there is a right to refuse medication in forensic commitments: now what do we do? david meyer, j.d....

There is a Right to Refuse Medication There is a Right to Refuse Medication in Forensic Commitments:in Forensic Commitments:

Now What do We Do?Now What do We Do? David Meyer, J.D.David Meyer, J.D.

Institute of Psychiatry & LawInstitute of Psychiatry & LawU.S.C. Keck School of MedicineU.S.C. Keck School of Medicine

Forensic Mental Health Association Forensic Mental Health Association 3030thth Annual Conference Annual Conference 20052005

Session Objectives:Session Objectives:

Understand forensic patient’s rights to Understand forensic patient’s rights to refuse medication as described in recent refuse medication as described in recent appellate decisionsappellate decisions

Understand current obligations to forensic Understand current obligations to forensic patients, the Court and litigators related patients, the Court and litigators related administration of medicationadministration of medication

Discuss approaches being used in Discuss approaches being used in response to cases and obligations response to cases and obligations

Purpose and DisclaimerPurpose and Disclaimer

This is an educational presentation related to This is an educational presentation related to laws and legal principle. It’s only purposes are to laws and legal principle. It’s only purposes are to provided attendees with information and support provided attendees with information and support discussion about a topic of interest to them. discussion about a topic of interest to them. Nothing presented here constitutes legal advice. Nothing presented here constitutes legal advice. There are views other than those that will be There are views other than those that will be expressed today.expressed today.

If you have a question about the application of If you have a question about the application of anything discussed here to something of anything discussed here to something of concern to you, consult an attorney concern to you, consult an attorney knowledgeable in the issues presented.knowledgeable in the issues presented.

From Where Does the Right to Refuse From Where Does the Right to Refuse Medication Come?Medication Come?

Historical practice in California: commitment Historical practice in California: commitment order=power to medicate (In Re Locks)order=power to medicate (In Re Locks)

USSC in USSC in Washington vs. HarperWashington vs. Harper (1990) interprets (1990) interprets the 14the 14thth Amendment “Due Process” clause Amendment “Due Process” clause

USSC in USSC in Sell vs. U.S.Sell vs. U.S. (2002) interprets the 5 (2002) interprets the 5thth Amendment “Due Process” ClauseAmendment “Due Process” Clause

CA. SC in CA. SC in In Re QAWIIn Re QAWI (2004) interprets P.C. (2004) interprets P.C. §2972(g) §2972(g)

CA amends P.C. CA amends P.C. §§1370, 1370.01 (2004)§§1370, 1370.01 (2004) CA. C.A. in CA. C.A. in P. vs. O’DellP. vs. O’Dell (2005) interprets P.C. (2005) interprets P.C.

§(a)(§(a)(1)(F)(2)(B)

What is Due Process?What is Due Process?

Amendment 5: “Amendment 5: “No person shall…be deprived of life, No person shall…be deprived of life, liberty, or property, without due process of law”liberty, or property, without due process of law”

Amendment 14: “Amendment 14: “…nor shall any state deprive any …nor shall any state deprive any person of life, liberty, or property, without due process of person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the law; nor deny to any person within its jurisdiction the equal protection of the laws”equal protection of the laws”

Procedural Due Process= Procedural Due Process= fairness of the proceedings by fairness of the proceedings by which rights are deniedwhich rights are denied

Substantive Due Process= Substantive Due Process= “fundamental unfairness” “fundamental unfairness” save when the government has a superior interestsave when the government has a superior interest

Statutory interpretation:Statutory interpretation: What did they What did they reallyreally mean? mean?

Washington vs. HarperWashington vs. Harper(1990) 494 U.S. 210(1990) 494 U.S. 210

State prisoner has a 14State prisoner has a 14thth Amendment Amendment liberty interest in not being medicated [cf. liberty interest in not being medicated [cf. Vitek vs. Jones] unless G.D. or threat of Vitek vs. Jones] unless G.D. or threat of “serious harm” to person or property. “serious harm” to person or property. [Substantive DP][Substantive DP]

Invol. meds. may be given only after a Invol. meds. may be given only after a non-judicial hearing procedure [cf. Keyhea non-judicial hearing procedure [cf. Keyhea vs. Rushen] in which the prisoner can vs. Rushen] in which the prisoner can challenge the decision. [Procedural DP]challenge the decision. [Procedural DP]

Sell vs. United StatesSell vs. United States(2003) 539 U.S. 166(2003) 539 U.S. 166

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

OR…


““A court need not consider whether to allow forced A court need not consider whether to allow forced medication for that kind of purpose, if forced medication is medication for that kind of purpose, if forced medication is warranted for a warranted for a different different purpose, such as the purposes set purpose, such as the purposes set out in out in Harper Harper related to the individual’s dangerousness, or related to the individual’s dangerousness, or purposes related to the individual’s own interests where purposes related to the individual’s own interests where

refusal to take drugs puts his health gravely at risk.refusal to take drugs puts his health gravely at risk.”

ANDAND


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

In Re QawiIn Re Qawi(2004) 32 Cal. 4(2004) 32 Cal. 4thth 1 1

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


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


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

S.B. 1794 (Perata-’03-’04)S.B. 1794 (Perata-’03-’04)

Addresses “Sell” decision and moreAddresses “Sell” decision and more Minor substantive additions to court Minor substantive additions to court

processprocess Leaves decision-making on Leaves decision-making on

capacity/involuntary medication to the capacity/involuntary medication to the court processcourt process

Judicial decision authorizes administration Judicial decision authorizes administration of medication, or notof medication, or not

S.B. 1794 (Perata-’03-’04)S.B. 1794 (Perata-’03-’04) Additions to Penal Code §1369: Additions to Penal Code §1369:

Forensic doctors must evaluate:Forensic doctors must evaluate: Mental disorder, if anyMental disorder, if any Ability to understand nature of proceedings or assist Ability to understand nature of proceedings or assist

counselcounsel Whether or not treatment with antipsychotic medication Whether or not treatment with antipsychotic medication

is medically appropriate and is likely to restore the is medically appropriate and is likely to restore the defendant to mental competence.defendant to mental competence.

Whether the defendant has capacity to make decisions Whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the regarding antipsychotic medication and whether the defendant is a danger to self or others.defendant is a danger to self or others.

The likely or potential side effects of the medication, the The likely or potential side effects of the medication, the expected efficacy of the medication, and possible expected efficacy of the medication, and possible alternative treatments.alternative treatments.


Staged determination leading to authorization of Staged determination leading to authorization of medication by provider.medication by provider.

FIRST, court determines if defendant consents FIRST, court determines if defendant consents to medicationto medication

Commitment order must reflect:Commitment order must reflect: “…“…that antipsychotic medication may be given to the that antipsychotic medication may be given to the

defendant as prescribed by a treating psychiatrist defendant as prescribed by a treating psychiatrist pursuant to the defendant's consent.”pursuant to the defendant's consent.”

If the defendant withdraws consent for antipsychotic If the defendant withdraws consent for antipsychotic medication, the defendant must be returned to court medication, the defendant must be returned to court for hearing to determine involuntary medicationfor hearing to determine involuntary medication


If defendant does not consent, or if withdraws consent, If defendant does not consent, or if withdraws consent, court determines, serially, whether ANY of these exists:court determines, serially, whether ANY of these exists:

1) Def. lacks capacity to make decisions regarding 1) Def. lacks capacity to make decisions regarding antipsychotic medication & it is probable that serious harm to antipsychotic medication & it is probable that serious harm to the physical or mental health will result w/out Rx.the physical or mental health will result w/out Rx.

2) Def. is a “demonstrated danger of inflicting substantial 2) Def. is a “demonstrated danger of inflicting substantial physical harm on others” (cf. W.I.C. physical harm on others” (cf. W.I.C. §§5300 + 6 yr. limit on 5300 + 6 yr. limit on consideration of past behavior)consideration of past behavior)

3) “3) “The people have charged the defendant with a serious The people have charged the defendant with a serious crime … involuntary administration of antipsychotic crime … involuntary administration of antipsychotic medication is substantially likely to render the defendant medication is substantially likely to render the defendant competent to stand trial; the medication is unlikely to have competent to stand trial; the medication is unlikely to have side effects that interfere with the defendant's ability to side effects that interfere with the defendant's ability to understand the nature of the criminal proceedings or to assist understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner; counsel in the conduct of a defense in a reasonable manner; less intrusive treatments are unlikely to have substantially the less intrusive treatments are unlikely to have substantially the same results; and antipsychotic medication is in the patient's same results; and antipsychotic medication is in the patient's best medical interest in light of his or her medical condition.”best medical interest in light of his or her medical condition.”


If the court finds def. lacks capacity, If the court finds def. lacks capacity, danger to others or meets “Sell” criteria, as danger to others or meets “Sell” criteria, as defined, then:defined, then:

Court issues order authorizing the Tx Court issues order authorizing the Tx “facility”“facility” to involuntarily administer Rx “… to involuntarily administer Rx “…when and as prescribed by the…treating when and as prescribed by the…treating psychiatrist.”psychiatrist.”

People vs. O’Dell(2005) 126 Cal.App.4th 562

Interprets 1/21/04 court order with Interprets 1/21/04 court order with §S.B.1794§S.B.1794 Def. committed under §1370 without Rx order, Def. committed under §1370 without Rx order,

post post SellSell decision decision NSH staff requested, and trial court authorized, NSH staff requested, and trial court authorized,

involuntary Rx authority.involuntary Rx authority. REVERSED, trial court must:REVERSED, trial court must:

Consider facts & circumstances of current caseConsider facts & circumstances of current case Consider hospital’s specific Rx recs. & assessment of Rx effects Consider hospital’s specific Rx recs. & assessment of Rx effects

and side-effectsand side-effects Consider basis of hospital’s assessment of no alternative or less Consider basis of hospital’s assessment of no alternative or less

intrusive approaches to restoration.intrusive approaches to restoration.

MORAL: specifically support the court request MORAL: specifically support the court request for Rx. authorizationfor Rx. authorization

Other Forensic Commitments?Other Forensic Commitments?

SVP:SVP: QawiQawi limitations & authority apply to SVP limitations & authority apply to SVP commitments: commitments: People vs. CalhounPeople vs. Calhoun (2004) 121 (2004) 121 Cal.App.4Cal.App.4thth 1315 1315** [EP; DP] [EP; DP]

NGRI/1026.5:NGRI/1026.5: In Re QawiIn Re Qawi: : “ “The reasoning in The reasoning in LocksLocks is flawed…[because] the…court failed to is flawed…[because] the…court failed to identify the statutory and/or constitutional rights identify the statutory and/or constitutional rights that govern persons committed after an that govern persons committed after an adjudication of not guilty by reason of insanity. adjudication of not guilty by reason of insanity. These questions are beyond the scope of the These questions are beyond the scope of the present case.”present case.”

Outpatient/CONREP:Outpatient/CONREP: ??? ???

Now What Do we Do?Now What Do we Do? Persuasion/ConsentPersuasion/Consent Obtain authorization order from court (all commitments):Obtain authorization order from court (all commitments):

Prompt request to court; copies to parties; hand-deliver or document receiptPrompt request to court; copies to parties; hand-deliver or document receipt Careful justification and documentation of requestCareful justification and documentation of request Request should follow the “staging” pattern of Request should follow the “staging” pattern of §§13701370(a)((a)(1)(F)(2)(B)1)(F)(2)(B) Follow-upFollow-up

QawiQawi “separate proceeding” to determine capacity or 5300 dangerousness “separate proceeding” to determine capacity or 5300 dangerousness Emergencies:Emergencies: §§13701370(a)((a)(1)(F)(2)(B)(vi); MDO (1)(F)(2)(B)(vi); MDO (QawiQawi); SVP (); SVP (CalhounCalhoun))

W.I.C. W.I.C. §5008(m) §5008(m) "a situation in which action to impose treatment over the person's objection "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 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 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."harm to take place or become unavoidable prior to treatment."

9 C.C.R 9 C.C.R §853: “…§853: “…a sudden marked change in the patient's condition so that action is 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 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." harm to the patient or others, and it is impracticable to first obtain consent."

SellSell alternative (LPS?): “ alternative (LPS?): “A court need not consider whether to allow forced A court need not consider whether to allow forced medication for that kind of purpose, if forced medication is warranted for a medication for that kind of purpose, if forced medication is warranted for a different different purpose, such as the purposes set out in purpose, such as the purposes set out in Harper Harper related to the related to the individual’s dangerousness, or purposes related to the individual’s own individual’s dangerousness, or purposes related to the individual’s own interests where refusal to take drugs puts his health gravely at risk.”interests where refusal to take drugs puts his health gravely at risk.”

Had Enough?Had Enough?The lawyers, Bob, know too much. The lawyers, Bob, know too much. They are chums of the books of old John Marshall. 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 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.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 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, lawyers, Bob, Too many slippery ifs and buts and howevers, Too much hereinbefore provided whereas, Too many doors to go in and out of. Too much hereinbefore provided whereas, Too many doors to go in and out of.

When the lawyers are through What is there left, Bob?When the lawyers are through What is there left, Bob?Can a mouse nibble at it And find enough to fasten a tooth in? 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 is there always a secret singing When a lawyer cashes in?Why does a hearse horse snicker Hauling a lawyer away? 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 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 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 wishes him back again. Singers of songs and dreamers of plays build a house no wind blows over. house no wind blows over.

The lawyers--tell me why a hearse horse snickers hauling a lawyer's bones. The lawyers--tell me why a hearse horse snickers hauling a lawyer's bones.

Carl SandburgCarl Sandburg

there is a right to refuse medication in forensic commitments: now what do we do? david meyer, j.d....

Documents

process of law amendment

th amendment

process clause ussc

laws amendment

person of life

forensic patients rights

person shallbe

forensic commitments