90 Ohio St. 3d 176 | Ohio | 2000
Lead Opinion
The issue in this case is whether a probate court must find that an involuntarily committed mentally ill person is a danger to himself/herself or others before the court may issue an order permitting employees of the commitment facility to administer antipsychotic medication to the patient against his/her wishes. For the reasons that follow, we find that a court may issue an order permitting the administration of antipsychotic medication
I
The right to refuse medical treatment is a fundamental right in our country, where personal security, bodily integrity, and autonomy are cherished liberties. These liberties were not created by statute or case law. Rather, they are rights
In Washington v. Harper (1990), 494 U.S. 210, 221, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178, 198, the United States Supreme Court determined that persons suffering from a mental illness have a “significant liberty interest” in avoiding the unwanted administration of antipsychotic drugs. That liberty interest is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” Id. at 221-222, 110 S.Ct. at 1036, 108 L.Ed.2d at 198. Likewise, Section 16, Article I of the Ohio Constitution encompasses due process language that provides substantially the same safeguards as does the Fourteenth Amendment.
The right to refuse medication, however, is not absolute and it must yield when outweighed by a compelling governmental interest. Cruzan v. Dir., Mo. Dept. of Health (1990), 497 U.S. 261, 278-279, 110 S.Ct. 2841, 2851-2852, 111 L.Ed.2d 224, 241-242. See, also, State v. Williams (2000), 88 Ohio St.3d 513, 523, 728 N.E.2d 342, 353-354 (“[Rjights outlined in Section 1, Article I [of the Ohio Constitution] will, at times, yield to government intrusion when necessitated by the public good”). In order for us to determine whether a court must find a mentally ill person to be a danger to himself/herself or others before it may issue an order permitting forced medication, we must first determine which, if any, state interests outweigh the individual’s right to refuse medication.
II
The first step in our analysis is to examine the individual’s interest in avoiding forced medication through treatment with antipsychotic drugs. We will then determine under what circumstances, if any, that interest must yield to competing governmental interests.
The intrusion is “particularly severe” when the medications administered by force are antipsychotic drugs because of the effect of the drugs on the human body. Riggins v. Nevada (1992), 504 U.S. 127, 134, 112 S.Ct. 1810, 1814, 118 L.Ed.2d 479, 488. Antipsychotic drugs alter the chemical balance in a patient’s brain producing changes in his or her cognitive processes. Id. at 134, 112 S.Ct. at 1814, 118 L.Ed.2d at 488; Harper, 494 U.S. at 229, 110 S.Ct. at 1041, 108 L.Ed.2d at 203. See, also, Winick, The Right to Refuse Mental Health Treatment (1997) 61-65 (“Winick”). In fact, an alteration of a patient’s cognitive process is the intended result of the antipsychotic drugs. The drugs are administered with the expectation that the resulting changes will “assist the patient in organizing his or her thought processes and regaining a rational state of mind.” Harper, 494 U.S. at 214, 110 S.Ct. at 1032, 108 L.Ed.2d at 193.
The interference with one’s liberty interest is further magnified by the negative side effects that often accompany antipsychotic drugs, some of which can be severe and/or permanent. Riggins, 504 U.S. at 134, 112 S.Ct. at 1814, 118 L.Ed.2d at 488; Harper, 494 U.S. at 229, 110 S.Ct. at 1041, 108 L.Ed.2d at 203; Winick at 72-75. The most common side effects of the antipsychotic drugs are Parkinsonian syndrome, akathisia, dystonia, and dyskinesia. Harper, 494 U.S. at 229-230, 110 S.Ct. at 1041, 108 L.Ed.2d at 203; Mills v. Rogers (1982), 457 U.S. 291, 293, 102 S.Ct. 2442, 2445, 73 L.Ed.2d 16, 19, fn. 1; Rivers v. Katz (1986), 67 N.Y.2d 485, 490, 504 N.Y.S.2d 74, 76, 495 N.E.2d 337, 339, fn. 1; Winick at 72-75; Gutheil & Appelbaum, “Mind Control,” “Synthetic Sanity,” “Artificial Competence,” and Genuine Confusion: Legally Relevant Effects of Antipsychotic Medication (1983), 12 Hofstra L.Rev. 77,107.
“Parkinsonian syndrome * * * consists of muscular rigidity, fine resting tremors, a masklike face, salivation, motor retardation, a shuffling gait, and pill-rolling hand movements. Akathisia is a feeling' of motor restlessness or of a compelling need to be in constant motion * * *. Dystonia involves bizarre muscular spasm, primarily of the muscles of the head and neck, often accompanied by facial grimacing, involuntary spasm of the tongue and mouth interfering with speech and swallowing, oculogyric crisis marked by eyes flipping to the top of the head in a painful upward gaze persisting for minutes or hours, convulsive movements of the arms and head, bizarre gaits, and difficulty walking. The
Virtually all of these reactions are reversible within hours or days of discontinuing the antipsychotic medication. Id. at 73. However, tardive dyskinesia, which consists of slow, rhythmical, repetitive, involuntary movements of the mouth, lips, and tongue, is permanent and there is no known effective treatment for managing its symptoms. Id. at 73-74; Harper, 494 U.S. at 230, 110 S.Ct. at 1041, 108 L.Ed.2d at 203; Rogers, 457 U.S. at 293, 102 S.Ct. at 2445, 73 L.Ed.2d at 19, fn. 1.
Experts disagree as to the percentage of patients who will develop tardive dyskinesia after being treated with antipsychotic drugs. Winick at 74, fn. 69; Harper, 494 U.S. at 230, 110 S.Ct. at 1041, 108 L.Ed.2d at 203. In Harper, the United States Supreme Court found sufficient evidence to support the finding that ten to twenty-five percent of patients treated with antipsychotic medication developed tardive dyskinesia and among that group, sixty percent had mild symptoms while ten percent demonstrated more severe symptoms. Harper, 494 U.S. at 230, 110 S.Ct. at 1041, 108 L.Ed.2d at 204.
Another potential side effect of antipsychotic medication is neuroleptic malignant syndrome. This is a rare but potentially deadly syndrome that develops quickly and leads to death in twenty-five percent of those who develop it. Id., 494 U.S. at 230, 110 S.Ct. at 1041, 108 L.Ed.2d at 203; Winick at 74.
In light of the foregoing, it is clear why the United States Supreme Court recognized that a substantial liberty interest was at stake in these cases. Whether the potential benefits are worth the risks is a personal decision that, in the absence of a compelling state interest, should be free from government intrusion.
Ill
We now turn to the second step of our analysis to determine whether, in some circumstances, a person’s liberty interest in refusing antipsychotic medication is outweighed by a competing government interest.
A
One state interest that is sufficiently compelling to override an individual’s decision to refuse antipsychotic medication is the state’s interest in preventing mentally ill persons from harming themselves or others. Many courts have held that hospital personnel and prison officials may administer antipsychotic drugs to mentally ill persons to prevent harm. See, e.g., Harper, supra; Riggins, supra; Rennie v. Klein (C.A.3, 1983), 720 F.2d 266 (en banc); Rogers v. Okin (C.A.1, 1984), 738 F.2d 1; Bee v. Greaves (C.A.10, 1984), 744 F.2d 1387, certiorari denied
The requirement that medical personnel determine that there is an imminent danger of harm cannot be overemphasized. The police power may not be asserted broadly to justify keeping patients on antipsychotic drugs to keep them docile and thereby avoid potential violence. Moreover, this governmental interest justifies forced medication only as long as the emergency persists. Furthermore, the medication must be medically appropriate for the individual and it must be the least intrusive means of accomphshing the state’s interest, i.e., preventing harm.
Accordingly, wé hold that when an involuntarily committed mentally ill patient poses an imminent threat of harm to himself/herself or others, the state’s interest in protecting its citizens outweighs the patient’s interest in refusing antipsychotic medication. Authority for invoking the state’s interest flows from the police power of the state. Whether an involuntarily committed mentally ill patient poses an imminent threat of harm to himself/herself or others warranting the administration of antipsychotic drugs against the patient’s will is uniquely a medical, rather than a judicial, determination to be made by a qualified physician. A physician may order the forced medication of an involuntarily committed mentally ill patient with antipsychotic drugs when the physician determines that (1) the patient presents an imminent danger of harm to himself/herself or others, (2) there are no less intrusive means of avoiding the threatened harm, and (3) the medication to be administered is medically appropriate for the patient.
While this holding appears to be placing tremendous power and authority in the hands of individual physicians, we are nevertheless reminded that physicians are “dedicated to providing competent medical service with compassion and respect for human dignity.” Principle I, American Medical Association Code of Medical Ethics (1994) XV. “I will follow that system of regimen which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous.” The Oath of Hippocrates, 38
In the case at bar, appellant’s treating physician testified that appellant was not an imminent danger to himself or others. The hospital, therefore, was precluded from relying on the state’s police power to override appellant’s decision to refuse medication.
B
A second state interest recognized by many courts to be sufficiently compelling to override a mentally ill patient’s decision to refuse antipsychotic medication is the state’s parens patriae power.
A state’s parens patriae power allows it to care for citizens who are unable to take care of themselves. Addington v. Texas (1979), 441 U.S. 418, 426, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323, 331. Because this power turns on a person’s inability to care for himself/herself, it is legitimately invoked in forced-medication cases only when the patient lacks the capacity to make an informed decision regarding his/her treatment. Davis, 506 F.Supp. at 935-936; Rivers, 67 N.Y.2d at 496, 504 N.Y.S.2d at 80, 495 N.E.2d at 343 (“[T]he sine qua non for the state’s use of its parens patriae power as justification for the forceful administration of mind-affecting drugs is a determination that the individual to whom the drugs are to be administered lacks the capacity to decide for himself whether he should take the drugs.”). Thus, we hold that when an involuntarily committed mentally ill patient, who does not pose an imminent threat of harm to himself/herself or others, lacks the capacity to give or withhold informed consent regarding his/her treatment, the state’s parens patriae power may justify treating the patient with
We recognize that this holding is inconsistent with our statement in Milton that “the state may not act in a parens patriae relationship to a mental hospital patient unless the patient has been adjudicated, incompetent.” (Emphasis added.) Id. at 23, 29 OBR at 376, 505 N.E.2d at 257-258. We no longer adhere to that absolutist position.
We accept the concept of specific incompetency, at least in the context addressed herein. Therefore, a person need not be adjudicated incompetent before the state’s parens patriae power is legitimately invoked in a forced medication case. It is sufficient that the court find by clear and convincing evidence that the patient lacks the capacity to give or withhold informed consent regarding treatment. We believe that requiring an adjudication of general incompetence in these cases would result in the unnecessary removal of additional civil rights particularly when a specific finding of lack of capacity regarding treatment is sufficient. Furthermore, it allows the patient to avoid the added stigma that often attaches to a person who has been adjudicated incompetent.
Perhaps contrary to common belief, a court’s determination that a person is mentally ill and subject to involuntary commitment in a hospital is not equivalent to a finding that the person is incompetent. Milton, 29 Ohio St.3d at 22, 29 OBR at 375, 505 N.E.2d at 257; Rivers, 67 N.Y.2d at 494-495, 504 N.Y.S.2d at 79, 495 N.E.2d at 341-342; Appelbaum & Gutheil, Clinical Handbook of Psychiatry and the Law, at 220 (“The mere presence of psychosis, dementia, mental retardation, or some other form of mental illness or disability is insufficient in itself to
Based on the foregoing, it is clear that mental illness and incompetence are not one and the same. Therefore, the state may not rely on its parens patriae power to justify making treatment decisions for a mentally ill person simply because that person has been involuntarily committed. Before invoking this power, the state must first prove by clear and convincing evidence that the patient lacks the capacity to give or withhold informed consent regarding treatment. Whether an involuntarily committed mentally ill patient, who does not pose an imminent threat of harm to himself/herself or others, lacks the capacity to give or withhold informed consent regarding treatment is uniquely a judicial, rather than a medical, determination. If a court does not find that the patient lacks such capacity, then the state’s parens patriae power is not applicable and the patient’s wishes regarding treatment will be honored, no matter how foolish some may perceive that decision to be.
Conversely, when a court finds by clear and convincing evidence that a patient lacks the capacity to give or withhold informed consent regarding treatment, then the state’s interest in caring for its citizen overrides the patient’s interest in refusing treatment. When, in addition, the court also finds by clear and convincing evidence that the benefits of the antipsychotic medication outweigh the side effects, and that there is no less intrusive treatment that will be as effective in treating the illness, then it may issue an order permitting forced medication of the patient. Accordingly, we hold that a court may issue an order permitting hospital employees to administer antipsychotic drugs against the wishes of an involuntarily committed mentally ill person if it finds, by clear and convincing evidence, that (1) the patient does not have the capacity to give or
IV
Because of the significant liberty interest affected when an individual is medicated against his/her will with antipsychotic medication, we do not come to this decision lightly. We have attempted to craft a decision that acknowledges a person’s right to refuse antipsychotic medication, and yet recognizes that mental illness sometimes robs a person of the capacity to make informed treatment decisions. Only when a court finds that a person is incompetent to make informed treatment decisions do we permit the state to act in a paternalistic manner, making treatment decisions in the best interest of the patient.
We also note that, in making our decision, we took into consideration not only the potential severe side effects of antipsychotic drugs, but also the well-documented therapeutic benefits of antipsychotic medication. “ ‘Psychotropic medication is widely accepted within the psychiatric community as an extraordinarily effective treatment for both acute and chronic psychoses, particularly schizophrenia.’ ” Harper, 494 U.S. at 226, 110 S.Ct. at 1039, 108 L.Ed.2d at 201, fn. 9, quoting Brief for American Psychological Association et al. as amici curiae. See, also, Winick at 70. Prior to the use of antipsychotic medication in the treatment of schizophrenia and related psychoses, persons suffering from these illnesses were placed in hospitals with little chance of being released. Because these mental illnesses are frequently manifested by uncooperative behavior, psychotherapy is not an effective treatment. Hospitals were, therefore, providing nothing more than custodial care to these patients. Since physicians began treating mental illnesses with antipsychotic medication in the 1950s, the number of mentally ill persons requiring long-term hospitalization has been greatly reduced. Winick at 68-69; Gutheil & Appelbaum, 12 Hofstra L.Rev. at 99-101; Riese v. St. Mary’s Hosp. & Med. Ctr. (1987), 209 Cal.App.3d 1303, 1310-1311, 271 Cal.Rptr. 199, 203.
We believe that a failure to recognize the state’s parens patriae power in these cases would result in the warehousing of those patients who, against their best interest, refuse medication when they do not have the capacity to comprehend their decision. We believe such a result is inhumane and, therefore, unacceptable.
In the case at bar, the probate court found that appellant lacked the capacity to give or withhold informed consent regarding his treatment, thereby triggering the state’s parens patriae power. The additional findings required by our
V
One last issue remains. We indicated that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects each person’s liberty interest in refusing medication. Up to this point, we have addressed mainly substantive due process issues, e.g., the factual circumstances that must exist before antipsychotic drugs may be administered to a patient against his/her wishes. Although appellant did not raise any procedural due process issues in the instant case, we believe it advisable that we discuss the procedural due process that must be afforded in a forced medication proceeding, ie., the procedures that must be followed in determining the pertinent facts.
As indicated previously, when the state’s police power is invoked, a trained physician determines the relevant facts. The physician is bound by his profession to follow the appropriate accepted medical guidelines when making his/her findings.
We now turn to the procedures required when determining whether the forced medication of a mentally ill person pursuant to the state’s parens patriae power outweighs an involuntarily committed mentally ill person’s interest in refusing antipsychotic medication. We have stated that when a treating physician claims that the state’s parens patriae power permits forced medication, such determination is a uniquely judicial function. Accordingly, if the patient is not represented by an attorney, then an attorney must be appointed to represent the patient; an independent “psychiatrist or a licensed clinical psychologist and a licensed
Additional procedures, such as periodic hearings to reevaluate the patient’s capacity and the efficacy of the treatment, will be necessary in those cases where an order is issued permitting the forced administration of drugs. We realize that each forced medication case is unique and, therefore, we do not set specific guidelines other than to state that all court orders permitting the administration of antipsychotic drugs against a patient’s wishes should be periodically reviewed, and continued forced medication should be substantiated by competent medical evidence. Appropriate motions to continue forced medication may be filed as the need arises. A motion to continue forced medication is subject to the same procedural safeguards as an original motion for forced medication.
As stated above, appellant did not argue that his procedural due process rights were violated in the instant case. However, our review of the record indicates that the procedures followed by. the probate court were sufficient.
Conclusion
For the reasons set forth above, we affirm the judgment of the court of appeals.
Judgment affirmed.
. In this opinion we refer to medicating patients with antipsychotic drugs. We wish to make clear that when a court is justified in allowing the administration of antipsychotic drugs against the patient’s wishes, it is also justified in allowing, against the patient’s wishes, the administration of those medications necessary to alleviate side effects of the antipsychotic drugs.
. Parens patriae means “parent of Ms or her country,” and refers to “[t]he state regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves.” Black’s Law Dictionary (7 Ed.1999) 1137.
. While we no longer approve of the statement in Milton regarding when the parens patriae power may be invoked, we nevertheless recognize that the decision in Milton was proper and fully supported. Milton was decided in the context of a religious objection by a competent individual, and the parens patriae power was not at issue in that decision.
. The exception is, of course, where the state’s police power is implicated.
. We recognize that an argument can be made that the question concerning appellant now before us is moot because he is voluntarily taking antipsychotic medications. We find, however, that there is no evidence in the record that appellant has recovered from his mental illness or that he has been released from the Lewis Center. Should appellant refuse antipsychotic medication in the future, which is possible given his medical condition, it is reasonable to expect that he would again be subject to an action for forced medication. Thus, the issue is one that is capable of repetition, yet evading review, and as such it is not moot. State ex rel. The Repository v. Unger (1986), 28 Ohio St.3d 418, 420, 28 OBR 472, 474, 504 N.E.2d 37, 39. See, also, Washington v. Harper (1990), 494 U.S. 210, 218-219, 110 S.Ct. 1028, 1035, 108 L.Ed.2d 178, 196. In any event, this case involves a matter of public or great general interest and, therefore, the court is vested with the jurisdiction to hear the appeal, even if the case were moot. In re Appeal of Suspension of Huffer from Circleville High School (1989), 47 Ohio St.3d 12, 14, 546 N.E.2d 1308, 1310.
. The language in R.C. 5122.14 is used and now adopted in a different context.
Concurrence Opinion
concurring in part. I concur with the court’s holding and all of the syllabus paragraphs except paragraphs three and four. In my view, paragraphs three and four of the syllabus answer important legal questions that are not present in this particular case. I would save the resolution of those issues for
