatment, why and how it works and it’s commonly known risks and side effects.

(f) The reasonable alternative treatments and why the physician is recommending this particular treatment.

(g) That the patient has the right to accept or refuse the proposed treatment, and that if he or she consents, has the right to revoke his or her consent for any reason, at any time prior to or between treatments.

5326.5:

(a) For purposes of this chapter, "written informed consent" means that a person knowingly and intelligently, without duress or coercion, clearly and explicitly manifests consent to the proposed therapy to the treating physician and in writing on the standard consent form prescribed in Section 5326.4.

(b) The physician may urge the proposed treatment as the best one, but may not use, in an effort to gain consent, any reward or threat, express or implied, nor any other form of inducement or coercion, including, but not limited to, placing the patient in a more restricted setting, transfer of the patient to another facility, or loss of the patient's hospital privileges. Nothing in this subdivision shall be construed as in conflict with Section 5326.2. No one shall be denied any benefits for refusing treatment.

(c) A person confined shall be deemed incapable of written informed consent if such person cannot understand, or knowingly an intelligently act upon, the information specified in Section 5326.2.

(d) A person confined shall not be deemed incapable of refusal solely by virtue of being diagnosed as a mentally ill, disordered, abnormal, or mentally defective person.

(e) Written informed consent shall be given only after 24 hours have elapsed from the time the information in Section 5326.2 has been given.

5326.7:

Subject to the provisions of subdivision (f) of Section 5325, convulsive treatment may be administered to an involuntary patient, including anyone under guardianship or conservatorship, only if:

(a) The attending or treatment physician enters adequate documentation in the patient's treatment record of the reasons for the procedure, that all reasonable treatment modalities have been carefully considered, and that the treatment is definitely indicated and is the least drastic alternative available for this patient at this time. Such statement in the treatment record shall be signed by the attending and treatment physician or physicians.

(b) A review of the patient's treatment record is conducted by a committee of two physicians, at least one of whom shall have personally examined the patient. One physician shall be appointed by the facility and one shall be appointed by the local mental health director. Both shall be either board-certified or board-eligible psychiatrists or board-certified or board-eligible neurologists. This review committee must unanimously agree with the treatment physician's determinations pursuant to subdivision (a). Such agreement shall be documented in the patient's treatment record and signed by both physicians.

(c) A responsible relative of the person's choosing and the person's guardian or conservator, if there is one, have been given the oral explanation by the attending physician as required by Section 5326. Should the person desire not to inform a relative or should such chosen relative be unavailable, this requirement is dispensed with.

(d) The patient gives written informed consent as defined in Section 5326.5 to the convulsive treatment. Such consent shall be for a specified maximum number of treatments over a specified maximum period of time not to exceed 30 days, and shall be revocable at any time before or between treatments. Such withdrawal of consent may be either oral or written and shall be given effect immediately. Additional treatments in number or time, not to exceed 30 days, shall require a renewed written informed consent.

(e) The patient's attorney, or if none, a public defender appointed by the court, agrees as to the patient's capacity or incapacity to give written informed consent and that the patient who has capacity has given written informed consent.

(f) If either the attending physician or the attorney believes that the patient does not have the capacity to give a written informed consent, then a petition shall be filed in superior court to determine the patient's capacity to give written informed consent. The court shall hold an evidentiary hearing after giving appropriate notice to the patient, and within three judicial days after the petition is filed. At such hearing the patient shall be present and represented by legal counsel. If the court deems the above-mentioned attorney to have a conflict of interest, such attorney shall not represent the patient in this proceeding.

(g) If the court determines that the patient does not have the capacity to give written informed consent, then treatment may be performed upon gaining the written informed consent as defined in Sections 5326.2 and 5326.5 from the responsible relative or the guardian or the conservator of the patient.

(h) At any time during the course of treatment of a person who has been deemed incompetent, that person shall have the right to claim regained competency. Should he do so, the person's competency must be reevaluated according to subdivisions (e), (f), and (g).

5326.9:

(c) Any physician who intentionally violates Sections 5326.2 to 5326.8, inclusive, shall be subject to a civil penalty of not more than five thousand dollars ($5,000) for each violation. Such penalty may be assessed and collected in a civil action brought by the Attorney General in a superior court. Such intentional violation shall be grounds for revocation of license.

(d) Any person or facility found to have knowingly violated the provisions of the first paragraph of Section 5325.1 or to have denied without good cause any of the rights specified in Section 5325 shall pay a civil penalty, as determined by the court, of fifty dollars ($50) per day during the time in which the violation is not corrected, commencing on the day on which a notice of violation was issued, not to exceed one thousand dollars ($1,000), for each and every violation, except that any liability under this provision shall be offset by an amount equal to a fine or penalty imposed for the same violation under the provisions of Sections 1423 to 1425, inclusive, or 1428 of the Health and Safety Code. These penalties shall be deposited in the general fund of the county in which the violation occurred. The local district attorney or the Attorney General shall enforce this section in any court with jurisdiction. Where the State Department of Health Services, under the provisions of Sections 1423 to 1425, inclusive, of the Health and Safety Code, determines that no violation has occurred, the provisions of paragraph (4) of subdivision (b) shall not apply.

(e) The remedies provided by this subdivision shall be in addition to and not in substitution for any other remedies which an individual may have under law.

5332:

(a) Antipsychotic medication, as defined in subdivision (l) of Section 5008, may be administered to any person subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, if that person does not refuse that medication following disclosure of the right to refuse medication as well as information required to be given to persons pursuant to subdivision (c) of Section 5152 and subdivision (b) of Section 5213.

(b) If any person subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, and for whom antipsychotic medication has been prescribed, orally refuses or gives other indication of refusal of treatment with that medication, the medication shall be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that person's incapacity to refuse the treatment, in a hearing held for that purpose.

(c) Each hospital in conjunction with the hospital medical staff or any other treatment facility in conjunction with its clinical staff shall develop internal procedures for facilitating the filing of petitions for capacity hearings and other activities required pursuant to this chapter.

(d) When any person is subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, the agency or facility providing the treatment shall acquire the person's medication history, if possible.

(e) In the case of an emergency, as defined in subdivision (m) of Section 5008, a person detained pursuant to Section 5150, 5250, 5260, or 5270.15 may be treated with antipsychotic medication over his or her objection prior to a capacity hearing, but only with antipsychotic medication that is required to treat the emergency condition, which shall be provided in the manner least restrictive to the personal liberty of the patient. It is not necessary for harm to take place or become unavoidable prior to intervention.

5333:

(a) Persons subject to capacity hearings pursuant to Section 5332 shall have a right to representation by an advocate or legal counsel. "Advocate," as used in this section, means a person who is providing mandated patients' rights advocacy services pursuant to Chapter 6.2 (commencing with Section 5500), and this chapter. If the Department of Mental Health provides training to patients' rights advocates, that training shall include issues specific to capacity hearings.

(b) Petitions for capacity hearings pursuant to Section 5332 shall be filed with the superior court. The director of the treatment facility or his or her designee shall personally deliver a copy of the notice of the filing of the petition for a capacity hearing to the person who is the subject of the petition.

(c) The mental health professional delivering the copy of the notice of the filing of the petition to the court for a capacity hearing shall, at the time of delivery, inform the person of his or her legal right to a capacity hearing, including the right to the assistance of the patients' rights advocate or an attorney to prepare for the hearing and to answer any questions or concerns.

(d) As soon after the filing of the petition for a capacity hearing is practicable, an attorney or a patients' rights advocate shall meet with the person to discuss the capacity hearing process and to assist the person in preparing for the capacity hearing and to answer questions or to otherwise assist the person, as is appropriate.

5334:

(a) Capacity hearings required by Section 5332 shall be heard within 24 hours of the filing of the petition whenever possible. However, if any party needs additional time to prepare for the hearing, the hearing shall be postponed for 24 hours. In case of hardship, hearings may also be postponed for an additional 24 hours, pursuant to local policy developed by the county mental health director and the presiding judge of the superior court regarding the scheduling of hearings. The policy developed pursuant to this subdivision shall specify procedures for the prompt filing and processing of petitions to ensure that the deadlines set forth in this section are met, and shall take into consideration the availability of advocates and the treatment needs of the patient. In no event shall hearings be held beyond 72 hours of the filing of the petition. The person who is the subject of the petition and his or her advocate or counsel shall receive a copy of the petition at the time it is filed.

(b) Capacity hearings shall be held in an appropriate location at the facility where the person is receiving treatment, and shall be held in a manner compatible with, and the least disruptive of, the treatment being provided to the person.

(c) Capacity hearings shall be conducted by a superior court judge, a court-appointed commissioner or referee, or a court-appointed hearing officer. All commissioners, referees, and hearing officers shall be appointed by the superior court from a list of attorneys unanimously approved by a panel composed of the local mental health director, the county public defender, and the county counsel or district attorney designated by the county board of supervisors. No employee of the county mental health program or of any facility designated by the county and approved by the department as a facility for 72-hour treatment and evaluation may serve as a hearing officer. All hearing officers shall receive training in the issues specific to capacity hearings.

(d) The person who is the subject of the capacity hearing shall be given oral notification of the determination at the conclusion of the capacity hearing. As soon thereafter as is practicable, the person, his or her counsel or advocate, and the director of the facility where the person is receiving treatment shall be provided with written notification of the capacity determination, which shall include a statement of the evidence relied upon and the reasons for the determination. A copy of the determination shall be submitted to the superior court.

(e)

(1) The person who is the subject of the capacity hearing may appeal the determination to the superior court or the court of appeal.

(2) The person who has filed the original petition for a capacity hearing may request the district attorney or county counsel in the county in which the person is receiving treatment to appeal the determination to the superior court or the court of appeal, on behalf of the state.

(3) Nothing shall prohibit treatment from being initiated pending appeal of a determination of incapacity pursuant to this section.

(4) Nothing in this section shall be construed to preclude the right of a person to bring a writ of habeas corpus pursuant to Section 5275, subject to the provisions of this chapter.

(f) All appeals to the superior court pursuant to this section shall be subject to de novo review.

5336:

Any determination of a person's incapacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 shall remain in effect only for the duration of the detention period described in Section 5150 or 5250, or both, or until capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332, or by court determination, whichever is sooner.

Landmark Cases

Wyatt v. Stickney 325 F. Supp 781 (Ala)

Issue: 

Patients have a "constitutional right to receive such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition."

Summary:

In defining a right to treatment by specific staffing ratios and other objective criteria (which the state could not meet both because of expense and inability to attract sufficient professionals), the court paved the way for massive deinstitutionalization.

Background:

The precipitating factor in the Wyatt case was a cut in Alabama's cigarette tax. As a result of the budget shortfall, over a hundred employees at Bryce Hospital in Tuscaloosa, Alabama lost their jobs, twenty of them professionals (psychologists, social workers and occupational therapists). The Department of Psychology at Bryce spearheaded the suit for reinstatement brought by those laid off, and for tactical reasons added a patient, Ricky Wyatt, the nephew of one of the laid-off employees. Adding the patient enabled the suit to allege that patients' treatment suffered as a result of the layoffs. Federal District Judge Frank M. Johnson dismissed the part of the suit brought by the professionals, holding that the Alabama Department of Mental Health had the right to lay off employees, but consented to hear the part of the suit dealing with the patients' grievances.

From a broader perspective, the suit had its roots in two disparate developments. One was attorney-physician Morton Birnbaum's seminal article "The Right to Treatment" published in 1960, ten years prior to the Wyatt case. Birnbaum had advanced what was then the revolutionary thesis that each mental patient had a legal right to such treatment as would give him "a realistic opportunity to be cured or improve his mental condition." Failing that, Birnbaum argued, the patient should be able "to obtain his release at will in spite of the existence or severity of his mental illness." Birnbaum did not see the latter as a way to achieve deinstitutionalization but rather as an enforcement mechanism to impel improved hospital treatment. Alabama attorney George Dean, retained by the plaintiffs in Wyatt, decided to use Birnbaum's thesis of a "right to treatment" as the basis for his suit and Birnbaum himself became co-counsel.

The second very different development in which the Wyatt case was rooted was the rise of a mental health bar whose goal was to abolish, or if that was not possible, severely limit involuntary commitment of mental patients. Attorneys with this perspective were ambivalent about litigating a "right to treatment." Bruce Ennis, father of the mental health bar, at first refused to do so, explaining in a 1974 interview with Madness Network News, "I refused to do so because I was afraid if they [lawsuits based on the right to treatment] were successful...it would become a legitimizing stamp on involuntary confinement, another basis for depriving people of their liberty.... In other words, I don't really believe in the 'right to treatment' concept."

Despite Dean's basing Wyatt on "the right to treatment," Ennis decided to participate in the case. He explained his reason: There was "advance information" that the judge "would not only say there is something in the abstract called the 'right to treatment,' but that he would set standards so high the state would be unable to meet them and would "have to discharge many of the patients in its institutions." Winning the right to treatment, said Ennis in that same 1974 interview, would thus serve "as the best method for deinstitutionalizing thousands of persons." Along with several other attorneys opposed to involuntary commitment (they would join forces in 1972 to form the Mental Health Law Project), Ennis worked with Dean and Birnbaum on the Wyatt case.

Conditions at Alabama state hospitals were indisputably bad, making Wyatt a particularly propitious case. Physical plant, clothing, food (budgeted at 50 cents per day) were all woefully inadequate; there was a single psychiatrist for 5,000 patients; and psychologists and social workers were correspondingly scarce.

The Decision:

Judge Johnson ruled that patients "unquestionably have a constitutional right to receive such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition" (a direct quote from Birnbaum's formulation of the "right to treatment)," and that the programs at the hospital "failed to conform to any known minimums established for providing treatment for the mentally ill." He ruled that the due process clause of the Constitution was violated: "To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the fundamentals of due process."

Judge Johnson gave the state six months to implement fully the "right to treatment" at Bryce Hospital and when, at the end of that time, it had failed to do so, he set out specific requirements the hospital would have to meet. Judge Johnson interpreted the right to treatment, as Birnbaum had argued he should, in "objective" terms -- so many professionals per so many patients, the preparation of treatment plans, a physical plant meeting certain standards. The assumption was that if these objectively measurable conditions were met, treatment would necessarily follow. Accordingly Judge Johnson not only stipulated the required proportion of psychiatrists, nurses, psychologists, and social workers to patients, but dictated the number of chaplains, messengers, dietitians, and maintenance repairmen. He stipulated how often linen had to be changed, how many showers a patient should receive, and what furniture should be in the dayroom. He even stipulated the temperature for dishwashing -- it had to be "thermostatically controlled" at 180 degrees Fahrenheit.

Significance:

If Lessard v. Schmidt was the seminal case in drastically limiting the state's power to commit patients on parens patriae grounds, Wyatt was the seminal case in achieving drastic deinstitutionalization of previously committed patients. Following Judge Johnson's decision, there was similar litigation in a number of states, among them Louisiana, Minnesota, and Ohio. Rather than face costly court-imposed standards, some of them impossible to meet (Alabama's efforts to recruit psychiatrists were unavailing), states rapidly emptied their hospitals. The Wyatt litigation was also significant in giving birth to the Mental Health Law Project (now known as the Bazelon Center for Mental Health Law), which was created by Bruce Ennis and three other young attorneys working on Wyatt. It became the ideological fulcrum of the mental health bar, further restricting involuntary treatment and creating and expanding the right to refuse treatment.

Comment:

The Wyatt decision resulted in a quantum leap for deinstitutionalization. Although in 1975, in the Donaldson case, the Supreme Court would refuse to endorse the existence of a constitutional "right to treatment," states were not prepared to run the risk of expensive court-ordered overhauls of state mental hospitals. Throughout the country, patients were dumped from hospitals, supposedly to be cared for in the community, but, as Birnbaum vainly warned, without alternative facilities in place to care for them.

Riese v. St. Mary's Hospital and Medical Center (CA)

Issue:

"[A]bsent a judicial determination of incompetence, antipsychotic drugs cannot be administered to involuntarily committed mental patients in non-emergency situations without their informed consent."

Summary:

In 1987 the California State Court of Appeals overruled the traditional interpretation of California's Lanterman-Petris-Short Act of 1968. It had been assumed that the Act permitted involuntary treatment for those detained under an initial three day hold (for evaluation and treatment) and subsequent 14 day hospitalization (if, after those 72 hours, the patient is "certified" as dangerous to self or others or gravely disabled). The Court of Appeals found that these patients had the right to exercise informed consent to the use of antipsychotic drugs, absent an emergency, and, should they reject medication, "a judicial determination of their incapacity to make treatment decisions" was necessary before they could be involuntarily treated.

Background:

This was a class action suit brought by the California ACLU in the name of Eleanor Riese to establish a right to refuse medication for patients hospitalized under the LPS Act. Riese had first been hospitalized for chronic schizophrenia in 1968 at the age of 25, responded to the anti-psychotic drug Mellaril, and upon discharge in 1969 had moved into her own apartment. In 1981 she ceased taking her medication (she had bladder problems apparently stemming from the Mellaril) and was hospitalized again.

She was in and out of hospitals several times in the next few years, with psychiatrists trying several different medications. In 1985 she was admitted again, initially as a voluntary patient, but when she refused medication, her status was changed to that of an involuntary patient.

The Decision:

The trial court upheld the traditional interpretation of LPS and ruled that there was no right to refuse medication. But the Court of Appeals reversed.(Its decision was appealed to the California Supreme Court which refused to hear it, allowing the Court of Appeals decision to stand.) The Court of Appeals dismissed the argument of the defendant hospital – which the court termed "the cornerstone" of the hospital's case – that because LPS did not explicitly grant a right to refuse antipsychotic medication, such a right did not exist. (The hospital pointed out that a patient's right to refuse ECT and psychosurgery was specified in the LPS Act and argued that the Act's failure to assert such a right in relation to antipsychotic medication meant the legislature did not intend there be such a right.) A statutory omission, said the court, could not be treated as exclusion: "throughout the statutory scheme the Legislature repeatedly admonishes that the failure of LPS to explicitly confer a particular right upon mentally ill persons cannot provide a basis upon which to deny it."

The judges zeroed in on the issue of presumed competence of mental patients. Mental patients were presumed competent unless found incompetent by a court. In their decision they quoted a section of the LPS Act: "No person may be presumed to be incompetent because he or she has been evaluated or treated for mental disorder...regardless of whether such evaluation or treatment was voluntarily or involuntarily received."

Moreover, said the court, since treatment with antipsychotic drugs "has profound effects...on mind and body," the right to refuse treatment with these drugs "clearly falls within the recognized right to refuse medical treatment." (That right had been established in California in 1972, four years after the passage of the LPS Act, in Cobbs v. Grant, in which the California Supreme Court declared the right to informed consent to medical treatment was a constitutional right which could only be denied if the patient was incompetent, in which case the patient's "authority to consent is transferred to a guardian or the closest available relative.")

Because this right is guaranteed by the Constitution and the laws of the State of California, the Court of Appeals ruled, "it cannot be denied those confined under LPS absent a specific statutory limitation." Accordingly the judges ruled, "absent a judicial determination of incompetence, antipsychotic drugs cannot be administered to involuntarily committed mental patients in non-emergency situations without their informed consent." Furthermore, they ruled, "The court is not to decide such medical questions as whether the proposed therapy is definitely needed or is the least drastic alternative available, but may consider such issues only as pertinent to assessment of the patient's ability to consent to the treatment."

Significance:

The reason Riese was seen as a particularly important right to refuse treatment case was because California had seemed a singularly unpromising state in which to establish such a right. In passing the then revolutionary Lanterman-Petris-Short Act in 1968, the legislature had attempted to strike a balance: the commitment period would be brief (no more than 17 days in all except in highly circumscribed special circumstances), but psychiatrists would be allowed to treat the patient in that time span.

Indeed LPS specified that a person detained for evaluation and treatment "shall receive whatever treatment and care as his or her condition requires for the full period that he or she is held." Even advocates of a right to refuse treatment had assumed LPS failed to provide that right. In 1986, a year prior to the Court of Appeals decision in Riese, patients' rights groups opposed amendments of the LPS Act that required giving patients detailed information on side effects on drugs, complaining that the bill did not create any right to refuse treatment even for "competent involuntary patients."

Comment:

The California Court of Appeals decision in Riese took away whatever slight rationale adhered to the LPS Act. No other state set an arbitrary time limit for hospitalization. The 17 days established by LPS was sucked out of the air, with not a shred of evidence ever offered that this was the amount of time in which severely ill people could be restored to functioning in the community. The only positive feature of the Act was the intensive treatment it permitted in that arbitrarily defined period.

Rogers v Mills 478 F.Supp. 1342(Mass)

Issue: 

"committed mental patient assumed competent to make treatment decisions in non-emergencies"

Summary:

Committed mental patients, both voluntary and involuntary, are assumed by state law to be competent to manage their own affairs and hence cannot be forcibly medicated, except in emergency situations. When a court finds a patient to be incompetent, the judge, based on substituted judgment, decides if he is to be treated.

Background:

This class action suit, originally brought in 1975, grew out of organizing efforts by the Mental Patients Liberation Front at Boston State Hospital. Judi Chamberlin, a leader in the Front, has written that "many of the patients who became plaintiffs in the suit were members of a weekly patients' rights group at the hospital in which members of the Mental Patients Liberation Front met with interested patients." There were seven named plaintiffs -- ranging in age from 52 to 20 -- who were hospitalized on two separate wards (the Austin and May units). The suit sought to enjoin the hospital, except in emergencies, from medicating them against their will or putting them in isolation. Most had a history of revolving door admissions: 38 year old Betty Bybel was admitted to the Austin Unit on 28 occasions between January 1973 and April 1975. Twenty-year-old Donna Hunt was first admitted at 15: falling ill with encephalitis at the age of three, she suffered organic brain damage. Fifty two year old Harold Warner had been held at Bridgewater State Hospital for the criminally insane for 17 years for assault and battery on a 12 year old girl. Rubie Rogers, by whose name the case came to be known, was in her late 30s, with a history of admissions and discharges beginning in 1965. For the four years previous to the suit she had been a voluntary patient at the hospital.

The Decision:

At the trial level, Judge Tauro ruled that under Massachusetts law committed mental patients were presumed to be competent to manage their own affairs (dispose of property etc.), yet "such rights pale in comparison to the intimate decision as to whether to accept or refuse psychotropic medication." He asserted that in a non-emergency "it is an unreasonable invasion of privacy, and an affront to basic concepts of human dignity to permit the forced injection of mind altering drugs..." Although the state had a duty to make treatment available to mental patients, it had no duty to impose it on "the competent involuntary patient who prefers to refuse medication, regardless of its potential benefit."

In his opinion Judge Tauro took note of the defendant psychiatrists' argument that it was the state's parens patriae obligation to provide treatment for patients who had been committed for the purpose of treatment, even in the face of their opposition to it. He dismissed this argument on the grounds that "the State's interest in protecting the safety of the general public is the justification for commitment of mental patients." Involuntary treatment, Judge Tauro ruled, "is not necessary to protect the general public, since the patient has already been quarantined by commitment."

Judge Tauro accepted the argument that first amendment rights were at stake, which was contained in the brief of the plaintiffs' attorney, Richard Cole. "Realistically," Judge Tauro ruled "the capacity to think and decide is a fundamental element of freedom" and whatever power the Constitution granted our government "involuntary mind control is not one of them." And psychotropic drugs, he asserted were "indisputably mind-altering."

The committed mental patient, said Judge Tauro, had the right to make treatment decisions until he was adjudicated incompetent by a judge. At this point, he noted, the parens patriae right of the state could be exercised and a guardian appointed by the court to make decisions, including treatment decisions, for the patient.

Judge Tauro's decision was appealed, and while the Court of Appeals for the First Circuit (Mills v. Rogers) basically upheld the lower court, it expanded the definition of "emergency situation." Judge Tauro had defined an emergency as when "there is a substantial likelihood of...extreme violence, personal injury or attempted suicide." The Court of Appeals redefined emergency to include cases where the patient needed medication to prevent "further suffering of that patient or the rapid worsening of his clinical condition."

Significance:

The Rogers case initiated a model that would be copied by a number of other states, requiring court hearings before a patient may be medicated without his consent. This has imposed significant costs and delays in treatment, although the court in the end very rarely upholds the patient's refusal.

Comment:

The court gave the time-honored doctrine of parens patriae – the state's duty to intervene to help the helpless -- short shrift. The state's interest only extended to "quarantining" the mentally ill who posed a danger to the public. Judges are supposed to determine if the refusing patient is competent and then be guided by the principle of "substituted judgment" in deciding if the incompetent patient is to be treated.