People v. Medina

146 Ariz. 284

The PEOPLE of State

Colorado, Petitioner, MEDINA, III,

Joseph Respondent, P. Department of

Colorado

Institutions, Intervenor. 83SC7,

Nos. 83SC12. Colorado,

Supreme Court of

En Banc.

Sept. 1985. Lievers,

lyn Gen., Denver, Attys. Asst. intervenor, Dept, Colorado of Institutions. QUINN, Chief Justice. granted

We certiorari to review appeals the decision of the court of in Peo Medina, ple in the Interest 662 P.2d 184 (Colo.App.1982),relating to the of an incompetent committed and patient mental to refuse the administration antipsychotic by attending phy medicine probate sicians. The Denver court entered granting petition an order psy of two antipsychotic chiatrists to administer medi spite patient’s cation to the of the objection to the medication. The court of appeals probate reversed the order of that, court. It held in the absence of an action, emergency requiring immediate may medicine not adminis be nonconsenting mentally pa tered to a ill incapable making in tient who is proposed formed decision on the treatment authorizing unless a court order is obtained remanding the treatment. the case for appeals proceedings, further the court of probate ordered the court to consider and specific findings patient’s in make on the terests, preferences, variety and a of other factors, the administration and to authorize only if medication there magni sufficient existed state interests of to override the absence of consent. tude that, unless P.2d at 188. We conclude emergency poses an imme there is an and substantial threat to the life or diate in the insti safety of the or others tution, ad antipsychotic medicine mentally ill nonconsenting ministered to a making an informed patient incapable of only trial court decision after the treatment adversary hearing conducts a full and fair and is satisfied on the treatment decision (1) convincing that: by clear and evidence Stephen Kaplan, City Atty., P. H. Morris effectively incompetent to is Denver, Evans, Atty., peti- City Asst. for decision; (2) in the treatment tioner. by antipsychotic medication Denver, Slaninger, respon- Frank P. for and like necessary prevent a dent. long-term in the ly deterioration Woodard, Gen., likeli Atty. prevent Duane Charles B. condition or to Gen., Howe, Deputy Atty. causing Richard H. serious harm Chief hood of the (3) institution; Forman, Gen., James, Tracy others in the Sol. M. Caro- to himself or others, treatment alternative is not becoming less intrusive self and and was increas- (4) available; psychotic ingly agitated owing need to his unmedicated state. medication compelling sufficiently override probate The copy court mailed a of the legitimate bona fide and respondent’s attorney, motion refusing Although treatment. represented respondent had at various adopt which we herein are the standards proceedings since the initial short-term cer- different from substantially those set forth tification, and set hearing the matter for on appeals, part we affirm that 21,1981. the court of July respondent Both the and the judgment remanding the case to the respondent’s attorney attended the hear- proceedings. probate ing. for further court evidence elicited at solely

consisted testimony of Dr. Weiner, L. psychiatrist Kenneth who had I. treating respondent been Logan at Fort Medina, III, respondent, Joseph P. Mental Health Center. thirty-four old year long history with a of Weiner respondent Dr. testified that the behavior, and assaultive was illness from paranoid suffered severe schizophre- originally certified short-term mental nia, psychotic which rendered him most of February 27, health treatment on care and psychotic the time. When in a state the August 1980, pursuant 1980.1 On to respondent, according doctor, the hears order, placed respondent by court the was voices which cause him inner confusion and Department the of Institutions Fort Lo- generate anger resulting psychotic fan- gan long-term Mental Health Center for people tasies are about hurt him. care and treatment. respondent sometimes becomes as- 8, 1981, City July On the Denver Attor- during episodes saultive these and occa- Office, ney’s acting request at the of two sionally attacks others or throws furniture psychiatrists Logan on the staff at Fort objects and other the around mental health Center, Mental filed a Health motion the facility. symptoms To alleviate these the probate court for an Denver order authoriz- psychiatric staff respon- had treated the ing of respondent treatment the the use antipsychotic dent with medications. Be- antipsychotic of medication the over re- respondent initially experienced cause spondent’s objection. alleged The motion rigidity some muscle as a side effect of two treating psychiatrist had deter- antipsychotic drugs, prolixin, haldol and his antipsychotic mined that medication would changed medication was to a third respondent be beneficial to but thorazine, compound, chotic which was nor- respondent refusing had been the medi- mally administered in milligram three 300 days. cation over a number of Documents dosages per day. Dr. Weiner stated that support filed in of the motion indicated that respondent the medication enabled the the respondent history had a Of violent gain paranoia control over some behavior both inside and outside the mental decreased the incidents of assaultive behav- facility, danger health remained a to him- opinion, ior. In the doctor’s if respon- 1. "involuntary for mental Certification health care treat- we ion when refer to confinement" ment, provided commitment,” as for in sections 27-10-101 to results in alluding or “civil arewe to statu- -129, (1982 Supp.), & 11 C.R.S. tory procedures. certification Short-term certi- persons facility detention in months, fication last for three with the ill, and, mentally who are as a result of such extensions, possibility of additional three-month illness, danger are a themselves or others or long-term while certification allows the court to gravely persons disabled are who as a months, order treatment for six with further result of mental illness are unable of basic take care requisite six-month extensions if the conditions making personal grossly needs or are dangerousness grave of mental illness and irresponsible concerning persons decisions their disability continue to necessitate treatment. See incapable realizing they doing and are 27-10-107, -108, -109, sections (1982). so). placement Such for mental health care and involuntary, opin- treatment is and thus in this regular gressively to continue doses of the dent were worsen even if the antipsychotic medication, placed he eventually longer could medication is no Dr. administered. environment, respondent less-restrictive such a Weiner stated showed ,. signs present house. halfway no at developing this condition. The doctor acknowledged, how- however, respondent, told Dr. had ever, high degree that due to the of medi- that he did not Weiner like the effects long cation history and the of treatment medication and would there was a risk that the re- intermittently it. only consent to take Dur- spondent might develop this condition pre- ing period the two one-half week the not too distant future. ceding respondent had re- to ten Although respondent’s fused six doses of thorazine. As a ability to ab- his refusal medication result of to take the sorb information was limited to short time increasingly ag- had respondent thirty become frames of seconds to a minute before angry. Dr. psychotic thoughts itated and Weiner testified that over, would take Dr. he was more disturbed inner voices than Weiner attempted nonetheless on two occa- headaches, previously, explain suffered severe was sions him the risks and bene- assaultive, escaped often from the fits of the medication. On center It on one occasion. was respondent first occasion immedi- opinion respondent ately office, the doctor’s that if the left the doctor’s and the sec- medicine, continued refuse ond meeting similarly unsuccessful. never enough he would be well to leave the It opinion was Dr. Weiner’s that the re- facility and would poorly spondent function even impaired was so that he setting. that was unable make informed decision on whether it in his own was best interests acknowledged Dr. testimo- Weiner his antipsychotic to take the medication. antipsychotic medication, ny specifical- thorazine, effects, ly produces various side At the conclusion of Dr. Weiner’s testi- sedation, vision, dry- mony, such blurred probate as mouth the court offered the re- ness, pressure, retention, blood urinary spondent’s attorney low an opportunity to con- constipation. reactions, respondent. and These respondent’s adverse fer with the according doctor, generally counsel the court that respon- advised the and, case, respondent’s testify short-lived the dent did not elect to the matter. shortly disappeared after their Dr. onset. probate granted court the motion for respondent Weiner stated that the reacted the of administration medi- milligram dosage a 900-1200 well to of cine a and entered written order to that per day, amount, fairly large thorazine July effect on 1981. its order the upon becoming psychotic and that less pertinent part court found in as follows: dosage range would be reduced to the respondent suffering that the was from milligrams per day. of 500-800 which rendered him incapa- serious illness The more serious making risk from ble of an informed decision with medication, Weiner, according respect by antipsychotic to Dr. is tar- to treatment medi- dyskinesia. cation; dive This condition is charac- that the administration of the medi- by involuntary of respon- terized movements the cation was in the interest of the tongue, lips, jaw ultimately health; and respondent’s and dent’s that the progress stage involuntary to a resulting in refusal the medication unrea- to take was extremities, neck, sonable; movements of the and prop- medication “can be the dyskinesia, erly back. Tardive in its extreme and controlled” in monitored order to form, may speech, dyskinesia interfere with swallow- of tardive offset the risk and effects; ing, breathing. There is no known other that the risk of side tardive preventing dyskinesia great prohibit method the occurrence of not so as to dyskinesia, medication; tardive once this condition the use of the and that with develops, ensuing disability may pro- regular the medication the re- following proper hearing.” 662 P.2d at liv- capable of probably be

spondent would 187. facility restrictive treatment ing in a less Logan Mental Health Center. Fort

than the Addressing procedural standards re- the findings the court conclud- Based on these hearing, the quired for such a treatment attending the re- physicians the ed in the appeals court of stated that event to administer permitted spondent present should be ill is not at con- testify, in a manner the trial medications or elects not to patient, talk to the practice, with court must nonetheless sound medical sistent with condition, physical and mental control, observe his monitoring and for as proper give due consideration to his wishes respondent remained period long a concerning In addition to the treatment. long-term care and certification for under preferences, patient’s interests and treatment. appeals of listed several other factors court appeals the order reversed The court court, includ- considered the trial to be that in probate court. It noted Goe following: ing the Department Institu v. State decke decision; urgency the extent of (1979) tions, Colo. 603 P.2d impairment patient’s mental facul- curiam), a mental this court held that (per ties; understanding patient’s level of statu has a commonlaw and health reaction; reli- probable by antipsy- tory right to decline treatment beliefs, any; clarity pro- gious if competent unless a tribu chotic medication good medi- opinionas to what is fessional has illness nal determines pro- practice; cal the intrusiveness of the incapa judgment that he is impaired his so treatment; risk, complexity, posed deci participating in the treatment ble of treatment; novelty proposed to treat or that his refusal to submit sion proposed treat- prognosis without irrational or unreasonable. While ment is ment; proposed prognosis with the probate court’s determina recognizing the treatment; probability possibility respondent’s mental condition tion that the effects; whether there is of adverse side effectively incompetent him rendered that is less intrusive than an alternative decision, the participate in the treatment pro- proposed which would the treatment recognized a appeals nonetheless court of interest; impact public on tect the the treat right respondent in the to decline family; the consent or ab- specifying ment. Without whether patient’s family sence of consent of respondent’s right was the of the source good those ad- guardian; the faith of or constitution, federal state the common or proposed vocating objecting to the or law, law, statutory the court of or Colorado likelihood of conflict- treatment and the right appeals respondent’s ruled to interests; per- third ing the interests of against weighed institution; must decline treatment be outside of the sons and maintaining (includ- persons order physical the state’s harm to risks of safety ing patient, patients, within the institution and other and insti- proper- personnel) damage to or of to providing effective mental health care tution proposed without the ty Pro in the institution those to care for themselves. unable treatment; orderly effect on the framework, and the analytical ceeding from this of the insti- and efficient administration that, appeals hold the court of went on to is not proposed if the treatment tution emergency calling for situation “absent given. (in the least immediate action which event phy should intrusive means be used ap- Finally, the court of 662 P.2d at 188. emergency), antipsy- sician to meet trial court to make find- peals directed the chotic medication shall not be administered factor and to indi- ings pertinent on each mentally incompetent finding reasons for to a institutionalized each those cate “within treatment,” then to ana- against to given who has not his consent findings” in weight of the lyze “the relative this medication unless ordered a court utory provisions if Id. Only governing it. the trial the case before commitment court, considering pertinent procedures mentally after all for the ill. there exists “a factors, determines that beyond It dispute that commit interest or interests of sufficient state ment of a to a mental institution in the absence of magnitude to override [the the first instance in constitutes severe may authorize

patient’s] consent” the court fringement on the basic interest of that with medi- the treatment governmental individual to be free from Id. cation. requires protection restraint thus un not granted certiorari to consider We der the Due Process Clauses of the United mentally only whether an institutionalized See States Colorado Constitutions. effectively incompetent who is to ill Romeo, 307, Youngberg v. 457 U.S. in the decision has a participate 2452, (1982); Vitek v. S.Ct. 73 L.Ed.2d 28 right initially refuse the administration Jones, 480, 1254, 445 U.S. 100 S.Ct. also, medicine if such but Texas, (1980); Addington v. L.Ed.2d 552 exists, right right the source of such 418, 1804, 441 U.S. 99 S.Ct. 60 L.Ed.2d 323 procedures followed appropi’iate to be Indiana, (1979); Jackson v. 715, 406 U.S. determining and under what whether (1972); Hum 92 S.Ct. 32 L.Ed.2d 435 may antipsychotic medicine circumstances phrey Cady, v. 405 U.S. 92 S.Ct. patient’s objec- be administered over the Chavez, People (1972); v. 31 L.Ed.2d 394 tion. (Colo.1981); People Tay v. P.2d 1040 lor, (Colo.1980); Goedecke v. II. 618 P.2d 1127 Institutions, Department State People basically that a men- contend Lane, People 123; 603 P.2d Colo. incompetent ill tally who is also 196 Colo. 581 P.2d 719 While participate in has no treatment decisions envelop constitutional interests the civil right through antipsy- refuse treatment process, commitment we need not consider and, chotic medication in the absence of aspects right the constitutional of an right, specific such a treatment decisions mentally committed and in judgment entrusted to the competent person refuse treatment with attending physicians without the need for a The reason a medication.2 addressing court order. the issue be- analysis unnecessary is constitutional us, ques- fore we note at the outset common law and that both the Colorado’s relating right tions to the existence of one’s statutory relating involuntary scheme particular refuse treatment mentally clearly ill con commitment of the right inextricably of that inter- source persons, template that such whether com twined. If a ill who is petent incompetent participate incompetent also in the treat- decisions, have the under ment decision has a to refuse medication, legitimately appropriate circumstances to origin chotic it is because the significant right grounded poses that in the federal or refuse constitution, law, well-being. physical or risk to their state common stat- (Sup.Ct.1984); 2. Several courts have alluded to a constitutional 480 N.Y.S.2d 977 Amendment, the First Greaves, patient’s F.2d basis for an see Bee v. 744 1387 Plante, (10th Cir.1984); (3d right cation, F.2d to refuse treatment medi Scott v. 532 939 Miller, Cir.1976); (2d including the Due Process Clause of the Winters v. 446 F.2d 65 Greaves, 985, 450, Amendment, Cir.), denied, Fourteenth see Bee v. 744 cert. 404 U.S. 92 S.Ct. 30 (10th Cir.1984), denied, - U.S. (1971); right of F.2d 1387 cert. L.Ed.2d 369 the constitutional -, 1187, Hubbard, (1985); F.Supp. privacy, 105 S.Ct. 84 L.Ed.2d 334 Davis v. 506 915 Silvers, Roe, (4th Cir.1984); (N.D.Ohio 1980); Guardianship re 383 Johnson v. 742 F.2d 823 In Okin, 415, K.K.B., (1st Cir.1984); (1981); Project Rogers re v. F.2d 1 Mass. 421 N.E.2d 40 738 Prevost, Cir.1983); (Okla.1980); (2d Eighth P.2d 747 and the Release v. 722 F.2d 960 609 Klein, (3d Cir.1983); prohibition against cruel and un Rennie v. 720 F.2d 266 Amendment Reivitz, Plante, (W.D.Wis. punishment, F.Supp. v. 532 F.2d 939 Stensvad v. 601 128 usual Scott 52, 1985); (3rd Cir.1976). Saribeyoglu, Savastano v. 126 Misc.2d 968 performs operation

A. different from that patient consented, to which the commits a law over the The common centuries has battery and is damages resulting liable for always protected individuals from unwant- therefrom, notwithstanding the exercise of person. contacts with their ed intentional reasonable care in performing opera- perhaps that “there is It has been observed procedure.” tive See also Maercklein v. right person’s no is older than a which Smith, 72, (1954). 129 Colo. 266 P.2d 1095 personal right to be free from unwarranted Hubbard, contact.” Davis v. F.Supp. 506 Although forcibly the decision to medi- 915, (N.D.Ohio 1980). 930 The common law cate a antipsychotic drugs with un- developed battery action of out of the doubtedly law’s aspect profession- involves an recognition of an individual’s judgment al medical psy- connection with personal autonomy bodily integrity— and diagnosis chiatric and treatment alterna- is, tives, person of a the fact remains the decision body. directly implicates and make decisions about his own itself legal Id. at 931. The law of informed consent personal interests autonomy bodily emerged battery, integrity. from the law of Antipsychotic medications, which ei- applied touchings by combination, to unauthorized ther alone or in can cause Rogers, 291, Mills physician. 457 U.S. numerous and carry varied side effects and 4, n. 102 295 S.Ct. 2446 n. 73 them possibly with the risk of serious and (1982); Prosser, Law permanent L.Ed.2d 16 W. patient. disabilities L. 1971). (4th Torts Gaughan LaRue, 18 at 101 ed. Right rules and L. aof § princi- of informed consent are built on the Mental Patient Antipsychotic Refuse Institution, ple only to Drugs in an “that has the Psy- Law and weigh attending particular the risks chology (1978); Plotkin, Rev. 51-56 Limiting Therapeutic and decide for himself what Orgy: Mental Treatment, course of action Right Patients’ is best suited for him.” Refuse Davis, F.Supp. recognized at 932. We Nw.U.L.Rev. 474-79 The ef- Murray, Bloskas v. as much in drugs P.2d fects of these can be far more debili- (Colo.1982), tating when we stated that physical to the than the re- physician operates on a straint involuntary incident “[a] commit- body patient’s consent, process.3 Furthermore, without “[tjhere who ment short-lived, types 3. disappear dosage Several of side effects are associated if the is low- with altered, medications. Autonomic type ered or the of medication or are system dryness nervous effects include medications, through treatable the use of other throat, vision, weight gain, mouth and dizziness, blurred although these medications have their own asso- pressure, fainting, urinary low blood exception ciated side effects. The dyskinesia ais form of constipation. retention and A central nervous dyskinesia. known as tardive This system effect associated with the medications is produces involuntary condition movements of sedation, may patients which cause distress in tongue, lips, jaw, may which include clearly. who desire to feel alert to think chewing lip smacking continual motions prob- Other effects include adverse behavioral may accompa- facial contortions. It also be lems, allergic jaundice, agran- reactions such as by involuntary fingers, nied hands, movement of the (a ulocytosis infection), rarely-occurring serious back, neck, legs, pelvic area. In its discoloration, lesions, eye skin endocrine effects most severe form it interfere with all mo- and, impotence, such as lactation and on rare activity, making speech, swallowing, tor occasions, sudden death. The most breathing extremely dyskine- difficult. Tardive effects, however, group extrapy- of side is the special sia is of concern for several reasons. ramidal effects. These are neuromuscular reac- First, symptoms appear its often do not until types: parkinsonian syndrome tions of three late in the course of treatment and sometimes (mask-like face, tremors, drooling, rigidity, not until after treatment is discontinued. Sec- retardation, shuffling gait, motor and an "ill-rill- ond, there is no known cure for the ing" (an hands); condition. motion with one or both akathisia Third, impossible predict inability it is who will be- to sit still or an irresistible desire victim, keep walking feet); tendency tapping come a aside from the dys- of the and (bizarre face, patients long-term tongue, high kinesia condition movements of the to affect on neck). exception, dosages antipsychotic Finally, With one all of the com- of medications. antipsychotic mon fairly side widespread, effects of medications the condition is as studies

969 virtually antipsychotic repeated no evidence that objections tient’s prolixin medi- drugs upon pa- cation, a have beneficial effect the treatment facility petitioned the beyond they tients the time are in the blood district court for an authorizing order Gaughan LaRue, su- stream.” L. and L. drug administration pa- over pra, at 48. objections. tient’s Notwithstanding evi- dence that previously expe- had The intrusion on the rienced adverse effects from the medi- bodily integrity by created the forced ad- cation prolixin and that causes “severe side ministration of medication effects in patients half of the treated with provided underpinning the doctrinal for our Colo, it,” 409, 198 124, at 603 P.2d at Goedecke, 407, decision in 198 Colo. 603 granted district court the order. In revers- involuntarily P.2d that an committed ing, we stated: qualified has a common law The right courts of this long to refuse state have medication ac- knowledged right physician’s preserved obligation intact 27-10-104, (1982), obtain section C.R.S. which informed consent not only expressly provides surgery, for that a mental health but also for treatment drugs with patient, having possible even after certification for mental harmful side treatment, health care effects. As Justice does not Cardozo “for- declared in Society any legal right feit New York legal or suffer disabili- Schloendorff of Hospitals, ty” by reason of 211 N.Y. Goe- the certification. 105 N.E. decke, (1914), “every being human had been certified for of adult years short-term care and sound and treatment and had re- mind has a prolixin, fused the administration determine what shall of an be done with his drug physicians body.” own had The above cited statutory sought provisions to administer in order [authorizing to alter the involuntary com- patient’s thought patterns and to minimize mitment for mental health care and dangerousness. his pa- Because of the recognize that mental and treatment]4 have indicated condition occurs in 10- restrictive alternatives unavailable and patients receiving long-term, high-dosage of 40% only safety safety when his or the of others is Appelbaum, treatment. Gutheil and "Mind Con- endangered; " trol, "Synthetic Sanity," Competence," (c) provide possible To the fullest "Artificial measure Legally and Genuine Relevant privacy, dignity, rights persons of Confusion: Ef- and other Medication, Antipsychotic 12 Hofstra fects L.Rev. Hubbard, undergoing illness; of care for mental (1983). generally See Davis v. F.Supp. (N.D.Ohio 928-29 (d) encourage voluntary To the use of rath- 1980), therein; Kaplan and authorities cited H. er than coercive measures to secure treatment Sadock, Synopsis Comprehen- and B. Modem of and care for mental illness. (3d Psychiatry/III sive Textbook 771-89 ed. Goedecke, person As we noted in certified for 1981); (38th Physicians' Desk 1896-99 Reference mental health care and treatment does not "for- 1984). ed. any legal right legal disability" feit or suffer specifically unless and otherwise ordered statutory authorizing 4. Colorado's scheme invol- 27-10-104, (1982). court. 11 C.R.S. § More- untary commitment for mental health care and over, person receiving mental health treat- legislative treatment reveals a intent vest an ment is entitled to such treatment as will “meet involuntarily qualified committed with a 27-10-116(l)(a), needs." § individual expressed to refuse such treatment. The (1982). Department C.R.S. The purposes statutory provisions Institutions dealing respect required adopt regulations in this mentally with care and ill are 27-10-101(1), requiring (1982), specific therapies listed in for “[c]onsent section 11 C.R.S. major as follows: medical treatment in the nature of sur- 27-10-116(2)(a), gery." (a) § person To secure for each only interpretation reasonable this statu- ill such care and treatment as will be tory legislature quite clearly person scheme is that the suited to the needs of the and to insure grant skillfully that such care intended to and treatment are humanely respect qualified right administered at least a with full for to refuse those person's dignity personal integrity; psychiatric therapies and treatments that create (b) deprive person liberty permanent To of his a risk of serious and disabilities for purposes only patient. of treatment or care when less administration

970 in the capacity lacked to participate not crimes and the

emotional illnesses decision, is in hospitalization for their treatment we hesitation that treatment had no for with incarceration statutory to be confused not holding that the common law and be It would inconsistent punishment. with provided patient law of the Colorado spirit purpose to the statutes’ with right the adminis- “a to withhold consent to right common law patient’s that a insist non-emergency in cir- prolixin tration of abrogated treatment is decline medical Colo, to 411, P.2d at cumstances.” 198 at 603 In- alone. by short-term certification 125.5 right that this is to be we conclude stead protected by C.R. among those numbered B. S.1973, pre- and is therefore 27-10-104 Goedecke was directed in to Our decision of find- in the absence some served intact pa- right involuntarily the of an committed tribunal, competent by a ing, reached par- competent tient was otherwise impaired has patient’s illness so that the refuse ticipate in the treatment decision incapable par- he is judgment his that by antipsychotic medication.6 treatment affecting his ticipating in decisions question raises unan- instant case a health. patient a swered in Goedecke —whether Colo, (footnotes 125 at 603 P.2d at 198 competent an informed who is not make Note, A Common Law omitted); see also possesses treatment decision nonetheless the Remedy Forcible Medication of for object involuntary the treatment III, Mentally 82 Col.L. Institutionalized are satis- antipsychotic medication. We (1982). there was no find- 1720 Since Rev. in qualified right fied set forth that the that the ing by the trial court pa- involuntarily high committed risk cate- 6. The notion that is within chotic medication commitment, are, by incom- gory requires some virtue of the consent or tients of treatment that may proper- legal justification petent provide it medical be informed consent to other before rejected. patient. Psychiatric ly been litera- administered to a treatment has any necessary relationship rejects between ture Goedecke, concluding that court after 5. The and the the of a mental illness establishment had the an right unable to make conclusion that the is a absence of to refuse treatment Davidson, Psy- H. Forensic rational decisions. incapable finding partici- patient was that the (1952). Competency legal, a not a chiatry medical, 196 decision, pating went on to treatment decision; authority implicit ”[t]he case in this contains no "[t]he state record justifica- psychiatrist not the sole should be capacity finding patient] lacked [the integrity." violating personal tion one’s for in such decisions that his refusal Plotkin, Limiting Orgy: Therapeutic Mental prolixin was to submit to treatment with itself Treatment, Right 72 Nw.U.L. Patient’s to Refuse Colo, 198 at irrational or unreasonable." Furthermore, medical Rev. 489-90 added). (emphasis interpret at We 603 P.2d justification suggests that there is little research part italicized this statement as an added the requirement patient’s ignoring to submit refusal that, in the event the antipsychotic served, court has ob- medication. As one incompetent, must also the court find that have found that two researchers any patient’s without reasonable refusal was early "subjective response very patient’s basis in fact before a nonconsensual treatment anti-psychotic] chlorpromozine [an IIIB, may part infra, we order spell be entered. degree, sympto- predict, to a moderate specific out the elements that enter into course of treat- matic outcome after sustained this latter If the italicized state- determination. Hubbard, drug." Davis v. ment with F.Supp. ment were to might taken to mean that the court (N.D.Ohio 1980) (quoting Van pa- competent order over Subjective Ray, Response as a Predictor & Putten objection long patient's tient's as refusal Pharmacotherapy, Gen. 35 Arch. Outcome In of Psychiatry unreasonable, would then such statement (1978)). Finally, because 478-80 immediately the court’s be irreconcilable with preceding antipsychotic medi- therapeutic value of of refusal is conclusion trusting upon depends of a existence cation relationship 27-10-104, preserved intact section psychi- and the between (1982), finding appropriate in the absence of atrist, willingness to submit impaired "that the has so his illness compo- only be as a vital medication can viewed judgment participating incapable of he is Davis, program. nent effective treatment Colo, affecting health.” at decisions F.Supp. at 936. 411, 603 P.2d at 125. 971 justifiably cannot be limited to The Assembly Goedecke General implicitly recog- patients competent those who are to make governmental nized these concerns in en- disruption treatment decisions. The acting 27-10-111(4.5), section bodily integrity is no less real in the case of (1982),which became July 1,1982, effective nor, incompetent patient; for that mat- subsequent to the hearing in this ter, are the risks from the 27-10-111(4.5) case. Section states, per- in patient medication less for a who is part, tinent in the event a give unable to an informed consent to the refuses to accept medication the court A.W., proposed treatment. See In re 637 which originally ordered the certi- (Colo.1981)(the court, acting P.2d 366 trial fication shall “jurisdiction have and venue probate capacity in determining under its accept petition treating physician parents’ application for sterilization of and to enter an requiring order that the minor, mentally retarded must base its de- [patient] accept treatment, or, such in the cision on an informed estimation of the alternative, that the forcibly medication be interests, minor’s own because otherwise administered to statutory him.” The grant inability retarded minor’s jurisdiction venue, however, is silent competent make a decision would result in question on the of what standards the complementary the loss of one of her con- court apply determining should in whether procreation stitutional in interests either legitimate interests of the state should sterilization). If anything, the state has a predominate over the interest of the non- greater responsibility towards those who consenting patient. The answer to this protect are unable to themselves and to question necessarily requires the considera- persons afford such panoply “the same tion of both equation sides of the within the rights recognizes compe- and choices it in guidelines framework of adequately persons.” tent Rogers v. Commissioner of incompetent address the patient’s right to Department Health, Mental 390 Mass. refuse an unwanted course of treatment 489, (1983), 458 N.E.2d quoting 315 permanent that could result in serious and Superintendent Belchertown State physical disabilities. We now turn to the Saikewicz, School v. 373 Mass. 370 guidelines. formulation of these N.E.2d 417 inability compe- tently to choose should not result person’s

forfeiture III. legal rights. of a We perceive therefore restricting no basis for People argue pa that once the of refusal to involuntarily those tient has involuntarily been committed and patients who are themselves incompetent, found to patient’s right competent to significance understand the adequately protected to refuse treatment is of the treatment decision. regulations the rules and of the institu opportunity tion and the say, however, This is not to that the post-treatment judicial seek review of the of an committed and treatment decision. We find no merit incompetent to refuse treat argument. whatever in this Relegating the ment clearly is absolute. The state has a post-treatment to a hearing, in addi legitimate in effectively treating requiring tion to pa forfeiture of the placed illnesses of those charge its and, well, bodily integrity tient’s interest in as related protecting patients and treatment, to the initial dangerous compel others from would potentially de very structive to submit to the conduct within the risks to which institution. See, Texas, 418, his e.g., Addington likely 441 refusal was most directed in U.S. (1979); remedy 99 S.Ct. first instance. Rog hardly L.Ed.2d 323 Such a com Okin, (1st Cir.1980), ports importance ers v. 634 F.2d 650 with the that the law has vacated long patient’s right partic and remanded sub nom. Mills v. accorded to a Rogers, ipate 457 U.S. affecting S.Ct. in treatment decisions (1982); Davis, F.Supp. L.Ed.2d 16 body. 915. own hearing. aside, view turn nonconsensual matter we this threshold With bodily integ- person’s treat- basic interest applicable to the of a to the standards nonemergency only interpre- situations. fair rity, we believe ment adequately statutory will is that the these standards tation of the scheme We believe respective indigent provide legislature accommodate intended to affecting body and his in matters patient involuntarily patient committed with the providing treat- state in any the interests right court-appointed to counsel at in its patients placed ill mentally ment to hearing involving the issue of nonconsensu- staff, safeguarding patients, charge in by antipsychotic medication.8 al treatment facility. We in a mental health and others proof at the treat The burden of pro- general procedural first consider pro hearing upon physician or ment is hearing, applicable to a treatment tections person9 seeking to administer the fessional must be established then the elements justification establish the for the adminis- treatment to may authorize a court before by medication over the clear and con nonconsensual tration of 27-10-111(11), problem of vincing and last patient’s objection, evidence. Section requiring immediate emergency (1982), requires situations the clear and 11 C.R.S. proof treatment. certifica convincing standard of for hearings relating to short-term and tion A. Further long-term care and treatment. patient involuntarily more, 27-10-125(4)(d), committed 11 C.R.S. section An of counsel at proof entitled to the benefit (1982),imposes a standard of similar statutory hearing. Colorado’s proceedings for court orders with re relating certification for short- scheme to legal disability spect imposition to the of a provides in long-term treatment term and deprivation legal right a as to or the of mentally patients ill with the digent Although 27- persons. section noncertified attorney. 27-10- court-appointed to a (1982), §§ 10-109(4), 11 which autho C.R.S. 27-10-109(2), 107(5), 27-10-108, 11 C.R.S. case of institu rizes similar orders Furthermore, (1982). section 27-10- patients, on the burden tionalized is silent (1982), requires the 125(4)(a), 11 C.R.S. proceedings, nothing in the proof of in such attorney any non- appoint an for court to legisla statutory scheme indicates against whom an order is person certified any than that ture intended standard other legal imposition of a disabili sought for the convincing apply clear and evidence of legal right.7 It ty deprivation of a or the types proceedings. of both provide noncertified makes no sense itself, hearing At the treatment attorney in such person to an with opportunity patient accorded the right to must be deny that same proceeding a but and to adverse witnesses involuntarily at a to cross-examine 27-10-125, (1982 evidentiary hearing on the treat- & person” 8. Prior to the 11 C.R.S. 7.Section decision, "any may provides Supp.), may petition interested the court in its discretion ment as appointment guardian the court for "a determination a ad litem consider the of disability legal imposition a or the to the indicate that circumstances of the case when the legal right” any person deprivation a for guardian may be of assistance to the care for mental health is not under certification attorney preparing for and or the but who is nonetheless and treatment hearing. presenting evidence at the treatment others, gravely dangerous to himself or ill and retarded, disabled, mentally developmentally 27-10-102(10), (1982), de- 11 C.R.S. 9. Section affect, disabled, The order or insane. person “physician" "licensed to fines a as a rights example, person's or the contractual “professional practice A medicine in this state.” right indicated, operate As we have motor vehicles. prac- person person” licensed to includes both requires attorney the statute that an psychologist "a in Colorado and tice medicine potentially subject appointed person for the practice state.” 27-10- § certified to in this imposition, deprivation and the need or 102(11), the court for the order must be demonstrated to convincing by clear and evidence. support present evidence refusal itself ineompeten- establish undergo antipsychotic cy medication. If make treatment decisions. Under our present Goedecke, is not at the treatment decision in prohibited court is testify, ordering elects not to we do not from the forced medication of an judge, that the trial believe ordered competent committed but pa- Appeals, the Court of must talk with the tient unless the court is satisfied that the patient’s physical patient’s and observe the mental illness impaired has so his condition. The appointment judgment as to render “incapable him indigent patient, along counsel for an with participating in affecting decisions Colo, procedural safeguards other outlined here- health.” 198 at 603 P.2d at 125. in, adequately safeguard will the interest If the competent patient of the at the hearing.10 treatment decision, the treatment patient’s then the refusal to proposed submit to the treat-

B. ment respected must be out of the law’s We turn now to the regard elements essential to person’s right for a to make deci- an order for nonconsensual treatment. sions on affecting matters bodily his own opinion Appeals The of the integrity. Court of would

require the trial court to consider and make If the court is convinced of the findings factors, myriad separate on a of to patient’s mental incompetency, it must then finding indicate within each the reasons for determine proposed whether the treatment treatment, against finally and to ana- necessary prevent is significant either to lyze weight the findings relative of the in likely long-term deterioration in the arriving at its decision. 662 P.2d at 188. patient’s mental prevent condition or to the We are satisfied that the interest of both patient likelihood of the causing serious patient the adequately and the state will be harm to himself or others in the institution. if physician professional served the per- or This determination involves a consideration desiring son antipsychotic to administer of two alternative factors. The first is the by medication satisfies the court clear and patient’s actual need for the medication. convincing following evidence of the four To this end the court should on focus the (1) propositions: patient that the is incom- illness, gravity patient’s nature and petent effectively participate in the the extent to which the medication is essen decision; (2) treatment treatment, prognosis tial to effective the necessary medication is medication, without the and whether the prevent likely long-term failure to medicate will be more harmful to patient’s deterioration in the mental condi- patient any posed by the than risks the prevent or tion the likelihood of the medication. The alternative factor involves patient causing serious harm to himself physical safety. danger the issue of institution; (3) or others that a less patient ousness of to himself or others intrusive treatment alternative is not avail- is a matter for consideration the initial able; (4) patient’s need for determination, certification 27-10- §§ by antipsychotic medication is 107(l)(a), -109(l)(a), -111(1), 11 C.R.S. sufficiently compelling to override (1982),and a similar concern is relevant legitimate fide bona interest of the resolving whether medication patient refusing treatment. patient should be administered to a who is

Initially, party seeking incapable participating treat in the treatment patient’s court, ment order must resolving ques establish the in decision. noted, competency. already tion, As the fact should consider whether the has been cer mental condition is such that in the absence tified for mental health proposed treatment does not treatment the will course, judge, reported, 10. The trial elect to talk to court and the scribed, should be tran- patient. Any part conversation between the and made a of the record. continuing likely signifi- permitted constitute evidence, extent must de- safety cant threat himself or termine whether the refusal others in the institution. legitimate and, so, bona fide and if whether prognosis without treatment is so unfa- point out here that it We is not patient’s personal vorable that the prefer- enough patient may have been yield ence legitimate must to the interests past. violent on some occasion in the A preserving state in the life and good many people, inside both and outside health of the placed in charge its institutions, at one time or another have and in protecting safety of those in the exhibited violent tendencies. While the institution. legitimate state has a in institu recognize We that the resolution of security, tional that interest not suffi vary treatment decision will with the permit expose it cient those commit circumstances of par the case and that the ted to its care to the risk of weight ticular compet be accorded the solely purpose medication for the of allevi ing impossible interests involved is pre ating possibility of some risk of future grants determine. If the court the order injury damage or others. involuntary medication, may place it Such a method of institutional control such time limits and conditions on the ad personal would be irreconcilable with the ministration of the appro medication as are dignity of the individual and would render priate under the circumstances of the case. patient’s bodily integrity the in any event, In the order must not extend nothing more than an illusion. What the beyond expiration the date of the order of state must establish is the likelihood that long-term treatment, care and which condition, cannot patient, the due will cause exceed six months without further exten harm to in serious himself or others the 27-10-109(4) (5), sion. appropriately §§ institution if not treated with (1982). any At the time hearing on the antipsychotic medication. original extension of the long- order for The third element relates to the commitment, term the is entitled to availability less intrusive alternatives to a new on and determination of the antipsychotic medication. Here the focus need for the continued administration of encompasses only gravity not the any antipsychotic medication. harmful effects proposed from the treat existence, ment feasibility, but also the C. efficacy treating of alternative methods of The above apply standards to non- patient’s alleviating condition or of emergency only. Although situations no danger created that condition. If less emergency was either claimed or estab intrusive methods are available to effec case, in recognize lished this we that there concerns, tively clearly redress these then may emergency requiring situations deny the court should the motion for non- physician professional person or other consensual treatment. patient’s override the refusal antipsy- Finally, the court must determine chotic in protect medication order to whether the need for medi inflicting from immediate and seri sufficiently compelling cation is himself, to override ous harm on protect others any legitimate interest of the danger, from a prevent similar or to refusing treatment. The refusal immediate and irreversible deterioration of prior experi stem from a unfavorable psychotic episode. due to a See treatment, ence Davis, with similar 934-35; absolute F.Supp. 506 at Rogers, 458 unequivocal religious practice, belief or legitimate N.E.2d at 322. The state’s inter member, family advice from a personality protecting mentally est in patients those ill attending physician, clash with the custody support committed to its will imme court, of a number of reasons. The diate medical delay intervention when the judi- by ordinary long-term recourse to the tification for occasioned treatment. Due to process place physical these underlying probate cial would itself deficiencies order, well-being necessary. or others imme- court’s a remand is jeopardy. emergency In these situa- diate judgment appeals of the court of tions, however, judicial authorization for remanding probate the case to the court is continued treatment must be obtained accordingly affirmed. The case is remand- practicable emergency soon as after the appeals ed to the court of with directions to that continued treatment with event return probate the case to the court for contemplated. medication proceedings further in accordance with the expressed. views herein IV.

A of the record shows that the review ERICKSON, J., dissents. probate applied court standards substan- ERICKSON, Justice, dissenting: tially different from those set forth view, my majority opinion improp- determine, opinion. We are unable erly imposes professional restraints on the example, proof standard of the court what judgment supervising authorities at reaching applied its decision. Further- hospital obligation the state and their more, although supports pro- the record psychiatric patients. treat certified respect bate court’s determination with respondent’s ill incompetency, the court had no com drug therapy mon law to refuse made no determination that ad ministered in the necessary prevent Denny Ty institution. chotic medication was ler, (3 Allen) 225, 85 Mass. 227-29 likely long-term deteriora- Miller, (2d 446 F.2d Winters v. tion of the condition. Cf. Cir.), denied, Rather, cert. U.S. 92 S.Ct. probate court its discus- turned (1971); 30 L.Ed.2d 369 Howard v. respondent sion on the fact that the “will Howard, 616, 623, Ky. 9 S.W. probably experience anxiety” most less (1888); Sheppard, 307 Minn. Price v. regular from the administration of the (1976). 239 N.W.2d 905 No court held has likely medication and will most removed be patients spe that mental have a upon to a less restrictive environment his cific constitutional to refuse treat improvement. sup- There is also a lack of Plotkin, ment while institutionalized. Lim port probate in the record for the court’s Therapeutic Orgy: iting the Mental Pa respondent’s determination the that likeli- Treatment, 72 Nw. Right tients’ to developing dyskinesia hood of tardive could Refuse 461, (1978). 491 U.L.Rev. properly be monitored and controlled. It testimony was Dr. Weiner’s that there was provide that certified men- Colorado does preventing no known method for the occur- any legal tally patients ill “shall not forfeit condition, rence of this that once it oc- legal disability” spe- unless suffer the,ensuing disability might curred contin- 27-10-104, in a court order. 11 cified § notwithstanding ue the cessation of medi- (1982). In v. Colorado C.R.S. Goedecke cation, there a risk Institutions, that Department 198 Colo. respondent might develop that the this con- (1979), 123 declared that certi- 603 P.2d we in dition the not too distant future. The patients drug fied refuse the Prolixin probate court also failed to consider wheth- finding, by “in reached the absence of some tribunal, er a less intrusive treatment alternative competent that the ill- attending psychiatrists impaired judgment was available to the that he ness has so present incapable participating and whether need for in decisions the is sufficiently compel- affecting chotic medication was his health.” Id. at 603 P.2d by a ling any legitimate Incompetence to override interest of at 125. can be shown respondent refusing finding capacity in Fi- lacks the the treatment. or that the nally, probate the court’s order failed to to in the decision unrea- provide for review of the treatment order refusal of treatment is irrational or upon respondent’s the extension of the cer- sonable. Id.

976 Goedecke, the was able to cal decisions lack they compe- since the prescribe making adequate tence to participate in the to use the details of decision LaRue, Gaughan cooperate treatment....” & not The Prolixin. Medina is able to Right a Mental Patient Anti- experts or health his law- with the mental Refuse Institution, psychotic Drugs in an Law yers making a treatment decision. He (1978) (footnote Psychology & Rev. span approximately has an attention omitted). seconds, thirty and has not able to been psychia- participate in discussions with his majority opinion The the court of pos- regarding drug therapy. trist Medina appeals opinion unnecessarily extend the Goedecke, rights judicial sesses but required by the same level of review Goe- are rights majority’s four-part which those to be The manner in decke. test essen- tially amounts protected us in this case. to a substitution of a trial is the issue before judgment W, court’s for of the (Colo.1981). mental 637 P.2d 366 See In re A. experts hospital. health at the state The department of institutions has a le The majority requires a trial court to determine gitimate providing treatment to drug therapy necessary prevent custody protecting those in and in its long-term deterioration patients personnel hospital at the state condition and that a less intrusive treat- by dangerous from and destructive conduct ment alternative is not available. It patients. Addington certified See v. Tex findings beyond clear that such far as, 99 S.Ct. 60 L.Ed.2d U.S. court, expertise of a trial the court (1979). Assembly, The General subse likely would follow the advice ease, quent expert gave health most convinc- hearing when procedure created a for a ing testimony hearing. at the The test laid accept ill refuses to medi by unduly the majority delay down will permits certifying cation. statute The orderly interfere with the administration of petition by treating court to consider hospital. hospitals Psychiatric state physician to have the court enter order by should administered mental health requiring accept treatment or professionals the courts. not forcibly have the treatment adminis simply qualified prescribe courts are not 27-10-111(4.5), tered. C.R.S. § given patients treatment to be at the state paramount importance hospital It is of first instance. treating authorities the institution be was involuntarily Medina certified given profession- broad latitude use their probate psychiatric court for treatment. training experience develop al effec- petitioned probate then state court programs pa- tive therapeutic for certified allowing treating order an- authorities physician charge pa- tients. The of the patient despite to medicate the clearly diagnose tient is best able to objections. The court determined that re- patient’s illness, prescribe appropriate spondent incompetent participate (including the use of the the decision to use I medication.1 would Thorazine), chotic Prolixin drugs and judicial- hold that once a certified is monitor and control treatment and medi- ly incompetent partic- determined to be continuing cation on based observation ipate (the in the medication decision Goe- patient. recognized “[cjourts It test), longer decke no has the cautiously reviewing should arbitrarily tread medi- refuse reads, probate Respondent mentally 1.The court treatment order 1. The ill with a diagnosis paranoia full: evidence in support convincing. thereof was clear having THIS MATTER for come on paranoia As a result 2. and delu- July on 1981 at 10:00 A.M. and the Court by Respondent, Respondent suffered sions having testimony heard the of Kenneth L. able to in a is not decision con- M.D., Weiner, arguments as well as of counsel cerning treatment with medications. the Court FINDS: judgment its 3. Court will substitute Respondent Respondent’s on the basis drugs prescribed treating state authori- first instance. was com-

ties Medina supervision

mitted to mental health

experts charged responsibil- were with

ity for his care and treatment. certified,

A can al- incoippetent posttreatment

ways seek review decision under section 27-10-

I appeals would reverse the court of probate directing

affirm the court’s order treating physician administer respondent. medications to HORTON, guardian

Gari M. natural Horton, Angelita friend of next minor, Plaintiff-Appellant, MONDRAGON, L.

Laverne and Leo F.

Mondragon, Defendants-Appellees.

No. 83CA0737. Appeals,

Colorado Court of

Div. III. 31,1984.

Rehearing Denied Jan. Sept. Denied

Certiorari 1985. refusal to take medications was unreasonable. IT IS THEREFORE ORDERED that: suggests regular attending The evidence that with medi- physician Respondent 1. The Respondent probably experi- will cation most may administer medications anxiety resulting ence less in his to a however, release Thorazine, such as Prolixin and permit less restrictive environment Re- without limitations to the two medicines spondent to live a more stable life. attending physician shall use whatever 4. The medical chart does not reflect good procedures practice medical medical major past side effects from of anti- the use properly would direct monitor and control psychotic testimony medication. The doctor’s the medications. suggests dyskinesia and other tardive also permitting 2. Order the use of invol- This side from the use effects long untary medication shall exist so properly can be medications monitored Respondent is under certification. controlled. copies of this Court issue 3. The Clerk dyskinesia risk is not 5. The of tardive so certified, Order, duly Respondent, great preclude as to so the use of Logan Respondent’s attorney and to Fort medications such as and Tho- chotic razine. Prolixin Mental Health Center.

Case Details

Case Name: People v. Medina

Court Name: Supreme Court of Colorado

Date Published: Sep 9, 1985

Citation: 705 P.2d 961

Docket Number: 83SC7, 83SC12

Court Abbreviation: Colo.