There is a Right to Refuse Medication in Forensic Commitments: Now What do We Do?

1. There is a Right to Refuse Medication in Forensic Commitments:Now What do We Do? David Meyer, J.D. Institute of Psychiatry & Law U.S.C. Keck School of Medicine Forensic Mental Health Association 30th Annual Conference 2005

2. Session Objectives: • Understand forensic patient’s rights to refuse medication as described in recent appellate decisions • Understand current obligations to forensic patients, the Court and litigators related administration of medication • Discuss approaches being used in response to cases and obligations

3. Purpose and Disclaimer • This is an educational presentation related to laws and legal principle. It’s only purposes are to provided attendees with information and support discussion about a topic of interest to them. Nothing presented here constitutes legal advice. There are views other than those that will be expressed today. • If you have a question about the application of anything discussed here to something of concern to you, consult an attorney knowledgeable in the issues presented.

4. From Where Does the Right to Refuse Medication Come? • Historical practice in California: commitment order=power to medicate (In Re Locks) • USSC in Washington vs. Harper (1990) interprets the 14th Amendment “Due Process” clause • USSC in Sell vs. U.S. (2002) interprets the 5th Amendment “Due Process” Clause • CA. SC in In Re QAWI (2004) interprets P.C. §2972(g) • CA amends P.C. §§1370, 1370.01 (2004) • CA. C.A. in P. vs. O’Dell (2005) interprets P.C. §(a)(1)(F)(2)(B)

5. What is Due Process? • Amendment 5: “No person shall…be deprived of life, liberty, or property, without due process of law” • Amendment 14: “…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” • Procedural Due Process= fairness of the proceedings by which rights are denied • Substantive Due Process= “fundamental unfairness” save when the government has a superior interest • Statutory interpretation: What did they really mean?

6. Washington vs. Harper(1990) 494 U.S. 210 • State prisoner has a 14th Amendment liberty interest in not being medicated [cf. Vitek vs. Jones] unless G.D. or threat of “serious harm” to person or property. [Substantive DP] • Invol. meds. may be given only after a non-judicial hearing procedure [cf. Keyhea vs. Rushen] in which the prisoner can challenge the decision. [Procedural DP]

7. Sell vs. United States(2003) 539 U.S. 166 • “…the [5th Amendment of the] Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related…” (Substantive DP) • OR…

8. Sell vs. United States(2003) 539 U.S. 166 “A court need not consider whether to allow forced medication for that kind of purpose, if forced medication is warranted for a different purpose, such as the purposes set out in Harper related to the individual’s dangerousness, or purposes related to the individual’s own interests where refusal to take drugs puts his health gravely at risk.” AND

9. Sell vs. United States(2003) 539 U.S. 166 “For another thing, courts typically address involuntary medical treatment as a civil matter, and justify it on these alternative, Harper-type grounds. Every state provides avenues through which, for example, a doctor or institution can seek appointment of a guardian with the power to make a decision authorizing medication when in the best interests of a patient who lacks the mental competence to make such a decision.”

10. In Re Qawi(2004) 32 Cal. 4th 1 • “We hold that in order to give MDO's the same rights as LPS patients, an MDO can be compelled to take antipsychotic medication in a nonemergency situation only if a court, at the time the MDO is committed or recommitted, or in a separate proceeding, makes one of two findings: (1) that the MDO is incompetent or incapable of making decisions about his medical treatment [WIC §§5332, 5358; Riese vs. St. Mary’s]; or (2) that the MDO is dangerous within the meaning of Welfare and Institutions Code section 5300.”[Substantive DP;Statutory interpretation]

11. In Re Qawi(2004) 32 Cal. 4th 1 • Subdivision (g) of Penal Code section 2972 of the MDO Act states, in pertinent part: "Except as provided in this subdivision, the person committed shall be considered to be an involuntary mental health patient and he or she shall be entitled to those rights set forth in Article 7 [of the LPS Act].... [T]he State Department of Mental Health may adopt regulations to modify those rights as is necessary in order to provide for the reasonable security of the inpatient facility in which the patient is being held."

12. In Re Qawi(2004) 32 Cal. 4th 1 • “… the LPS Act implicitly addresses state interests in institutional security in nonemergency situations by not including patients committed under (WIC) section 5300…among those patients with the right to refuse medication. Such patients have neither the right to a capacity hearing possessed by LPS short-term patients…nor the right to a court determination of competency to refuse medical treatment possessed by long-term LPS conservatees.”

13. S.B. 1794 (Perata-’03-’04) • Addresses “Sell” decision and more • Minor substantive additions to court process • Leaves decision-making on capacity/involuntary medication to the court process • Judicial decision authorizes administration of medication, or not

14. S.B. 1794 (Perata-’03-’04) Additions to Penal Code §1369: • Forensic doctors must evaluate: • Mental disorder, if any • Ability to understand nature of proceedings or assist counsel • Whether or not treatment with antipsychotic medication is medically appropriate and is likely to restore the defendant to mental competence. • Whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others. • The likely or potential side effects of the medication, the expected efficacy of the medication, and possible alternative treatments.

15. S.B. 1794 (Perata-’03-’04) Additions to Penal Code §1370: • Staged determination leading to authorization of medication by provider. • FIRST, court determines if defendant consents to medication • Commitment order must reflect: • “…that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendant's consent.” • If the defendant withdraws consent for antipsychotic medication, the defendant must be returned to court for hearing to determine involuntary medication

16. S.B. 1794 (Perata-’03-’04) Additions to Penal Code §1370: • If defendant does not consent, or if withdraws consent, court determines, serially, whether ANY of these exists: 1) Def. lacks capacity to make decisions regarding antipsychotic medication & it is probable that serious harm to the physical or mental health will result w/out Rx. 2) Def. is a “demonstrated danger of inflicting substantial physical harm on others” (cf. W.I.C. §5300 + 6 yr. limit on consideration of past behavior) 3) “The people have charged the defendant with a serious crime … involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial; the medication is unlikely to have side effects that interfere with the defendant's ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner; less intrusive treatments are unlikely to have substantially the same results; and antipsychotic medication is in the patient's best medical interest in light of his or her medical condition.”

17. S.B. 1794 (Perata-’03-’04) Additions to Penal Code §1370: • If the court finds def. lacks capacity, danger to others or meets “Sell” criteria, as defined, then: • Court issues order authorizing the Tx “facility” to involuntarily administer Rx “…when and as prescribed by the…treating psychiatrist.”

18. People vs. O’Dell(2005) 126 Cal.App.4th 562 • Interprets 1/21/04 court order with §S.B.1794 • Def. committed under §1370 without Rx order, post Sell decision • NSH staff requested, and trial court authorized, involuntary Rx authority. • REVERSED, trial court must: • Consider facts & circumstances of current case • Consider hospital’s specific Rx recs. & assessment of Rx effects and side-effects • Consider basis of hospital’s assessment of no alternative or less intrusive approaches to restoration. • MORAL: specifically support the court request for Rx. authorization

19. Other Forensic Commitments? • SVP:Qawi limitations & authority apply to SVP commitments: People vs. Calhoun (2004) 121 Cal.App.4th 1315* [EP; DP] • NGRI/1026.5:In Re Qawi: “The reasoning in Locks is flawed…[because] the…court failed to identify the statutory and/or constitutional rights that govern persons committed after an adjudication of not guilty by reason of insanity. These questions are beyond the scope of the present case.” • Outpatient/CONREP: ???

20. Now What Do we Do? • Persuasion/Consent • Obtain authorization order from court (all commitments): • Prompt request to court; copies to parties; hand-deliver or document receipt • Careful justification and documentation of request • Request should follow the “staging” pattern of §1370(a)(1)(F)(2)(B) • Follow-up • Qawi “separate proceeding” to determine capacity or 5300 dangerousness • Emergencies:§1370(a)(1)(F)(2)(B)(vi); MDO (Qawi); SVP (Calhoun) • W.I.C. §5008(m) "a situation in which action to impose treatment over the person's objection is immediately necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first gain consent. It is not necessary for harm to take place or become unavoidable prior to treatment." • 9 C.C.R §853: “…a sudden marked change in the patient's condition so that action is immediately necessary for the preservation of the life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first obtain consent." • Sell alternative (LPS?): “A court need not consider whether to allow forced medication for that kind of purpose, if forced medication is warranted for a different purpose, such as the purposes set out in Harper related to the individual’s dangerousness, or purposes related to the individual’s own interests where refusal to take drugs puts his health gravely at risk.”

21. Had Enough? The lawyers, Bob, know too much. They are chums of the books of old John Marshall. They know it all, what a dead hand wrote, A stiff dead hand and its knuckles crumbling, The bones of the fingers a thin white ash. The lawyers know a dead man's thought too well. In the heels of the higgling lawyers, Bob, Too many slippery ifs and buts and howevers, Too much hereinbefore provided whereas, Too many doors to go in and out of. When the lawyers are through What is there left, Bob? Can a mouse nibble at it And find enough to fasten a tooth in? Why is there always a secret singing When a lawyer cashes in? Why does a hearse horse snicker Hauling a lawyer away? The work of a bricklayer goes to the blue. The knack of a mason outlasts a moon. The hands of a plasterer hold a room together. The land of a farmer wishes him back again. Singers of songs and dreamers of plays build a house no wind blows over. The lawyers--tell me why a hearse horse snickers hauling a lawyer's bones. Carl Sandburg