*1 918A.2d 470 DEPARTMENT OF HEALTH AND MENTAL HYGIENE
v.
Anthony KELLY. 47, Sept. Term,
No. 2006. Maryland. Appeals Court 14, 2007. March *2 (J. Ellis, Attorney Joseph General A. Assistant Kathleen Jr., and Tracee Orlove Curran, Attorney Maryland, General of Baltimore), on Fruman, appellant. of brief Attorney, Staff (Roscoe Center, Jones, Jr., Public Justice Sangree Suzanne Baltimore, Maryland Dis- Laura Cain and Irene Smith Baltimore), for appellee. on brief Law Center ability Poliak, E. Vice President Sykes, Melvin J. Joanne Medicine, Savage, Frederick Hopkins Johns General Counsel Bal- Counsel, Hopkins University, The Johns Deputy General timore, Psychiatric Society, Johns Maryland brief Hopkins and the Univer- System Corporation, Health Hopkins Amici sity, Curiae. Rocah, American Union Foundation
David Civil Liberties *3 Rich, Baltimore, Briggs Melissa John Townsend Maryland, DC, Hutchens, LLP, Washington, Procter brief Goldwin Judge of Maryland, American Union Civil Liberties Law, L. for Mental Health the National David Bazelon Center Healthcare, Na- Community Behavioral and the Council Support Health Association as Amici Curiae in tional Mental Appellee. of RAKER, *, BELL, C.J.,
Argued before WILNER CATHELL, HARRELL, GREENE, BATTAGLIA and JJ.
BATTAGLIA, J. with the of judice presents The case sub this Court task determining 10-708(g) whether of the Health-General Section (1982, Maryland RepLVol.)1 requires of the Article Code * Wilner, J., retired, participated hearing now in the and conference of Court; being case while an active member of this after recalled this Constitution, IV, 3A, pursuant participated he also to the Article Section adoption opinion. the decision and of this provides pertinent part: 1. Section 10-708 (b) may not be administered to Medication authorized.—Medication medication, except: an individual who refuses the individual, that an of his mental prove
the State because illness, is to himself or others within a state institu- dangerous may forcibly tion before it administer medication. Because we 10-708(g) hold that does so we shall affirm require, Section City. for Baltimore judgment Circuit Court
I. Introduction Anthony Kelly charged Between 2002 and four murder, offenses, capital indictments with two counts of both first-degree rape, first-degree two counts of one count of count of burglary, second-degree burglary, one two counts robbery dangerous deadly weapon, with a and one count of assault, three counts of five hundred first-degree theft over dollars, dollars, one count of theft five under hundred three violence, of the use of a in a and one handgun counts crime (1) emergency, physician In on the order of a the individual an where others; presents safety to the life or of the individual or (2) nonemergency, hospitalized In a when the individual is involun- tarily by or committed for treatment order of a court and the by approved panel provisions medication is under the of this section. (g) Approval by panel may panel.—The approve medication administration medication or medications and recommend approve panel alternative medications if the determines that: (1) prescribed psychiatrist purpose The medication is for the disorder; treating the individual’s mental (2) represents The administration of medication a reasonable exer- professional judgment; cise of (3) Without the the individual is at substantial risk of hospitalization continued because of: (i) Remaining seriously mentally significant ill with no relief of the *4 symptoms danger mental to be illness cause the individual a others; the individual or to (ii) Remaining seriously mentally significantly longer period ill for a symptoms of time with mental illness that cause the individual to be a others; danger to the individual or or (iii) Relapsing into a condition in which the individual is in inability physical resulting serious harm from the individual's provide safety. for the individual’s essential human needs of health or (1982, Maryland Repl.Vol.), Code Section 10-708 of the Health- General Article. Maryland Replacement All references to Code are to the 2005 Volume of the Health-General Article unless otherwise noted. Kelly repre- was by vehicle. handgun transporting count respect with Public Defender of the by sented the Office respect himself with indictments, represented but three of indictment. in the fourth charges to the 18, 2003, Kelly moved hearing July on During pre-trial that he would rather contending discharge attorneys, his in them. As lost confidence he had himself because represent motion, Thompson Durke G. Judge a result of this competency County held a Montgomery Court Circuit to the Kelly and referred on hearing September security psychiatric maximum Hospital, T. Clifton Perkins of Health and Maryland Department operated by hospital Hygiene, Mental for evaluation. Carr-Malone, a Fo- Rosemary by Dr.
Kelly was evaluated and Dr. Lisa Hospital, at Perkins Psychiatry rensic Fellow patients at Hovermale, developmentally with disabled a liaison evaluation, which competency Springfield Hospital. State Report, Psychiatric in a Evaluation was memorialized Pretrial 5, 2004, Kelly February and concluded completed was on thinking influenced his and his a mental disorder that had to stand trial. The competent that he was not behavior and enough to although Kelly competent was report found that him, i.e., against proceedings understand the nature faced, him, he the roles possible penalties charges against witnesses, potential and jury, attorneys, judge, the adversarial nature of options, he did not understand plea not in his defense: and could assist proceedings those of a illness. In symptoms mental Kelly malingering illness, fact, having any a mental having he denied that he had a mental suggesting or behaviors symptoms trial, to stand competent to be found Kelly illness. wanted competent. Despite Kelly’s he was and he believed that did not understand the contrary, Kelly to the statements and was unable to object system, of the court adversarial defense, by Kelly’s evidenced evaluations assist with his as and his behavior. Kel- Hospital], writings, his at [Perkins his profoundly were influenced ly’s thinking and behavior point beliefs to the grandiose delusional persecutory *5 his to interfering ability with understand the adversarial object of proceedings, by and to assist with his defense planning legal strategy making a reasoned choices. Therefore, to a degree certainty, reasonable medical Kelly the nature of the proceedings against understood him. However, object he was unable to understand the him, defense, or to proceedings against assist his due symptoms delusional derivative of a mental disorder. report Kelly also concluded that was “considered danger- ous,” “had a history because he assaultive and violent behavior,” charged and “was with serious crimes.”
Judge Thompson Kelly competent determined was not 3, 2004, to stand trial on subsequently June issued Memorandum Opinion Upon Competency the Defendant Kelly’s thinking which determined that on critical issues sur- rounding his case merited the conclusion that he “inescapable” delusional, although was and that his intentions to assist his meritorious, case were his actions had “counter-produc- been his representation.” respect Kelly’s tive to own With bail, presumed release on the court that he dangerous or himself others: may
This Court consider the release of the defendant on a bond if the defendant is deemed to as dangerous bail himself, a result of a mental disorder or retardation to others, or to the property gravity of others. Given the charges defendant, рending against say it is fair to that, if proven, charged repre- actions of the defendant public sent a risk to the of the most dangerous degree. Consequently, grants Court defendant’s counsel leave to they desire, if so request hearing, degree to determine the of dangerousness represent the defendant’s release would If is no public. request hearing, there further then dangerousness this Court will treat the issue of as having been established.
In the event the defendant is not released on due to his bail dangerousness, this Court order the commit- defendant facility ted to the that the Health Department designates until this Court is satisfied that longer the defendant no self, trial, or is no longer to stand incompetent of his mental others, of others reason property 3—106(b)(1)(2004). § condition. Md.Code Ann., Proc. Crim. *6 hearing requested regarding nor his counsel Kelly Neither Because the record any or release on bail. dangerousness his commitment, have any not other order we does include an explicit did not make Judge Thompson that assumed and committed dangerousness of finding regarding the issue to the to 3-106 of Kelly Hospital pursuant Perkins Section (2001).2 Article, Maryland Procedure Code Criminal Kelly his he During Hospital, confinement at Perkins denied disorder, for a from except period a mental six-month had antipsychotic 2004 until November did take the May 18, 2005, the August medications for him. On prescribed notified that Hygiene Kelly of Health and Mental Department reviewing eligibility Panel would his a Clinical Review 10—708(b)(2) psychiatric pursuant medication to Section forced 23, 2005, August the Article. On the of Health-General the approved Panel convened and forced Clinical Review Kelly’s of medication for treatment of delusion- administration al disorder: of are at risk you
Without the substantial [r]emaining of ... hospitalization continued beсause serious- ill no relief the mental illness ly mentally significant with provides: 2. Section 3-106 of the Criminal Procedure Article case, if, (a) Release.—Except capital hearing, in a after a the court incompetent stand trial is not finds the defendant is but person or dangerous, as a result of disorder ... to self the mental others, may property set or or court bail for defendant recognizance. authorize of the defendant on release If, (b) Commitment.—(1) hearing, finds after a the court that the and, incompetent trial because of ... a mental defendant is disorder, to stand another, danger person property is a to self or the or facility court order the defendant committed to designates Department Health until the court is satisfied that the is, longer incompetent longer or no defendant no stand trial disorder, person because of ... a mental to self or the property of others. (2001), Maryland Arti- Code Section 3-106 Criminal Procedure cle. symptoms that you cause to be a danger yourself or to others ... or ... [remaining seriously ill mentally for a significantly longer period time with mental illness symp- toms that you cause a danger yourself or to others. Kelly appealed the Clinical Review Panel’s decision to the Office of Administrative Hearings, and during hearing ALJ, before the testimony was taken from Dr. Wisner-Carl- son, Kelly’s treating physician at Perkins Hospital, on behalf Department, Kelly’s who addressed delusional disorder that formed the basis for incompetency evaluation and for the decision to forcibly administer psychotropic drugs:
DR. WISNER-CARLSON: He suffers from delusional dis- order, persecutory and grandiose type.
[COUNSEL FOR you And can DEPARTMENT]: describe exactly what that means?
DR. WISNER-CARLSON: Sure. Delusional disorder is a disorder____ psychotic A psychotic disorder is an illness terms, where the person, lay is оut of touch with reality way. some disorder, And the—and in delusional the main aspect of delusional disorder is that person has a A fixed, false, delusion. delusion is a idiosyncratic belief. they So have about, some fixed belief about the world or you know, something going on with them. disorder,
For delusional the delusion is different than other disorders, psychotic such schizophrenia, as in that the delu- sion is non-bizarre. And what that means is that thing person that the believes generally could happen. So that when one is evaluating person to make—in considering the diagnosis disorder, of delusional one has to check a lot of collateral information to determine whether this is a normal belief or whether this is a pathological belief that falls in this realm of delusion.
[COUNSEL FOR you Could give DEPARTMENT]: us some specifics regarding Mr. Kelly’s delusion that he has? He’s under treatment Sure. DR. WISNER-CARLSON: faded, think. now, of the delusions have we and so some degree. to the same he seem hold them But—and doesn’t had, that he delusions he diagnosis, making But in the represent against that himself cases he could believed cases, according to his attor- him, and which were serious and could dropped that were that wouldn’t be ney, charges him. And he wished penalty in the result death as a forward the case put himself and himself represent a conspiracy; that he that there is litigant, saying se felt pro that she had lied lawyer part conspiracy; his was that occasions; that she had lied to him on a number warrant; secret search particular him in about so-called it from the State’s inappropriately that she had gotten plea told him about a Attorney; supposedly that she had charges for all bargain cap would sentence ways represented had in years; six and he different judge, appeared delusional. her and the which distrust supеrvisor. He her He Judge. wrote to wrote to He can’t recall the name oversight to the board—I legal wrote her. in different of these about And it—complaining letters, that she involved made statements he felt him; against in a that she was— conspiracy you she say When DEPARTMENT]: FOR [COUNSEL her, talking judge lawyer? are about the you sorry. I’m His lawyer, DR. WISNER-CARLSON: lawyer. *8 Okay. DEPARTMENT]: FOR
[COUNSEL I’m sor- Mary Siegfried. DR. And WISNER-CARLSON: judge his a man and the ry, lawyer, prosecutor she’s is a man. you. Thank FOR
[COUNSEL DEPARTMENT]: If helps. DR. WISNER-CARLSON: Yes. FOR [COUNSEL DEPARTMENT]: DR. that she was with engaged WISNER CARLSON: And trying in him found Attorney get guilty the State’s getting him prosecuted and fabricating evidence and the like.
* * that, And that is many examples is—there but that’s basically gist of the persecutory delusions that he had. delusions, He also has—or has had grandiose and those his—-well, delusions refer he felt that he represent could himself at the trial.... adequately And he has felt very competent ability represent his himself this ex- matter, tremely serious even it has though explained been to him every that not lawyer public defender’s office would given opportunity to represent him in such a case, that a special legal it’s team that does it.
And he bases that on these legal courses and on his kind of history, goes which years back number of of what he calls a jailhouse lawyer, in making motions to the court and giving advice to other inmates and this sort of thing. degree And the to which he has previously held those beliefs, although part better, this seems a little is—was felt by a number of psychiatrists and the court to raise to the degree of being a delusion.
* Hi * So he—and so he doesn’t have the cognitive abilities—or he doesn’t schooling. have the He also doesn’t have cogni- tive abilities. He was borderline on intelligence testing, but also on special neuro-psychologic testing he has a cognitive disorder, special problems in reading, and so he—so it’s felt that he has a cognitive ability to pursue—to be the CEO of a company and to a successful businessman in that way. plus And he doesn’t have the vocational history. But he continued—he has continued to uphold those ideas to a delusional degree. And interestingly enough, with treat- ment, he’s a lot of released those ideas. *9 have Kelly Mr. FOR Does DEPARTMENT]:
[COUNSEL him in the against or delusions evidence regarding ideas any criminal trial? it has in felt that past He
DR. WISNER-CARLSON: Dr. Carr-Ma- inadequate. fabricated and Per was both evidence, report, reviews the State’s which pre-trial lone’s He that is false DNA evidence. feels supposedly there is eyewit- is that he—some There other evidence inadequate. other crimes, rape. for the There is for one of ness evidence, that is evidence, layperson that—to physical me, substantial, it to the fairly and does to seems lawyer felt that all of that evidence And he has psychiatrists. other out thrown of court. would be recently
Indeed, attorney, with his recently he has met June, he to her and has indicated beginning in the being represent that it be beneficial] that time would [not case, that with me in a letter in the and he shared himself him, Siegfried has written him—Mary she has written urges legal him to have strongly in that letter she that dropped said case won’t be She that the counsel. it in the very could result charge serious and penalty. death Kelly Mr. DEPARTMENT]: FOR And has
[COUNSEL that he statements whether he believed any regarding made criminal successful in himself this representing would be case? Previously very com-
DR. he’s felt WISNER-CARLSON: himself, and that he could representing thought fortable repre- especially himself. He felt that he could represent More dropped. because would charges sent himself it, spoken I had to him about recently, yesterday as when accept charges more won’t willing he seems that he go and that the could well forward and dropped case him, if the attorney represent rather have an but that would then he feels appoint attorney, court won’t a different representing himself. comfortable
* * * *10 [Kelly] is argumentative, litigious, said, like I peevish; will lawsuits, often file numerous complaints, grievances, this thing, sort of and will sodo when there doesn’t seem to be merit; when—will continually re-file the complaint even though when its whatever, reviewed the court or reviewing agency, felt, it will be thrown out or to again, not have merit. repeatedly has complaints
[H]e made public about his de- fender, about the State’s Attorney. the judge, He’s—about to the different agencies, review supervisors. their He was—when he first came in hospital up maybe three or ago, four months repeatedly filing was lawsuits to County Howard Circuit Court about complaints various he had about staff or hospital, and all of these were discharged, not merit. having In response question concerning whether Kelly was a danger others, to himself or to Dr. opined Wisner-Carlson that Kelly to others adjudi- because “he’s been cated as a dangerous person by a judge.” On cross-examina- tion, Dr. Wisner-Carlson could not point any in- specific stances of dangerous behavior within the Kelly’s context of confinement, that testifying Kelly has “not threatened or anyone assaulted while he’s been in Hospital]. He’s [Perkins not been in seclusion or restraints. He’s not been on any special observation. And he’s any special not had intervention regards assaultiveness or the like.”
Kelly ALJ, testified before the iterating that he did not illness, have a mental delusions, did not suffer from was dangerous, perfect had a patient record at Hospital, Perkins and was competent to stand trial. He emphasized that he had taken which was not beneficial and caused detri- mental side effects: you’re that you Do believe KELLY]: FOR
[COUNSEL time for the trial at this to stand you’re able competent, you? against charges to stand competent I’m percent, hundred
KELLY: One trial. have you Do you believe KELLY]: FOR
[COUNSEL illness? mental I suffer illness. don’t mental any I have
KELLY: don’t from delusions.
[*] [*] [*] *11 agreement in you And are KELLY]: FOR [COUNSEL time that has particular at this the medication taking with by Dr. Wisner-Carlson? prescribed been No, medicine---- I don’t like the KELLY: experienced ever you Have KELLY]: FOR [COUNSEL from the medication? effects any side I it. One time I Dr. Carlson about Yes. And told KELLY: and told shakes, I the nurse’s station and went to had the stop I shakes. couldn’t that I had the midnight them called the breathing. And she difficulty I had shaking and to take.... told me other doctor—and doctor—called some like sweating But I was away. went the shakes That’s when water, what, and the room was running like I know don’t cold, also. that the medi- you Do believe FOR KELLY]:
[COUNSEL any way? in helped you have cations really. KELLY: Not medi- that the you Do believe KELLY]: FOR
[COUNSEL any way? you have harmed cations KELLY: Yes. you
[COUNSEL FOR And how do KELLY]: believe they you? have harmed
KELLY: Because the side effects can damage your do your blood, liver and sugar, your and all of—it just sorts messes everything up.
The ALJ that Kelly concluded suffered from a delusional disorder and that the medications were prescribed purpose treatment: evidence this case is that the alleged delusions circle
around Kelly’s Mr. belief that his attorney working was him, against him, that the judge working against his attorney, Siegried, Ms. had violated of provi- number sions that violated, she should not have such as privileged communication, allegedly some reference to a secret war- rant, that Siegfried passed Ms. had on documents or re- ceived documents from the prosecutor, and had on passed documents to Dr. Wisner-Carlson.
* * * I find that Dr. Wisner-Carlson’s diagnosis of delusional is, fаct, reasonable, disorder supportable diagnosis. Next, I have to determine whether pre- medication scribed Dr. Wisner-Carlson has proscribed been for the purpose treating delusional disorder. Dr. Wisner-Carl- credibly son has testified that the medical sup- authorities port treatment of delusional through disorder medication. *12 He has also testified that other psychiatrists in this hospital believe that it is—delusional disorder is through treatable these medications.
Therefore, I find that his testimony, that the medication was prescribed for the purpose treating a mental disor- der, to supported by the evidence. The evidence is also undisputed that Mr. Kelly has refused the psychiatric medi- cations that are listed the Clinical Review Panel’s deci- sion— I find that the administration of repre- medication sents exercise of professional judgment. potential with a discussion Kelly provided was
Mr. for the exhibition has been monitored He side effects. he did testified that Although Kelly Mr. side effects. those unwell, I do have feeling when he was night have one or those conditions feelings that those indicating testimony Moreover, Kelly Mr. was to the medication. were related van- those health conditions Tylenol, two able to take ished. effects are so then, I that the side do not believe
Clearly profession- exercise of it an unreasonable as to make severe Kelly. to Mr. these medications to administer judgment al some of Moreover, has testified that Dr. Wisner-Carlson treat- dissolving to be after appear Kelly’s symptoms Mr. medication, my conclusion supporting further ment of this represents of medication a reason- that administration judgment. of professional able exercise 10-708(g)— of Section respect requirement to the last With risk Kelly was at substantial without the whether rеmaining seriously hospitalization of continued because of the mental illness significant ill with no relief mentally to the individual or danger that cause him to be a symptoms judge circuit court had deter- found that the others—the ALJ or others and that Kelly to be a himself mined permit forcible medication: determination was sufficient hospital is whether the has issue that has been raised The criteria, necessary specifically dangerous- all the established presented testimony Kelly The has Mr. hospital ness. a dangerous person to be a as result of adjudicated Judge. That decision is 38-page decision Circuit Court recent, whether the question hospital thus the becomes Kelly dangerous whether Mr. as of is found establish this time. involuntary requires commitment regarding
The statute regarding statute re- dangerous. of current evidence has been under court review. fusal of forced medication years ago several issued Special Appeals The Court dangerousness saying determination—issued a decision *13 414 10-708, dangerousness
had to be current for as to as well voluntary a admission as of the statute. part by Special Appeals That decision the Court of was vacated. Therefore, rely any I cannot it as upon legal authority Maryland determine that in this statute evidence of requires current dangerousness.
* * * no case law Maryland interpreting There is Section 10-708 I regard dangerousness. with to the term current And law, find that the absence of such case that it is reason- able, interpretation rely it is a reasonable for me to on the Court, previous dangerousness determination the Circuit was a clearly lengthy, which detailed decision made after a lot of presented evidence was to the Court. my
Based on I conclude as a of law that findings, matter a hospital by preponderance has shown of the evidence that M r. should Anthony Kelly psychiat- be medicated with the ric for period medication listed above not to exceed 90 days.
Kelly sought judicial findings review of the ALJ’s of fact City, and conclusions law the Circuit Court for Baltimore also for a stay pending moved forced medication merits, At hearing, hearing which was denied. on the that Kelly’s argued counsel the record before the ALJ was support finding dangerousness, insufficient of current a predicate which she contended was for forced medication 10-708(g). Department under Section of Health and Hygiene, conversely, upon opinion Mental relied of the that Montgomery County, contending Circuit Court Kelly finding dangerous the time he was commit- forcibly hearing ted was sufficient to medicate. After argu- reviewing ments from counsel and of the admin- transcript Matricciani, Jr., hearing, Judge istrative Albert J. City, Circuit Court for Baltimore reversed the decision of the upon Special ALJ based the Court of decision in Appeals’s v. Department Martin Health and Mental 114 Hygiene,
415
243,
moot,
as
348 Md.
A.2d
vacated
Md.App.
of forcible
(1997),
purposes
which held
A.2d
*14
medication,
of the Health-
10-708(g)
of
Section
administration
involuntarily
an
com
evidence that
requires
Article
General
others
to himself or
danger
individual
is a
mitted
he has
facility which
of his confinement within the
context
committed,
release.3
society upon
rather than to
been
City provided:
for Baltimore
3. The Order of the Circuit Court
appeal
having
as an on the record
This matter
come before the Court
September
Judge dated
of the Administrative Law
from the decision
1, 2005,
arguments
having
of counsel
the Court
heard
transcript
proceeding before the Administrative
reviewed the
of the
November, 2005, by
Court
Judge,
day
9th
the Circuit
Law
it is this
20,
City,
of the
Part
ORDERED that the decision
for Baltimore
1,
Judge
Sеptember
2005 is REVERSED
Administrative Law
dated
reasons stated below.
for the
Ann.,
interpretation
Health
appeal
This
turns on the
of Md.Code
Art.,
(2005 Repl.Vol.
Suppl.)
§
& 2005
which sets
General
10-708
by
Maryland
which an individual involun-
forth the bases under
law
facility may
involuntarily
tarily
psychiatric
committed to a state
present
approved
In the
case the ALJ
the determination
medicated.
Anthony Kelly,
patient
panel
that
a
at the
of a clinical review
medicated,
Institution,
forcibly
being held in
Patuxent
could be
while
charges.
incompetent
serious criminal
a status of
to stand trial on
Kelly’s appellate
argued
counsel
that the record before the ALJ was
dangerousness,
support
finding
to
a
of current
which she
insufficient
necessary predicate
approval of forced mediation
contended is a
Maryland’s statutory
Department
&
under
scheme. The
of Health
evidence,
Hygiene
upon
which
a
Mental
relied
the record
contained
County
Judge
finding by Montgomery
Circuit Court
on the issue of
a
Kelly
incompetent
dangerousness, at the time that
was committed as
trial, prior
to stand
to his institutionalization at Patuxent.
analysis
persuaded
presented
of the
This Court is
on the issue
Special Appeals Maryland
case of
panel of the Court of
in the
520,
Hygiene, Md.App.
691
Dept.
Martin v.
Health & Mental
114
(1997),
require
§
interpreting
to
evidence that an
A.2d 252
10-708
involuntarily
danger
or others in
committed individual is a
to himself
admitted,
involuntarily
facility
rather than
to which he has been
society
persuaded
generally upon
to
release. This court is
his
involuntary
interpretation Maryland's
medication
that is a correct
Although
judgment
Special Appeals in
statute.
of the Court of
ultimately
ground
on the
Martin was vacated and
dismissed
mootness, following per
Appeals, 348
curiam order of the Court of
(1997),
may
persua
reаsoning
constitute
Md.
Did the circuit court err Section Department Article to show require Health-General himself or to involuntary patient that an forcibly facility patient in the before the others when, will remain patient medicated without hospitalized indefinitely? 10-708(g) prove the State requires
We hold
Section
*15
to a state institution
involuntarily
that an individual
committed
is,
illness,
to himself or
dangerous
of his mental
because
in
confinement within the institution
others
the context of his
it
administer medication.
may forcibly
before
520,
252,
Martin,
Md.App.
Special
at
691 A.2d at
the Court of
In
10-708(g)(3)(i) permits forcible medication
Appeals held that Section
individual,
only
danger
to himself or
if the
without
is
facility
considering
he is confined. After
the fact
others in the
in which
tense,
present
and not the
that Section 10-708 was enacted in the
tense,
required
prove the individu-
which would have
the State to
future
released,
community
danger
general
the
al would be a
to the
if
interme-
dangerousness requirement
appellate court considered the
in
diate
statutory
involving involuntary
conjunction
provisions
with the other
527-28,
II. Discussion The Department forcibly Kelly contends that medicate 10-708(g), only prove under Section required State that he substantial of hospitalization is at risk continued ill mentally poses because he and that he seriously remains released, community to himself or others in the if which they argue proven diming hearing commitment adopt 2004. Department Kelly’s also contends that to that an must reasoning involuntarily committed individual dangerous in the context of confinement to involun order tary provi medicate render Clinical would Review Panel sions of 10-708(g) meaningless light Section of surplusage 10—708(b)(1)5 10-701(c)(3)(i)4 the interplay of Sections Article, permits Health-General which administra forcible tion of in an Depart medication to the emergency. According ment, Kelly’s interpretation would eviscerate 10-708 Section because an who individual is at substantial risk of continued treatment, hospitalization could refuse medication absent a finding dangerousness, current even though involuntary his dependent prior commitment was upon finding dangerous ness.
Kelly, conversely, argues legislative history sup- ports his interpretation 10-708(g) forcibly Section involuntarily individual, medicate an committed the State is required prove that the is a individual substantial risk of hospitalization continued he because exhibits of a symptoms mental illness that cause him be a danger to himself or others in the context his confinement within state *16 Kelly institution. also a dangerousness maintains that finding made during a prior proceeding equivalent commitment is not 10-701(c)(3)(i) 4. provides patient Section that a is to be entitled free from emergency restraints or “locked door seclusions” unless in an patient “presents where safety danger a to the life or individual or of others.” 10—708(b)(1) 5. Section forcibly states that medication adminis- emergency, physician "[i]n tered an on the order of a where the presents danger safety individual a to the life or of the individual or others.” 418 forcibly finding needed to thereafter dangerousness
to the Moreover, argues 10-708(g). Kelly under medicate Section various implicate would Department’s interpretation that the right speech.6 to freedom of rights, including constitutional physician properly a cannot undertake Ordinarily, situations, in an individu any nonemergency without therapy, 438-39, 432, Hardy, Md. al’s informed consent. Sard v. 281 (1977). 1014, right to refuse 379 The individual’s A.2d 1019 of includes the administration medication. medical treatment 809, Wilzack, 494-95, 573 A.2d v. 319 Md. Williams (1990). liberty interest embody These an individual’s rights bodily Id. integrity. (b)(2) pro- Article 10-708 the Health-General
Section rule, general permitting the State exception vides an right by to refuse medical overrule an individual’s treatment “a administration of medication permitting forcible is hospitalized the individual involuntari- nonemergency, when a court for treatment order of ly committed a of this approved by provisions is under the panel medication Panel to methodology section.” The for the Clinical Review medication efficacy determine the forcible administration it deter- provided by 10-708(g), requires is which that Section to treat prescribed by psychiatrist mine the medication disorder, that repre- the medication the individual’s mental professional judgment, sents a reasonable exercise of medication, the a substantial risk of without the individual is hospitalization patient, because continued (i) ill no relief seriously mentally significant with Remain[s] mental cause the individual symptoms illness others; be a to the individual or ground, case we will 6. we this on a non-constitutional Because decide posed. v. Bd. not decide the issues See Piscatelli constitutional Comm’rs, 623, 629-30, Liquor A.2d 935 n. 2 Md. License that, (2003) Maryland, principle "that (stating it is a well established properly issue when a case can court will not decide constitutional ground”). disposed of on a non-constitutional
419 (ii) ill mentally seriously significantly longer Remain[s] period symptoms of time with mental illness that cause the others; danger to to or to or individual be a the individual (iii) in in Relaps[es] into condition which the individual is harm from physical resulting serious the individu- inability al’s to human provide the individual’s essential safety. needs of health or involuntarily
Three different committed categories individu- als may forcibly 10-708(g): medicated under Section indi- viduals to a involuntarily civilly committed state institution 10-632(e) Article; under Section of the Health-General indi- viduals involuntarily committed after been found not having criminally responsible under Section 3-112 the Criminal Article, (2001); Maryland Procedure Code individuals involuntarily committed being incompetent after found 3-106(b) stand trial under Section the Criminal Procedure Article, (2001), Maryland Respondent such as Code herein.
The critical us presented issue is whether order forcibly medicate Section is 10-708(g), under State re- that, illness, quired to show because of a mental an individual involuntarily to a committed state institution is dangerous himself or others in the cоntext of his confinement within the institution, was, only state or that the individual be if would released, dangerous general to himself or others com- munity.
The general principles statutory interpretation established, are identify well as our is to goal and effectuate the legislative underlying intent the statute. v. Oakland Park, 301, 316, Mountain Lake 392 1036, Md. 896 A.2d 1045 (2006); R, 51, re 57, 136, In 362 Anthony Md. 763 A.2d 139 (2000). Legislature’s intent, To ascertain the we first examine plain statute; language of the if the is language unambigu ous when its according construed then ordinary meaning, we will Oakland, effect to the as it “give statute is written.” 316, 392 1045; 315, Md. at 896 A.2d at Pak Hoang, v. 378 Md. 323, (2003), 835 A.2d 1189 Moore v. 372 quoting Miley, 663, 677, (2003). Md. If A.2d a statute’s language has than however, more one interpretation, reasonable any ambiguity we will resolve ambiguous,
language
*18
caselaw,
statutory purpose.
history,
light
legislative
of
1045;
v.
Oakland,
316,
Comptroller
at
The General 10-708(g), dangerousness for the determination of Section i.e., past dangerousness, dangerousness it is whether institution, danger- future in a state or context confinement medication trigger that is the salient forcible ousness subject 10-708(g) illness. Because Section treat a mental therefore, is, and we ambiguous, it multiple interpretations, in- Legislature’s to illuminate legislative history look to Oakland, Md. at 896 A.2d 1045. tent. 1372,7 legislative attemрt Bill the first address
House Individu “Mentally entitled issue of forcible Medication,” mentally “that a initially provided als—Refusal of provided: 7. House Bill 1372 ASSEMBLY OF BE IT ENACTED BY THE GENERAL SECTION 1. 10-712, MARYLAND, Section(s) through respectively, of That 10-708 Maryland be Code of
Article—Health—General Annotated 10-713, Section(s) through respectively. 10-709 renumbered ENACTED, BE IT That the Laws SECTION 2. AND Mainland as read follows: Article—Health—General 10-708. Hygiene ill individual in a Mental facility may refuse medi- a mental cation the treatment of disorder emer- except gency physician situations when the orders the medication because of to the life or to the safety individual others, or if is hospitalized involuntarily the individual or by
(A) AN INDIVIDUAL IN A FACILITY MAY ELECT TO REFUSE MEDICATION USED FOR THE TREATMENT OF A MENTAL DIS- ORDER EXCEPT: (1) WHEN THE MEDICATION IS PROVIDED ON THE ORDER OF A PHYSICIAN IN AN EMERGENCY WHERE THE INDIVIDUAL PRESENTS A DANGER TO THE LIFE OR SAFETY OF THE INDI- OTHERS; VIDUAL OR OR (2) SITUATIONS, IN NONEMERGENCY WHERE THE INDIVIDU-
AL IS HOSPITALIZED OR BY OF A INVOLUNTARILY ORDER COURT THE AND MEDICATION IS APPROVED BY A CLINICAL *19 REVIEW PANEL. (B) (1) THE CLINICAL REVIEW PANEL CONSISTS OF THE FOL- LOWING MEMBERS APPOINTED BY THE MEDICAL DIRECTOR: (1) THE MEDICAL DIRECTOR IF THE MEDICAL DIRECTOR IS A PHYSICIAN OR A PHYSICIAN DESIGNATED BY THE MEDICAL DIRECTOR; (II) PSYCHIATRIST; A AND (III) A NONPHYSICIAN MENTAL CARE HEALTH PROVIDER. (2) ONLY THE 1 MEMBER OF CLINICAL REVIEW PANEL MAY BE DIRECTLY RESPONSIBLE FOR INDI- IMPLEMENTING THE VIDUALIZED TREATMENT PLAN FOR THE UNDER INDIVIDUAL REVIEW. (C)(1) IN DETERMINING WHETHER TO APPROVE THE MEDI- CATION, THE CLINICAL REVIEW PANEL SHALL: (1) RECORD; THE REVIEW INDIVIDUAL'S CLINICAL (II) CONSULT WITH THE FACILITY PERSONNEL WHO ARE RE- SPONSIBLE FOR IMPLEMENTING THE INDIVIDUAL’S TREAT- PLAN; MENT (III) CONSULT WITH THE INDIVIDUAL REGARDING THE REA- MEDICATION; SONS FOR REFUSING THE (IV) REVIEW THE INDIVIDUAL’S CAPACITY TO MAKE DECI- TREATMENT; SIONS CONCERNING AND (V) REQUIRING CONSEQUENCES REVIEW THE POTENTIAL OF THE TO INDIVIDUAL ACCEPT THE MEDICATION AND OF WITH- HOLDING THE MEDICATION FROM THE INDIVIDUAL. (2) THE CLINICAL REVIEW PANEL NOT MAY APPROVE THE MEDICATION WHERE THERE ARE ALTERNATIVE TREATMENTS THAT ARE ACCEPTABLE TO BOTH THE INDIVIDUAL AND FA- CILITY PERSONNEL ARE WHO DIRECTLY RESPONSIBLE FOR IMPLEMENTING THE INDIVIDUAL’S TREATMENT PLAN. ENACTED, AND SECTION 3. BE IT FURTHER That Act this shall July take effect 1984. (1984). House Bill 1372 aby clinical approved is of a court and medication
order Services, Fiscal Fiscal Note panel.” Department review (1984). criteria for It certain Bill also established House a treat implementing to follow for panel review the clinical and for the under review for certain individuals plan ment Id. patients. for certain use of medication approval and as reflect Hollinger Paula C. by Delegate Bill was described to determine what patient’s right the “balance between ing duty professional’s ... and a body, into or her ingested is his treatment,” by Eugene the best available provide Bureau, as Aid Kowalczuk, Attorney Legal for The Chief addressing of the individual while the interest “protecting] Testimony of facility Written personnel.” concerns of the Bill Before the Hollinger on House Paula C. Delegate Committee, 1984; on March House Environmental Matters Kowalczuk, The Legal Eugene Attorney, Chief Letter from Chairman, Bureau, House Larry Young, to Honorable Aid 1984). (March 7, House Matters Committee Environmental enacted, 1,1984, 1372, modified, July took effect on Bill as 10-7088 Health General was codified as Section Article, providing pertinent part: medication;
(a) individ- Election exceptions.—An refuse used for the facility elect to refuse medication ual except: of a disorder treatment mental situations, (2) the individual In where nonemergency *20 and the involuntarily by order of a court hospitalized panel. by a clinical review approved medication * * * (c) In Approval medication panel.—(1) determining panel the clinical review approve whether shall: 1984, Article was 10-708 of Health-General
8. Prior to Section access,” did not involve forced medication. “Director's entitled Article was moved to Section 10-712 of the Health-General The section Laws, Chap. Md. 480. pursuant House Bill 1372. 1984
423 (1) record; Review the individual’s clinical (ii) who facility personnel Consult with are responsible the individual’s treatment implementing plan; (iii) Consult with the individual reasons for regarding the medication; refusing the
(iv) Review the individual’s con- capacity make decisions treatment; cerning
(v) potential Review consequences requiring indi- accept vidual to and of withholding medication medication from individual.
(2) The review panel approve clinical the medi- cation where there are alternative treatments are acceptable to and facility personnel both individual who are directly responsible for implementing the individual’s treatment plan. Laws, 480,
1984 Chap. (1982, Md. codified as Maryland Code 10-708(c) Supp.), 1989 Section of the Health-General Article.9 Section unchanged 1991, 10-708 remained until after introduced, House Bill 588 had been when the General Assem bly extensively modified it opinion as a result of our Williams, 485, 809, 319 atMd. 573 A.2d at to provide addition al procedural process10 and substantive safeguards due individuals receiving forcible medication: 1372, 1982, 9. Before the enactment House Bill in November of "the Administratiоn, DHMH, Hygiene Mental issued 'Interim Guidelines for Psychotropic the use of Medication in State Mental Health Facilities’ to provide physicians legally in State acceptable facilities with standards patient objects follow when a to treatment.” Letter from Fran Director, Tracey, Relations, Legislative, Office of Volunteer and Public Rasmussen, Chairman, to Honorable Dennis F. Senate Finance Com- 6, 1984). (April provided mittee general House Bill 1372 "the same protection patient” for the afforded under the Interim Guidelines. Id. process safeguards 10. Procedural due requiring have been as described "both opportunity notice and an to be heard on the issues to be decided case,” of Md., 93, in a Square Blue Cross Hosp., Inc. v. Franklin 277 Md. 101, (1976), 804 rights A.2d process while substantive due fair, require legislation "arbitrary, to be oppressive and not or unrea Hargrove sonable.” System, v. Bd. Trustees Md. Retirement 406, 427, (1987). Court, Md. 529 A.2d Supreme *21 424 Wilzack, v. Williams 1990, 319 Appeals,
In
the Court
(1990),
485,
that the clinical review
Without dangerous indi- medicating before order guardianship however, in- Guardianship, who refuses medication. vidual may present which not be finding incompetence, volves involving in all refusal medication. cases involuntarily patients committed have found The courts some, limited, process. if due The bill are entitled in ac- protection and substantive provides procedural both case cordance with law. Committee, Proceedings Analysis Bill Judicial
Senate (1991). Bill Initially, Bill when House 588 House 588 introduced, could in relevant that the State provided part, it if, an forcibly only medicate individual MEDICATION, THE IS THE INDIVIDUAL WITHOUT HOSPITAL- AT RISK OF CONTINUED SUBSTANTIAL IZATION BECAUSE OF: ILL MENTALLY WITH
A. REMAINING SERIOUSLY ILL- THE RELIEF OF MENTAL NO SIGNIFICANT NESS; ILL FOR MENTALLY
B. REMAINING SERIOUSLY TIME; PERIOD OR LONGER OF A SIGNIFICANTLY 210, 1028, 178 Washington Harper, U.S. S.Ct. 108 L.Ed.2d v. 110 (1990), procedural process due in the frame- substantive and discussed case: of a medication work forcible case, issue is what of this the substantive Restated in the terms exist the State administer circumstances must before factual will; procedural against his antipsychotic drugs prisoner to the nonjudicial mechanisms used to deter- is whether the State’s issue particular in a case are sufficient. mine facts at 197. Id. at 110 S.Ct. L.Ed.2d *22 A C. RELAPSING INTO CONDITION IN WHICH THE INDIVIDUAL IS IN DANGER OF SERIOUS PHYSICAL HARM RESULTING FROM THE INDIVID- UAL’S INABILITY THE TO PROVIDE FOR INDIVIDU- AL’S ESSENTIAL HUMAN HEALTH NEED OF OR SAFETY. (1991) (Introduced
House Bill February and read: 1991). introduction, Subsequent its pro amendments were posed by the Maryland Psychiatric Society, and On Our Own Maryland, Inc., organization statewide representing peo who ple psychiatric had been hospitals, which was critical of language broad,” the initial bill as “much too further complaining that “some patients by their diagnosis of a chronic alone, mental illness e.g., depressive illness; chronic will meet this standard.” Testimony Written In Support of House Bill Amendments, 588 with On Our Own of Maryland.11 The Maryland Psychiatric Society proposed the amendment which provided the basis for the language of Section 10-708(g), permitting the forcible administration if, of medication only medication, without the the individual is at substantial risk of hospitalization continued because of: Maryland’s
11. On Our proposed Own of amendment to House Bill 588 provided if, forced medication would be available without the individual were to be at substantial risk of continued of, hospitalization because A. REMAINING SERIOUSLY MENTALLY ILL WITH NO SIGNIFI- CANT RELIEF OF THE MENTAL ILLNESS OR REMAINING SERI- OUSLY MENTALLY ILL FOR A SIGNIFICANT LONGER PERIOD TIME; OF AND B. THE INDIVIDUAL IS COMMUNICATING IRRATIONALLY OR IS IN DANGER OF SERIOUS PHYSICAL HARM RESULTING FROM THE INDIVIDUAL’S INABILITY TO PROVIDE FOR THE INDIVIDUAL’S ESSENTIAL HUMAN NEEDS OF HEALTH OR SAFETY; OR C. RELAPSING INTO A CONDITION IN WHICH THE INDIVIDU- AL IN DANGER OF SERIOUS PHYSICAL HARM RESULTING FROM THE INDIVIDUAL’S INABILITY TO PROVIDE FOR THE INDIVIDUAL’S ESSENTIAL HUMAN NEED OF HEALTH OR SAFETY. Testimony Amendments, Support
Written In of House Bill 588 with On Maryland. Our Own of MENTALLY ILL WITH
A. REMAINING SERIOUSLY THE ILL- RELIEF OF MENTAL NO SIGNIFICANT THE NESS WHICH CAUSE INDIVIDUAL SYMPTOMS OTHERS; BE A TO OR [OR] TO DANGER SELF ILL FOR B. MENTALLY REMAINING SERIOUSLY TIME A OF SIGNIFICANTLY LONGER PERIOD SYMPTOMS WHICH WITH MENTAL ILLNESS BE A TO THE TO DANGER CAUSE INDIVIDUAL SELF OTHERS. OR Amick, Society, to Maryland Psychiatric from John S.
Letter (March 1991). Chairman, Judiciary House Committee Analysis Bill Committee’s Proceedings Senate Judicial *23 to Bill described the bill’s extensive modifications House 588 due procedural process protections and substantive provide committed involuntаrily individuals: to the procedural safeguards The include: advance notice convened, panel a clinical review will be individual that attend, evidence, present ques- to ask right the including tions, advisor; appeal to the Office lay and be assisted a approves if the the admin- Hearings panel of Administrative istration of medication. panel spe- the to make provisions require
The substantive
medication,
mil
person
that without the
findings
cific
and will continue
longer period
hospitalization
require
of
and
to be a
to
others.
danger
self
Committee,
of
Analysis
Bill
Proceedings
Judicial
Senate
added).
(1991) (emphasis
House Bill 588
enacted in 1991 were
provisions
The Clinical Review Panel
1993,
30, 1993,
in
but were extended
set to terminate June
170,
Laws,
1,
Bill
1995.
Md.
July
House
1993
pursuant to
Floor
Judicial Proceed-
Chap.
Report
135. The
Senate
in
holding
referred
v. Wil-
ings Committee
Williams
809,
zack,
485,
and
that the
repeated
at
573 A.2d
319 Md.
in 1991 was:
change
basis
the extensive
in
regarding forced medication was enacted
Current
law
Wilzack,
v.
Md.
Substantive due now require panel specific medication, tо make findings that without the indi- require longer vidual will period hospitalization and will continue be a to himself and others. Committee,
Senate Judicial Proceedings Report Floor on (1993). Bill also, House Legislature rejected again, any requirement that the State also must prove incompetent individual is to make medical decisions before forcibly administering stating obtaining court order of guardianship after a finding incompetence option was an to avoid the Clinical Review Panel process, but could not be required incompetence because present “is not every case that involves a refusal of medication.”12 Id. Wilzack,
In Williams v.
the noted
linchpin
the 1991
revision,
10-708,
we held that
Section
as in effect in
*24
facially unconstitutional because it “did not afford the requisite
procedural
process
due
protections” for the forcible adminis
tration of medication to an involuntarily
individual,
committed
explored Supreme
and
including Harper, 494
precedent,
Court
210,
1028,
U.S. at
110
Mills v.
178,
S.Ct. at
and (1982), L.Ed.2d 28 and concluded that an individual must be notice of provided any proceedings with advance before present to panel, right present, clinical review the be evidence, hearing, witnesses at the as well as cross-examine of an advisor understands to have the assistance who Williams, 509, at issues involved. 319 Md. 573 psychiatric Williams holding at 821. -in rested on Although A.2d process grounds, Judge Murphy, due Chief Robert procedural Court, process due writing for the considered substantive in light Supreme 10-708 Court’s implications Section 210, 1028, Hаrper, at at decision 494 U.S. 110 S.Ct. 108 L.Ed.2d at 178: protection law
rights
subject
could be
to broader
under state
than
under federal law:
practical
procedural
both the substantive
issues are
As a
matter
theory
might
questions
with
of state law.
a court
intertwined
In
patient’s federally protected liberty
scope
define
of a
able to
so,
Having
might
state law.
it then
interest without reference to
done
by
adjudicate
procedural protection required
proceed to
Due
purposes of
Process Clause for the federal interest alone. For
deter-
however,
mining
rights
obligations,
questions of
actual
state law
system
rights
our federal
the substantive
cannot be avoided. Within
by
only
provided
the Federal Constitution define
a minimum. State
may recognize liberty interests more extensive than those
law
inde-
so,
protected by
pendently
the Federal
If
the broader
Constitution.
protections
rights possessed
the actual
state
would define
substantive
by person living
that State.
within
299-300,
2448-49,
(citations
73
22-23
102 S.Ct. at
L.Ed.2d at
Id.
omitted).
Romeo,
2452,
Youngbergv.
In
457 U.S.
102 S.Ct.
L.Ed.2d 28
14.
(1982),
involuntarily
Supreme
held that an
Court
individual
com-
protected
possesses
liberty
mitted to a state institution
interest
experience
Fourteenth
Due Process Clause of the
Amendment
safe
confinement,
bodily
conditions of
to be free from unreasonable
re-
straints,
pursue "minimally adequate
training
and to
or reasonable
320-22,
safety and
from undue
Id. at
ensure
freedom
restraint.”
however,
2460-61,
stated,
at 40-41.
S.Ct. at
73 L.Ed.2d
The Court
absolute,
rights
profes-
these
are not
but
limited "to the extent
necessary
safety”
judgment
...
sional
deems this
assure
for all
personnel
residents and
within the institution.
Id. at
S.Ct. at
2462,
In Harper, upon the case which Williams the Su- preme judicial hearing Court considered whether a was re- antipsychotic could administer quired forcibly before State to a a serious drugs prisoner with mental disorder. a state administrative which upheld Washington policy,
Court
provided
only
that an inmate
a state institution could
medicated if he
involuntarily
hearing
were afforded
thereof,
at
provided
which he was
notice
which was
evidence,
witnesses,
present
entitled
cross-examine
advisor,
and from
represented by lay
which he was entitled
215-16,
to appeal an adverse decision.
at
Harper,
U.S.
1033-34,
236,
1044,
framework,
prisoner’s right
that the “extent of a
noting
drugs
of antiрsychotic
the unwanted administration
avoid
confinement.”
in
context of the inmate’s
must
defined
the
1037,
Moreover, pre- fact that the medication must the by reviewing then a by psychiatrist, approved scribed in will be question that the treatment ensures psychiatrist, interests, given in medical only prisoner’s if it is the ordered of his institutional confinement. legitimate the needs the interest combat- are few cases which State’s There himself and others danger posed by person both ing environment, which, “by in a defini- prison than greater tion,” proclivity with a “demonstrated up persons is made violent, ... criminal, conduct.” We for antisocial and often just its interests. obligations, confront here the State’s obligation provide prison- The State has undertaken their only consistent not with ers with medical treatment of the interests, also with the needs own medical but only have not an interest institution. Prison administrators safety prison staffs and administrative ensuring duty ... also the to take reasonable meas- but personnel, safety. prisoners’ ures for the own * * * disability inmate’s mental is the root cause an Where to the inmate the State’s inter- poses population, threat he necessarily to others encom- decreasing est in him with medical treatment providing an interest in passes for his illness. 225-26, 1037-39, at 198- 110 108 L.Ed.2d
Id. at S.Ct. (citations omitted). rejected possibility Primarily, Assembly General permitted could be that forcible administration medication involuntary possibility commitment and the solely upon based by refusing adopt original confinement of continued Bill the forcible administra- permitting of House language if the was at substantial risk tion of medication individual mentally significantly longer ill for a remaining seriously оr with no relief the mental period significant of time Rather, enacted a version of House Legislature illness. Society’s Maryland Psychiatric Bill with the 588 consistent amendment, dangerousness standard proposed incorporating *27 to limit the breadth of the 10-708(g), obviously within Section have forcible medication of original permitted bill which would involuntarily upon diag- committed individuals based their noses. 10-708(g), it also Legislature enacted Section
When purposefully adopted procedural process requirements due in iterated Williams process safeguards and substantive due In precursor, Harper. regard, this and its foundational must be in the context of its review of Harper opinion viewed medication Washington policy permitted a state forcible upon on a ill psychotie drugs mentally solely of inmate based security: “In impact prison that his disorder had on order it must involuntary approved, medication to be be demon- that the inmate from a mental disorder and as strated suffers of a result of that disorder constitutes a likelihood serious to himself or others is disabled.” Id. at gravely harm and/or 243-44, 1048, (Blackmun, J., 110 at 212 S.Ct. 108 L.Ed.2d 600.30, 9, Policy In concurring), quoting Lodging, p. Book 1. fact, in Washington policy Harper sugges- under review is language 10-708(g): of tive Section a determines that an inmate should be psychiatrist [I]f with but the inmate does not antipsychotic drugs treated consent, subjected involuntary the inmate treat- (1) with the if he suffers from a “mental drugs only ment (2) poses or a “gravely disorder” and disabled” “likelihood himself, others, of harm” to or their property. serious 432
* * * a per means “a condition in which “Gravely disabled” (a) of son, of a mental disorder: [i]s as result provide harm from a failure to physical resulting serious (b) mani safety, or or his essential human needs health evidenced functioning deterioration routine fests severe loss оf or volitional by repeated escalating cognitive such care receiving his or her actions and is not control over safety.” his or her health or “Likelihood as is essential for (a) risk that harm” means “either: substantial [a] serious upon an individual his own by harm will be inflicted physical or to commit by attempts as evidenced threats person, (b) self, or inflict harm on one’s substan physical suicide by harm will be inflicted an individual physical tial risk another, has caused by as evidenced behavior which upon or places person persons harm or which another such (c) harm, sustaining such substantial reasonable fear by harm will inflicted an individual physical risk that others, as evidenced which upon property behavior loss or to the damage property has caused substantial others.” n. at 1033 & n. 494 U.S. at & S.Ct.
Harper,
(citations omitted).15 Obviously, the
at 193-94 & n. 3
L.Ed.2d
*28
Supreme
Immediately
Harper, the
Court denied
15.
after the decision in
Charters,
Cir.1988),
(4th
a
in United States v.
would render the the Clini- 10-708(b)(2) permits cal Review Panel redundant. Section forcibly involuntarily medicate individuals committed State institution; involuntarily to a state individuals commit- they institution if are dangerous ted a state themselves If general community. 10-708(g) or others Section showing only dangerous the individual requires then, it, in the general community, himself others would finding already during mandate a which was made a commit- case, proceeding, present ment such as which make complicated, upon presump- matters more was made based control,” crazy losing Morgan potentially dangerous to himself Id. at 697-98. hospital. and others in the state
435 Kelly. As against filed charges premised upon tion Martin, interpreta- such an in Appeals of stated Special Court the intent “would obviate 10-708(g) of tion Section Assembly’s “the General by allowing Assembly,” General easily be] individuals protection [to for the such scheme 529, 257. 691 A.2d at Md.App. 114 avoided.” to the State permitting that not contends Department results illogical will lead solely for release forcibly medicate in a indefinitely could be confined many individuals because may possibili- That be without medication. state institution in 1991 Legislature certainly It was considered ty. assump- onе of the 10-708(g), because when it enacted Section in Services Department Legislative explicated by tions amendments to House proposed note for the impact its fiscal Bill was that: 588 an involuntarily admitted for individuals who are
Some to make may competent mental and who acute illness (and, therefore, are not appropriate treatment decisions and remain in the medication guardianship) may refuse medication, period for an extended facility, untreated with of time. Services, Note—Assumptions Fiscal
Department
Fiscal
(1991)
in
(emphasis
original).16
Bill 588
House
institution, absent
lengthy
confinement
in a mental
16. The issue
States,
explored by
Supreme
in
v. United
was
Court
Sell
2174,
(2003),
166,
197
when Justice
539 U.S.
123 S.Ct.
156 L.Ed.2d
Court,
Breyer, writing for the
remarked:
voluntarily,
example, may
drugs
failure to take
The defendant’s
mentally ill—and
lengthy
an
for the
mean
confinement in
institution
ordinarily
freeing without
attach to
that would diminish the risks
crime. We do not
punishment one who has committed a serious
suggest
is a substitute for
criminal
mean to
that civil commitment
timely prosecu-
has a substantial interest
trial. The Government
try
who
may
impossible a defendant
tions. And it
be difficult or
years
during
memo-
regains competence
of commitment
which
after
may
potential for future
and evidence
be lost. The
ries
fade
affects,
undermine,
totally
strength of
confinement
but does not
prosecution.
the need for
2184,
See
Cochran v.
JUDGMENT OF CIRCUIT COURT OF PAID BY AP- MORE CITY AFFIRMED. COSTS TO BE PELLANT.
WILNER, J., joined a concurring opinion by files HARRELL, J. WILNER, J., HARRELL, J.,
Concurring by which Opinion joins. because, record,
I on I judgment concur the Court’s this is right. My question think it is concern that the articulated justify condition and obtain his release did not forcible administration medication). presented one the actually is not the by Department case, proposes that the I fear that the answer Court inappropri- a result that is produce to that give question may ate, intent, illogi- wholly with legislative inconsistent cal. that, nutshell, to hold whenever the
In a the Court proposes to which a criminal defendant psychiatrists hospital a State § by pursuant has a court 3-106 been committed (CP) it to forci- necessary believe Criminal Procedure Article whether, on person, always the focus must bly medicate medication, to self or will be person dangerous without the view, In setting. others within the institutional the Court’s whether, have person without will period than hospitalized significantly longer remain he would because or she will continue necessary otherwise community to the upon be a self others release is, law, view, as In is much too my a matter irrelevant. § 10- It not in with keeping broad a statement. is one (HG) Article and creates an 708(g)(3) of the Health-General have possibly that cannot been anomaly absurd “Catch-22” Assembly General and that is not Constitu- intended tionally required.
It at the to focus on what is important only outset before *32 aby pursuant us—a criminal defendant committed court to § are not here with a dealing patient CP 3-106. We committed governed civil whose ultimate is through proceedings, release (other 10-803, § § § 10-801 10-813 than by through HG admissions). which some of voluntary Although deals with the situations, differ- analysis may be the in both there are same language procedures ences in the and the statutory both release from the confinement. A criminal defendant obtaining by § to not released pursuant committed CP 3-106 be court, and, civilly the hospital, only by the but the unlike he trial on patient, jury committed or she is entitled to Thus, pertinent respect the release. with the issues defendant, there is a clear and connection criminal direct § set 10-708(g)(3), governing between the criteria forth HG 3-106, governing § medication and release from forcible CP hospital confinement that needs to be My analy- considered. sis in this concurring opinion is in context of the criminal defendant that,
I think in determining whether the focus in that setting should on dangerousness within the institutional setting dangerousness within the community, broader courts must look at the nature and purpose prescribed of the medication, medication. If the purpose alone or in combination with other medications or therapies, simply behavior control—to patient calm the him keep and or her calm and compliant—I agree the focus must be limited to dangerousness If, within the institutional setting. on the hand, other the State can purpose demonstrate that the medication, alone or in combination with other medications or is not therapies, just suppress but treat and ameliorate symptoms that caused the patient to be committed under § place, CP 3-106 in the first necessarily the focus must on (1) medication, whether without symptoms those will not be treated or ameliorated patient and the will therefore re- (2) main ineligible 3-106, § for release under CP with the patient will likely eligible become for release. The burden is on the State show both that the prescribed that, medication is for that purpose broader alone or in conjunction with other medications or therapies, it has a achieving reasonable chance of that objective without undue I side effects. concur with the Court’s judgment this case I because do not that showing believe was made here. As somewhat of a belated preface, important it is to note moot, the case us is before a matter by overlooked C., Court. As we most recently held in In re Kaela 394 Md. 432, 452, (2006), 906 A.2d “a case is moot when there is no longer any existing controversy between the parties at the time that court, the case is before or when the court can no longer fashion an See also Ham remedy.” effective Police, men v. Baltimore 440, 449, 373 Md. 818 A.2d (2003) and cases cited there. This case involves our review of an order issued an Judge Administrative Law on *33 1, September 2005, approving the forcible medication of Kelly.
439 for only terms, however, that order was effective its own By and, far as this so day, the 90th after expired it days; 90 it remains reveals, any it nor renewal neither record for us no in effect therefore, is order there Currently, effect. case is expired, order has challenged to review. When 951, 244, 250, A.2d 954 Coburn, 674 342 Md. v. moot. Coburn (1996). moot is a case when becomes response our routine
Although merits, which is addressing appeal -without to dismiss 243, Martin, 703 v. 348 Md. Health Dept. what we did occasions, our have, exercised (1997), on rare 166 we A.2d appeal an “where merits such to consider the discretion in matters of of future conduct a rule establishing urgency manifest.” Mat imperative concern is public important 288, 71, 96, 792 A.2d 368 Md. Planning, v. Park & thews Elections, 206 Supervisors v. (2002), Lloyd from quoting (1954). Hammen v. 379, also 43, See 111 A.2d Md. Police, 818 A.2d 1131. Md. at supra, 373 Baltimore clearly will be “if the interest public exists urgency an Such decided, if the matter immediately is not question if the hurt will and its recurrence frequently, likely recur involved and its citizens.” government relationship between involve Id. case, right is therefore so the Court is such a
This the forcible medi- involving the matter. Decisions consider hospitals committed State criminal defendants cation of public of important § are matters to CP 3-106 pursuant relationship government between the involve a concern and likely are raised in this case The questions citizens. its can appeal an be moot before nearly always and will recur and is hospitalized remains Kelly and resolved. perfected for forcible medi- Any order to refuse medication. continuing may it days, although not last more than cation See to refuse the medication. patient if the continues renewed 10-708(m). §HG out, in the Circuit Kelly charged points
the As Court each of first County with two counts Montgomery Court *34 murder, degree rape, burglary, robbery deadly with a assault, weapon, degree one count of first and assorted lesser charges. It that the murder appears charges qualified Kelly for penalty. Observing pretrial the death his behavior at a hearing, the court was concerned as to whether he was to trial. competent Accordingly, stand it held a competency hearing Kelly and referred to Clifton T. Perkins Hospital, a security State maximum psychiatric hospital, evaluation. report The evaluation concluded that was not Kelly competent because, to stand trial as the result of delusional symptoms disorder, derivative of a mental he was to understand unable object him in proceedings against or assist his report defense. also found that Kelly dangerous The was history because he had a of assaultive and violent behavior and charged was with serious crimes. June, 2004,
In conducting after the court hearing, agreed Kelly that, that not competent was stand trial and because he or dangerous person himself or property community, others in the he could not In be released. that the court regard, “[gjiven gravity observed of the defendant, charges pending against that, it is fair say if proven, the charged represent actions of the defendant a risk public to the dangerous degree.” the most (Emphasis added.) Kelly was therefore pursuant committed Perkins 3—106(b). § to CP commitment, statute, under the is to remain “until the
court is satisfied that the no longer incompetent defendant is, disorder, to stand trial or no longer because of ... a mental a danger person to self or the or property others.” CP 3-106(b)(l). § implicit It is in that statutory requirement Kelly will remain committed until such time as the court is satisfied that he is no longer incompetent to stand trial or no others in the or community. longer danger himself In any release decision based on lack of dangerousness, be—indeed, must be—on dangerous- clearly court’s focus will community, ness in the dangerousness the institutional setting. proposition That is not by Kelly contested and seems Because, to be acknowledged by the Court. his despite beliеf ill, to convince sought has never mentally Kelly that he is not or to the to himself longer no that he is the court 3—106(b), § of CP purposes of others property person on conclusion any has not come to such the court and because community, in the made own, finding dangerousness its its June, 2004, extant. remains notes, findings notwithstanding As the Court to the judicial and the determination evaluation psychiatric court, contin- Kelly challenged he has never contrary, which and is he does not have a mental disorder to maintain that ued *35 November, 2004, to continue delusional, and, in he refused not prescribed that had medications been taking antipsychotic the hospital The taking he had been since June. for him and that § 10- to HG panel pursuant a clinical review then convened 708(c) should be admin- whether those medications to examine objection. istered over his 10-708(b) medication the rule that general states
Section the who refuses to an individual not be administered may “(1) of a on the order medication, emergency, an except [i]n to the life or danger a presents where the individual physician (2) others; nonemergency, or a of individual or safety [i]n the or committed hospitalized involuntarily when the individual is of a court and the medication by order for treatment section.” of this panel provisions under approved by criteria, for requirements, or sets forth the 10-708(g) Section in the non-emer- panel of medication approval forced case. The That is what is at issue this situation. gency part: in relevant provides, section or the administration of medication panel may approve
“The and alternative may approve recommend medications if the determines that: panel medications (1) for psychiatrist prescribed by The medication is disorder; the individual’s mental purpose treating of (2) of a reason- represents administration medication judgment; professional able exercise (3) is at substan- the individual Without because hospitalization tial risk continued of: (%)Remaining seriously mentally significant ill with no symptoms the mental illness that cause the indi- relief of others; vidual to be a to the danger individual [or] (ii) Remaining seriously mentally ill a significantly for longer time with mental illness period symptoms cause the individual to be a to the individual or to others ...” added).
(Emphasis 10-708(h)(l) requires panel Section that the base its decision on clinical “its assessment the information contained in the presented individual’s record and information to the panel.” (h)(3) panel Subsection adds that approve administration of medication if “alternative treatments are are acceptable available and both the individual and the facility personnel directly responsible implement- who are ing the individual’s treatment plan.” any
There does not seem to be serious here that the dispute medications, them, or at least some of were prescribed by psychiatrist purpose treating Kelly’s mental disor- Nor, perhaps part der. other than as a of his claim that the panel wrong standard in its applied consideration of his others, dangerousness to self or alleged directly has he at- *36 panel’s tacked the conclusion that pro- administration of the posed medication a represents profes- reasonable exercise of judgment. sional The basic issue in this case is whether the that, panel and the ALJ erred in concluding without medi- cation, Kelly which refused to on take based his belief that he all, mentally was not ill at at Kelly would be substantial risk of (1) hospitalization continued either because he would remain seriously mentally ill with no of significant relief mental illness symptoms others, cause him to a danger be to himself or that (2) seriously or he would remain ill mentally significantly for a of longer period symptoms time with mental illness that cause him to a danger be himself or others. In that the regard, whether, more specific issue whether his determining others, him to a symptoms danger cause be to himself or the panel and the ALJ are limited to determining dangerousness may or hospital in the his confinement context of to himself released, danger he would whether, if consider community. or others disorder confirmed mental in this case panel
The Disorder, Persecutory and Grandiose consisted of Delusional regard- symptoms: “Delusions upon following Type, based falsely pressed case, charges that his were criminal ing his abilities; that him; regarding having special delusions against against in the case judge are involved attorney and the his medications, nine six approved it diagnosis, him.” Upon of his mental disorder. symptoms to treat the of which were members knew panel infer that may we Although findings it made no for each purpose nature of and individual medications— respect regard in that with do, or in combination individually each was intended what Rather, therapies. panel medications with the other those medi- taking that the benefits generally determined symptoms in the of his mental “include reduction cations the medications refusing that the disorder” and benefits panel exposure to side effects.” “would include lack therapy psychoe- that alternative treatment—milieu found not effective. ducational efforts—had been that, without finding panel The critical medications, risk Kelly would be substantial recommended (1) remaining seriously hospitalization because continued of the mental illness significant ill with no relief mentally or others dаnger that cause him to be a himself symptoms (2) significantly ill for a remaining seriously mentally illness that cause symptoms of time with mental longer period or others. him to to himself us, findings it that those appears the record available to On panel assume that the conclusory in nature. We were records, those Kelly’s hospital it medical and but had before (and that us. The record that we have records are before had) no of the nature contains delineation the Circuit Court *37 clear, medications, any much less of the various purpose they likely of whether would factually supported estimate sufficiently ameliorating Kelly’s symptoms effective point hastening by pursuant his release the court to CP 3—106(b). § At a
Kelly appealed panel’s hearing decision. before an (ALJ), Wisner-Carlson, Administrative Law Dr. Judge Robert com- Kelly’s treating psychiatrist, length, testified some Kelly’s prognosis: with his views about mencing for prognosis “We have talk about delusional disorder general. controversy There has been some that. about Delusional disorder is a chronic condition and without treat- starts, go years ment tends to on for and decades once it although it can wax and wane some. It is it thought respond—it doesn’t has been felt that it doesn’t respond treatment, well to but indeed more modern studies have really indicated that that relates the patient’s noncompli- ance with medication treatment. treatment, treatable,
And with medication it is fairly my experience treating that’s been the condition. So with- treatment, treatment, out his prognosis poor. With he has a moderate prognosis.” illness, Kelly’s
When asked about the treatment mental Dr. responded: Wisner-Carlson
“The main treatment is the medication. He’s also—and that medication now is right Risperidone. And the current is eight milligrams. dose And he also takes a effects, Benztropine, for side and the dose of that is one He’s involved in various on milligram. group therapies ward, informal, types of individual therapy—individual ther- ward, apy privilege system, of the and the level which ais if therapy, you form of behavior will.” that, The doctor approved by added nine medications actually admission, three panel, prescribed were oral “back-up with medication that he if would receive he refused the oral medication and did not agree take it mouth.” addressing When benefit the medications and their side effects, Dr. opined Wisner-Carlson that “the anticipated bene- fits to treat are his mental disorder and to—to the point
445 he be from discharged hospital” could allowed and that “he’s had minimal side effects from the medication.”
In summary, Kelly Dr. Wisner-Carlson asserted that would respond that, continue to and improve with medication but without medication he was at a substantial risk continued (1) hospitalization because of ill with no remaining seriously significant relief of symptoms causing danger himself to be a (2) others, to himself or and for a significantly longer period of time with symptoms causing himself to be a to himself danger others, further, or and Kelly that without medication could not discharged to a less restrictive setting. concluded, law, hearing,
After the the ALJ as a matter of hospital that the had shown aby preponderance of the evi dence that Kelly should be with the psychothera medicated peutic drugs approved by panel. found that Kelly She was, fact, delusional, in proposed medications were prescribed delusions, for purpose of treating the and thus Kelly’s disorder, mental and that the side effects of those medications were not so severe toas make their administra tion unreasonable.17
Kelly that, argued whether, before the ALJ in determining for purposes (ii), § 10—708(g)(3)(i) HG a finding and had to that, be made absent the Kelly would be danger- ous to himself or confined, others while in the hospital, rather than to the public large upon any release. The ALJ concluded that was necessary, and that she rely could on finding of dangerousness made court after the critical, competency hearing. That was for the evidence showed that Kelly restraints, had not been in seclusion had observation, not been on any special and had not had any special assaultiveness, intervention in regard to yet, even medications, while not taking the he had never threatened or anyone assaulted hospital. Kelly previously
17. had been on the medication and had been moni- unwell, tored for side effects. night He claimed that on one he felt but that, by the evidence taking Tylenol pills, symptoms showed two disappeared.
446 Special of the Court on the decision entirely
Relying Health, 691 Md.App. v. Dept. Martin Appeals (see (1997)—a later vacated that this Court decision A.2d 252 Martin, 166) A.2d Md. supra, Health v. Dept. of value—the utterly precedential has no therefore judicial action City, Kelly’s Baltimore Circuit Court that HG and concluded review, the ALJ’s decision reversed commit involuntarily that an evidence 10-708(g) “require[s] § facility or others in the to himself individual is a ted admitted, than to rather involuntarily *39 he has been which added.) (Emphasis his release.” society generally upon by addressed Department and by framed the question erred is whether the Circuit Court appeal in this the Court involuntary patient show “that an Department the requiring before the facility others in the to himself or ais medication, when, without medicated forcibly patient indefinitely.” (Emphasis hospitalized will remain patient the I added.) noted, question. that is too broad I think As must be which question there is a threshold believе can Department the framed question before the answered each medi- the purpose what is be considered: properly patient Is it for forcibly administered? to be proposed cation pur- therapeutic or for broader hospital in the management latter, to be effective? likely is it if it is for the poses, are for me, If the medications is, a critical distinction. This ALJ, and the the panel, the management purposes, patient only dangerousness consider review need judicial court on is all that is hospital, for that within the patient of the relevant. however, being are asserted, that the medications
If it is ameliorating symptoms purpose for the prescribed because, long so as being from released patient preclude he or she will symptoms, from those suffers patient community, or others in the to self dangerous continue to be dangerous- ALJ, necessarily must look and court panel, Otherwise, § 10-708(g)(3) hospital setting. ness outside no meaning. would have subsection,
In that assuming the conditions subsections (2) met, (g)(1) and are Legislature has affirmatively au- that, thorized upon forcible medication a finding without the patient is “at substantial risk of continued (1) hospitalization” remaining because of ill seriously mentally significant “with no relief of the mental illness symptoms that cause the individual to a danger to the or individual (2) others” or “for a significantly longer period of time with mental symptoms illness that cause the individual to be a danger to the individual or to others.” patient When the under court pursuant 3-106, § commitment to CP the issue of dangerous purposes § 10-708(g)(3) HG must be viewed from perspective of the community, because that is what will patient’s control the that, release. Without on focusing no finding could ever § be made under 10-708(g), and there could therefore any never be forcible medication of such a patient except 10-708(b)(l) an emergency § situation under HG strictly for behavior control.
Kelly, Court, and to some extent the place weight on some language in Washington v. Harper, 494 U.S. 110 S.Ct. (1990). case, me, L.Ed.2d 178 That is largely irrelevant. It dealt with the forced medication of a mentally *40 inmate, ill prison who would remain incarcerated to serve his term with or without the medication. Naturally, the State’s focus and that of the Supreme Court dangerousness was on institution; within the no other focus would be relevant. HG § 10-708(g) provide, and, me, does requires, a different focus, at least when patient was committed pursuant to CP § 3-106.
The legislative 10-708, § history HG recounted Court, demonstrates that the Legislature to put tight intended reins on the forced medication of involuntarily committed patients and not to allow the kind of regime portrayed in One Flew Over The Cuckoo’s Nest. If the doctors believe that forced medication is necessary, it is upon incumbent them establish precisely why the medication is both necessary and would be effective to achieve the objective set forth in Bald, statute. general, unsupported opinions that the medi- helpful do not suffice. necessary cation is would proposed clear evidence of what each record should contain do, alone or combi- designed medication is effective therapies, and precisely nation with other medications and stated without conditions why, how fact, will, us fails to § exist. The record before 10-708(g)(3) to the and even presented panel, evidence was show such detailed, ALJ, record which is somewhat more before judg- I why That is would affirm legally insufficient. Court. ment the Circuit joins that he HARRELL has authorized me state
Judge opinion. in this concurring
918A.2d 499 PROPERTY & CASUALTY INSURANCE GUARANTY OF MARYLAND
CORPORATION v. FREDERICK MEMORIAL HOSPITAL. Term, Sept. 2006.
No. Maryland. Appeals Court March 2007. (Lord P.A., brief), Baltimore, & on Whip, JohnW. Vernon petitioner. (James Fraser, Venable, LLP, on Stephen E. Marshall C. brief), Baltimore, respondent. RAKER, CATHELL, HARRELL,
Argued before *41 (Retired, BATTAGLIA, GREENE, JOHN C. ELDRIDGE (Retired, Specially ALAN M. Specially Assigned), WILNER Assigned), JJ.