ELEANOR RIESE et al., Plaintiffs and Appellants, v. ST. MARY‘S HOSPITAL AND MEDICAL CENTER, Defendant and Respondent.
No. A034048
First Dist., Div. Two
Dec. 16, 1987
1303
* Review granted March 3, 1988. Review dismissed and opinion ordered published June 22, 1989.
Colette I. Hughes and Morton P. Cohen for Plaintiffs and Appellants.
Peter W. Davis, James M. Wood, Ezra Hendon and Crosby, Heafey, Roach & May for Defendant and Respondent.
OPINION
KLINE, P. J.—This class action presents the question whether psychiatric patients involuntarily committed to mental health facilities under
Appellant Eleanor Riese, on behalf of the class of patients institutionalized under
We hold that appellants have statutory rights to exercise informed consent to the use of antipsychotic drugs in nonemergency situations absent a judicial determination of their incapacity to make treatment decisions, and do not reach the constitutional issues.
STATEMENT OF FACTS
Appellant Riese has a history of chronic schizophrenia, apparently stemming from childhood meningitis. She was first hospitalized in 1968, at age 25. In 1969, an internist prescribed the antipsychotic drug Mellaril; appellant showed immediate improvement, moved into her own apartment and was not hospitalized for approximately 11 years. By 1981, however, appellant had developed bladder problems associated with long-term use of Mellaril. Her medication was changed but she decompensated to the point that she had to be hospitalized for two weeks in 1981. She was rehospitalized in 1982 and placed back on Mellaril on the theory that her bladder was already so damaged that more or less Mellaril would not affect its potential recovery. In 1984, appellant switched doctors and was placed on Moban, which did not help her symptoms. She then stopped seeing the doctor,
Appellant was admitted to respondent hospital as a voluntary patient on June 12, 1985, for an acute exacerbation of chronic schizophrenia. According to the report of the initial consultation, she had previously been treated with Mellaril but had not been taking the drug for five weeks. According to two psychiatrists who reviewed her records, appellant‘s failure to continue this medication was not the cause of the increasing agitation and anxiety, hallucinations and paranoid ideation that led to her hospitalization.
Upon admission, appellant signed a voluntary inpatient‘s consent form for antipsychotic medication, indicating that she had been informed of the nature of the drugs and their possible side effects and understood her right to refuse the drugs. The form specified the drugs Mellaril and Cogentin. On June 16, appellant consented to have her medication changed to Molindane (Moban). On June 17, the medication was changed to Navane, this time without execution of a consent form. On June 18, appellant was switched back to Mellaril, at an increased dosage. Appellant complained that Mellaril made her sleepy but agreed to take 100 milligrams 4 times a day. The next day she complained of dizziness and dry mouth and insisted that the staff had given her too much medication. When appellant became more agitated and refused medication she was forcibly injected.3
At this point, on June 19, appellant was made an involuntary patient under
On June 26, 1985, it was recommended that a conservator be appointed for appellant, who was assertedly unable to provide for her own food, shelter and clothing and delusional about medication and therefore unable or unwilling to accept voluntary treatment. (
On July 10, appellant was discharged to a board and care home, but she did not do well and was readmitted to the hospital on July 12. Her medication was changed to Serentil, with orders providing for intramuscular injections if she refused. Appellant continued to suffer from swollen feet, urinary problems, shaking, memory loss and seizures. While appellant attributes these problems to her use of medications, respondent contends that appellant was delusional about the medications.
DISCUSSION
Antipsychotic Medications
Antipsychotic or, as they are sometimes called, psychotropic or neuroleptic drugs are “customarily used for the treatment of symptoms of psychoses and other severe mental and emotional disorders.” (
Antipsychotic drugs have been described as normative in the sense that they “restore existing imbalance toward the balanced norm ... [and] are generally incapable of creating thoughts, views[,] ideas or opinions de novo, or of permanently inhibiting the process of thought generation.” (Appelbaum & Gutheil, “Rotting with their Rights On“: Constitutional Theory and Clinical Reality in Drug Refusal by Psychiatric Patients (1979) 7 Am.Acad.Psychiatry & L.Bull. 306, 308.) By the same token, they are by intention mind altering in that they act upon thought processes. (Guardianship of Roe (1981) 383 Mass. 415 [421 N.E.2d 40, 52-53]; Rogers v. Okin (D.Mass. 1979) 478 F.Supp. 1342, 1360 affd. in part, reversed in part (1st Cir. 1980) 634 F.2d 650, vacated Mills v. Rogers (1982) 457 U.S. 291 [73 L.Ed.2d 16, 102 S.Ct. 2442] on remand (1st Cir. 1984) 738 F.2d 1.) The drugs have been called “powerful enough to immobilize mind and body.” (Guardianship of Roe, supra, 421 N.E.2d at p. 53.) They “‘possess a remarkable potential for undermining individual will and self-direction, thereby producing a psychological state of unusual receptiveness to the directions of custodians.‘” (Keyhea v. Rushen, supra, 178 Cal.App.3d at p. 531, quoting Gelman, supra, at p. 1751.) Abuses of psychotropic medications in understaffed and inadequately funded public mental hospitals have been documented. (See, e.g., Davis v. Hubbard (N.D.Ohio 1980) 506 F.Supp. 915, 926-927.)
In addition to their universally accepted benefits in the treatment of at least acute patients, antipsychotic drugs have equally well-recognized adverse side effects. These include sedation to the extent of interference with the ability to function normally; akathesia, an irresistible urge to move; pseudo-Parkinsonism (causing mask-like facial expression, body rigidity, tremor, drooling, and a shuffling gait); blurred vision; dry mouth; dizziness or faintness; and low blood pressure. These effects are reversible upon termination or reduced dosage of the medication. On rare occasions, the drugs may cause sudden death. (Keyhea v. Rushen, supra, 178 Cal.App.3d at p. 531; Davis v. Hubbard, supra, 506 F.Supp. 915, 928; Kemna, supra, 6 J. Legal Med. at pp. 111-114.)
A potentially permanent side effect of antipsychotic medication is tardive dyskinesia, a neurological disorder manifested by involuntary, rhythmic and grotesque movements of the face, mouth, tongue, jaw and extremities.
The Right to Refuse Antipsychotic Medication
The rights of involuntarily detained mentally disordered people in California are scrupulously protected by the Lanterman-Petris-Short Act. (
Under LPS, a person may be involuntarily detained in a mental health facility for 72 hours if a peace officer or one of certain specified professionals finds probable cause that the person is a danger to self or others or is “gravely disabled,” that is, if he or she, as a result of a mental disorder, is unable to provide for basic personal needs for food, clothing or shelter. (
A number of provisions of LPS delineate rights held by involuntary patients.
It is one of the cardinal principles of LPS that mental patients may not be presumed incompetent solely because of their hospitalization. As stated in
Respondent‘s claim that LPS affords appellants no right to refuse antipsychotic drugs emphasizes that such right is not listed in
As indicated, the cornerstone of respondent‘s case is the fact that LPS does not explicitly grant appellants the right they claim. For example, after stressing that “[t]he right to refuse antipsychotic medications absent a finding of incompetency is pointedly not included among the statutory rights given persons involuntarily committed under LPS,” respondent argues that those provisions of LPS which confer other rights on such persons, such as the right to refuse “convulsive treatment” and “pyschosurgery” (
The maxim upon which respondent relies “‘requires great caution in its application, and in all cases is applicable only under certain conditions.‘” (2A Sutherland, Statutory Construction, supra, § 47.25, p. 209.) Moreover, the rule “can be overcome by a strong indication of legislative intent or policy.” (Id., § 47.23. p. 194.) As stated by our Supreme Court, “the inference embodied in the maxim inclusio unius est exclusio alterius is not to be drawn when to do so would frustrate a contrary expression of legislative will ....” (Fields v. Eu (1976) 18 Cal.3d 322, 332 [134 Cal.Rptr. 367, 556 P.2d 729]; accord, Larcher v. Wanless (1976) 18 Cal.3d 646, 658 [135 Cal.Rptr. 75, 557 P.2d 507].)
In this case, the treatment of a statutory omission as an exclusion would clearly frustrate a contrary expression of legislative purpose: throughout the statutory scheme the Legislature repeatedly admonishes
The foregoing provisions were obviously calculated to prohibit the use of legislative silence as a basis upon which to deprive mentally ill persons not adjudicated incompetent of any right enjoyed by others. It should be pointed out, in this connection, that the right of persons not adjudicated incompetent to give or withhold consent to medical treatment is protected by the common law of this state (Cobbs v. Grant (1972) 8 Cal.3d 229, 242-243 [104 Cal.Rptr. 505, 502 P.2d 1]; Keyhea v. Rushen, supra, 178 Cal.App.3d 526, 540; Foy v. Greenblott (1983) 141 Cal.App.3d 1, 11 [190 Cal.Rptr. 84]; Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127, 1137-1138 [225 Cal. Rptr. 297] review den. June 5, 1986; Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 1015 [195 Cal.Rptr. 484, 47 A.L.R.4th 1]) and by the constitutional right to privacy. (Keyhea v. Rushen, supra, 178 Cal.App.3d at p. 540; Foy v. Greenblott, supra, 141 Cal.App.3d at p. 11; Bartling v. Superior Court (1984) 163 Cal.App.3d 186, 195 [209 Cal.Rptr. 220] on remand Bartling v. Glendale Adventist Medical Center (1986) 184 Cal.App.3d 97 [228 Cal.Rptr. 847]; 58 Ops.Cal.Atty.Gen. 849, 850-852 (1975).)10 This right to control “intrusions of [one‘s] bodily integrity” (Bar-
We conclude that the failure of LPS to explicitly grant involuntary patients the right to refuse drug treatment, which respondent relies upon, cannot be deemed as significant as the failure of the statutory scheme to explicitly deny that right. As stated in Rogers v. Com‘r of Dept. of Mental Health, supra, 458 N.E.2d 308, 313, “[t]he fact that [a statute] expressly authorizes patients to refuse psychosurgery and electroconvulsive treatment does not, as the defendants assert, exclude by implication the patients’ rights to make treatment decisions as to antipsychotic drugs.” (Id., at p. 313.)
Moreover, as earlier explained, LPS is not silent on the question whether involuntary patients may be denied any right on the ground that they are of unsound mind.
The fact that voluntary patients are required to give informed consent to treatment with antipsychotic drugs is also significant. Patients who refuse drugs do so for a variety of reasons; while the majority are apparently delusional or the products of the mental illness, others are more rational. (Appelbaum & Hoge, Empirical Research on the Effects of Legal Policy on the Right to Refuse Treatment, in The Right to Refuse Anti-Psychotic Medication (ABA Com. on the Mentally Disabled 1986) 87, 91-92; Kemna, supra, 6 J.Legal Med. at pp. 115-116; Appelbaum & Gutheil, supra, 7 Am.Acad.Psychiatry & L.Bull. at pp. 311-315; Appelbaum & Gutheil, Drug Refusal: A Study of Psychiatric Inpatients (1980) 137 Am.J.Psychiatry 340, 344-345.) In one study, the only patients who refused treatment persistently (more than 24 hours) were judged to be delusional about the medication, suggesting that refusal is more a medical than a legal problem. (Appelbaum & Gutheil, supra, 7 Am. Acad. Psychiatry & L.Bull. at p. 313.)14
Additionally, LPS provides that conservatees lose the right to refuse treatment only if a court order specifically gives the right to refuse or consent to treatment to the conservator. (
Reasonable minds can perhaps differ on the question whether involuntarily committed mental patients should be presumed incompetent to make treatment decisions. However, such a presumption was demonstrably thought unwise and prohibited by those who enacted LPS. Accordingly, we hold that, absent a judicial determination of incompetence, antipsychotic drugs cannot be administered to involuntarily committed mental patients in nonemergency situations without their informed consent.
The Role of the Court
Respondent urges that we adopt the federal approach to the problem of antipsychotic drug refusal in which the role of the court is merely to ensure that professional judgment has been exercised in the decision to medicate a patient. (Johnson v. Silvers (4th Cir. 1984) 742 F.2d 823, 825; Project Release v. Prevost (2d Cir. 1983) 722 F.2d 960, 979-981; Rennie v. Klein, supra, 720 F.2d 266, 269-270; Stensvad v. Reivitz (W.D.Wis. 1985) 601 F.Supp. 128, 131; R.A.J. v. Miller (N.D.Texas 1984) 590 F.Supp. 1319, 1321; Sabo v. O‘Bannon (E.D.Pa. 1984) 586 F.Supp. 1132, 1140 disapproved on another point in Blatz v. Shelley (N.D.Ill. 1987) 661 F.Supp. 169, 178, fn. 36; United States v. Leatherman (D.C. Cir. 1983) 580 F.Supp. 977, 980 app. dism. and case remanded (D.C. Cir. 1984) 729 F.2d 863.)15 Under-
California is not bound to follow the federal standard. The United States Supreme Court has stated, in the context of the very issue before us, that state law may provide greater substantive and procedural rights than federal law and, if so, is determinative. (Mills v. Rogers, supra, 457 U.S. 291, 299-300 [73 L.Ed.2d 16, 22-24].) LPS represents a considered decision of our Legislature to impose certain constraints upon the control that medical institutions and health care professionals may unilaterally exert over mental patients committed to their care.
The act accepts the proposition that, as stated by the highest court of New York, mental illness “often strikes only limited areas of functioning, leaving other areas unimpaired, and consequently ... many mentally ill persons retain the capacity to function in a competent manner.” (Rivers v. Katz, supra, 495 N.E.2d at p. 342; Rogers v. Okin, supra, 478 F.Supp. at p. 1361; Davis v. Hubbard, supra, 506 F.Supp. 915, 927 [“roughly 85% of the patients (of a state mental hospital) are capable of rationally deciding whether to consent to (use of psychotropic drugs).“]; Brooks, The Constitutional Right to Refuse Antipsychotic Medications (1980) 8 Bull. of Am.Acad.Psychiatry & L.Bull. 179, 191.) Consequently, the task for the court is simply to determine whether a patient refusing medication is competent to do so despite his or her mental illness. The determination of this capacity “is uniquely a judicial, not a medical function.” (Rivers v. Katz, supra, 495 N.E.2d at p. 343.) As stated by an eminent psychiatrist, “Competence is not a clinical, medical, or psychiatric concept. It does not derive from our understanding of health, sickness, treatment, or persons as patients. Rather, it relates to the world of law, to society‘s interest in deciding whether an individual should have certain rights (and obligations) relating to person, property and relationships.” (Michels, Competence to Refuse Treatment, in Doudera & Swazey, Refusing Treatment in Mental Health Institutions—Values in Conflict, supra, at p. 115; accord, Gutheil & Appelbaum, Clinical Handbook of Psychiatry and the Law (1982) at p. 215.) Though judicial determinations of competency to give informed consent to proposed treatment are not easy, they are no more difficult than other types of competency assessments required to be made by trial courts under LPS
Provisions of LPS governing the determination required when a patient‘s capacity to consent to convulsive therapy is called into question seem to us equally appropriate when the question is capacity to consent to antipsychotic medication. LPS provides that there must be an evidentiary hearing directed to the question whether the patient is able to understand and knowingly and intelligently act upon information required to be given regarding the treatment. (
Judicial determination of the specific competency to consent to drug treatment should focus primarily upon three factors: (a) whether the patient is aware of his or her situation (e.g., if the court is satisfied of the existence of psychosis, does the individual acknowledge that condition); (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention (e.g., “an acutely
If an involuntary patient is judicially determined to possess the capacity to give informed consent to the use of antipsychotic drugs and refuses to do so, the patient may not be required to undergo the treatment. If the patient is judicially determined incapable of giving informed consent, and if he or she is being detained for 72-hour treatment and evaluation under
Although available empirical evidence suggests that judicial intervention will not be required in the overwhelming number of cases in which an antipsychotic drug has been prescribed, because involuntarily committed
The determination by a physician that an individual is mentally incompetent to refuse drug treatment cannot be exempted from judicial evaluation on the ground that the medical determination rests upon an unimpeachable scientific foundation. “[B]ecause of the imprecision of the criteria and difficulty inherent in any attempt to compass the human mind” (People v. Burnett, supra, 188 Cal.App.3d 1314, 1329, citing Gould, The Mismeasure of Man (1981)), determinations of mental competence simply cannot achieve scientific certainty. Moreover, the forcible administration of powerful mind-altering drugs also involves moral and ethical considerations not solely within the purview of the medical profession, and must be measured by the social consensus reflected in our laws. Exemption of these decisions from such external evaluation would invest physicians with a degree of power over others that cannot be squared with the intent of our Legislature and with the great value our society places on the autonomy of the individual. Such complete power also would not serve and might even be inimical to the genuine interests of the medical profession.
Unless the incompetence of a person refusing drug treatment has been judicially established, “it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own desires.” (Rivers v. Katz, supra, 495 N.E.2d at p. 341.) The Legislature has made it eminently clear that this right does not disappear upon involuntary commitment.
The judgment is reversed and the case remanded for proceedings consistent with the views expressed herein.
Rouse, J., and Benson, J., concurred.
BENSON, J.—I concur with the decision reached by my colleagues but do so solely on the basis that
In my opinion, my colleagues’ discussion of
I share my colleagues acknowledgment and concern that “the interposition of the courts ... will likely create some logistical problems and delay. ...” While I am naturally concerned about the consequences of our decision on the already overburdened trial courts, my greater concern is directed toward the decision‘s impact upon the short-term crisis intervention program envisioned by the Lanterman-Petris-Short Act (LPS) and upon the medical professionals who must treat the patient who has been involuntarily confined because he or she is gravely disabled or a danger to self or others. The time a medical professional is required to devote going to, while at, and returning from a judicial hearing, is time lost from patient care. The longer an incompetent patient may lawfully reject antipsychotic medication which, in the judgment of medical professionals, may offer therapeutic benefit, the more tenuous the possibility for effective crisis management. The matter of developing procedures which are the least intrusive to the medical scheme envisioned by LPS should be, in my judgment, a matter of legislative priority.